tion on the north side of plaintiff's 22 acres, "hard rain." While the evidence shows that, of land. Plaintiff's land is lower than the although the season of 1915 was a wet seaembankment of the railroad. The creek is son and the embankment had been sliding on plaintiff's land about 75 feet south of more or less since the thaw in the spring, the railroad tracks. Foster creek originates there was no evidence that the creek was so several miles back and north of the railroad obstructed before this heavy rain that the in the hills of Ray county above the Missouri | water was forced onto the surrounding land; river. It flows under the railroad about but there was evidence that there was a con11⁄2 miles west of plaintiff's land. A short siderable slide at the time of this large rain, distance east of the place it was obstructed and that at that time the creek was so chokby defendants, it turns in a southeasterly di- ed as to overflow the surrounding lands, 22 rection and flows about three-fourths of a acres of plaintiffs land to the depth of a foot. mile and empties into the Missouri river. The This overflow was referred to as a "flood." railroad embankment at the place the creek One witness said that it looked the same as was obstructed was built upon bottom land, the Missouri river. In considering this subthe earth being of a seepy nature. The com-ject we must take the evidence in its most pany, for at least two years previous to the favorable light to defendants, and in view flooding of plaintiff's land, had suffered from of this we think there was ample evidence slides of the embankment to the south or to- to afford an inference that it was the heavy wards the creek. The summer of 1915 was rain that caused the slide that finally stopped one of a great many rains, and the high em- up the creek and that this rain was an exbankment maintained by the railroad had traordinary and unusual one. slipped or slided at various times during that summer so that it would leave the tracks suspended above the roadbed. To remedy this the company had caused hundreds of loads of dirt, rock, and various other débris to be hauled and dumped on this embank-ligence was one of the proximate causes of ment; but, on account of the nature of the earth upon which this added weight was placed, the embankment continued to slip and slide toward the creek until finally a heavy rain came about the first of July caus

ing a further slide of about 200 feet of earth from the embankment into the creek, so that the latter was completely obstructed resulting in a very large volume of water being diverted upon plaintiff's land destroying his crops thereon and cutting away and destroying between one and two acres of land belonging to

him.

[1] Among the defenses pleaded was "unprecedented and extraordinary rainfall" or act of God. Plaintiff's instruction No. 1 covering the entire case and directing a verdict entirely ignored the question of unprecedented rainfall. This was error. Cooney v. Pryor, 203 S. W. 630, Riffe v. Wabash Railway, 207 S. W. 78, and Paulson v. Wabash Railway, 207 S. W. 81, both decided at this sitting but not yet officially reported.

[2] But it is contended by plaintiff that there was no evidence of an extraordinary rainfall. We are unable to agree to this. It is true that some of plaintiff's witnesses testified that the rain occurring at the time of the flooding of plaintiff's lands was no greater than had occurred in prior years, but there was also evidence that this rain was a "heavy rain," "unusual rain," and

[3] The court properly refused defendants' instructions. Defendants' instructions B and C do not correctly state the law; they ignore the fact that, if defendants' negligence concurred with the act of God and their neg1 the damages, they would still be liable. Shearman & Redfield on the Law of Negligence (6th Ed.) par. 39, p. 76; Benton v. St. Louis, 248 Mo. 98, 154 S. W. 473; McDermott v. Ry., 87 Mo. loc. cit. 302; Schmidt v. St. Louis Transit Co., 140 Mo. App. 182, 120 S. W. 96; Harrison v. K. C. El. Light Co., 195 Mo. loc. cit. 623, 93 S. W. 951, 7 L. R. A. (N. S.) 293; Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966; Wright v. Kansas City Terminal Co., 195 Mo. App. 480, 193 S. W. 963.

[4] Instructions F and G in part tell the jury that, even if the embankment had slipped and was "seepy," defendants were not thereafter required to anticipate that it would slide into the creek. These instruc tions sought to invade the province of the jury, as it was for the jury to say if defendants should have so anticipated under the circumstances. Instruction E is a demurrer to the evidence. Plaintiff made out a case, and the court had jurisdiction of the cause. This jurisdictional point, urged by defendants, is the same one made by them in the cases of Riffe v. Wabash Railway, supra, and Paulson v. Wabash Railway, supra; and, as those cases thoroughly discuss and settle the point against defendants, it is unneces sary to again go into the matter.

The judgment is reversed, and the cause remanded. All concur.

CLAY V. MARMAR. (No. 17-2608.)

station beyond, could rightfully assume conductor was not exceeding his authority in inviting him to alight, on train being required, on ac

(Commission of Appeals of Texas, Section B. count of freight train, to stop a few yards short

SADLER, J. This was a suit in county court by Marmar to recover property of the value of $250, or its value.

The judgment of the Court of Civil Appeals is final. 156 S. W. 1125. The Supreme Court is without jurisdiction. Cole v. State, 106 Tex. 472, 170 S. W. 1036.

The writ should be dismissed.

PHILLIPS, C. J. The recommendation of the Commission is adopted. The case is dismissed for want of jurisdiction.

ST. LOUIS SOUTHWESTERN RY. CO. OF
TEXAS v. WOODALL. (No. 16-2607.)
(Commission of Appeals of Texas, Section A.
Dec. 21, 1918.)

1. CARRIERS 280(1)-DUTY OF CARRIER-
DEGREE OF CARE.

Instruction that carrier is required to exercise the "highest degree of care possible" for safety of passengers demands too much. 2. CARRIERS 303(11)—INJURY TO PASSENALIGHTING-LIABILITY-CONDUCTOR'S

GER

INVITATION.

Whether carrier was under contractual obligation to allow passenger to alight where he did is immaterial, as regards liability for injury; he being rightfully on the train, and alighting at conductor's invitation.

3. CARRIERS 333(3)-PASSENGER ALIGHTING CONDUCTOR'S INVITATION - ASSUMPTION AS TO AUTHORITY.

A passenger who, because train did not regularly stop at his station, had ticket for

333(3)-PASSENGER ALIGHTCONDUCTOR'S INVITATION ASSUMPTION AS TO SAFETY.

ING

A passenger invited to alight when train at night was required to stop a short distance from station could rightfully assume conductor was not inviting him to alight at an unsafe place.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by John R. Woodall against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (159 S. W. 1012), and defendant brings error, plaintiff making cross-assignments. Reversed and remanded.

E. B. Perkins, of Dallas, and Daniel Upthegrove, of St. Louis, Mo., for plaintiff in er

ror.

Allen & Allen, of Dallas, for defendant in error.

TAYLOR, J. [1] The main question presented for determination is: Did the Court of Civil Appeals err in holding that the following paragraph of the court's charge correctly defines the care required by the defendant in error in the transportation of its passengers:

"Fourth. On the claim of plaintiff for damages for personal injuries, you are instructed that railway companies as carriers of passengers are required to exercise the highest degree of care possible for the safety of their passengers, both while they are being carried on its trains and while alighting therefrom, and a failure to exercise such care is negligence. They are not, however, to be regarded as insurers of the safety of their passengers."

The facts to which the foregoing charge is applied are, briefly, that the plaintiff pur

chased from the Houston & Texas Central Railroad Company at Dallas a through ticket over that line and plaintiff in error's line from Dallas to Brownsboro, via Corsicana.

Plaintiff went to Corsicana over the H. & T. C. line, and then took passage for Brownsboro on the defendant in error's limited train. Soon after boarding said train, he was advised by the conductor that it did not stop at Brownsboro, and thereupon paid his fare to Chandler, a place beyond Brownsboro, where the train was scheduled to stop. When the train reached Brownsboro, freight train was standing partly on the main track and partly on a siding, too short to hold the entire train, which made it necessary for the passenger train on which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a

We are of opinion that the judgments of the trial court and the Court of Civil Appeals should be reversed, and the cause remanded.

the plaintiff was riding to stop about 200 | B. & T. Ry. Co. v. Johansen, 107 Tex. 336, or 300 yards from the station and "saw by" 179 S. W. 853. the freight train. When the stop was made during the night at Brownsboro, the plaintiff, having been told by the conductor that the train was at Brownsboro and that he would let him off, alighted from the train. It being further to the ground than plaintiff thought, he lost his balance after striking the ground and fell in a pile of railroad iron and cross-ties, injuring himself. 159 S. W. 1012.

The Supreme Court held in the case of I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829, that it is erroneous to charge the jury that a carrier must use "all possible care" for the safety of its passengers, and reannounced as the correct rule of liability the following:

"Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances." Railway v. Halloren, 53 Tex. 53, 37 Am. Rep. 744.

The charge complained of in this case is subject to the same objection as the one disapproved in the Welch Case, and has a broader and more unlimited meaning with respect to the degree of care required than is consistent with the foregoing rule. The discrepancy is such as to constitute reversible

error.

[2-4] Whether the railway company was under contractual obligation to allow the plaintiff to alight from the train where he did becomes immaterial, in view of the fact that he was lawfully on the defendant's train and alighted at the invitation of the conductor. The plaintiff, in view of all the circumstances, had a right to assume that the conductor was not exceeding his authority and was not inviting him to alight at an unsafe place.

"Where carriers transact their business through agents, either general or local, it is equally competent for such agents to bind them by such contracts as the public have a right to suppose they are authorized to make, from the manner in which they are employed, or are seemingly intrusted by their principals." Hutchison, Carriers, § 460.

The plaintiff asserts by cross-assignment of error that the court erred in refusing to give his second special requested charge to the effect that, if the jury found for the plaintiff, they, should include as an element of his damages his loss of time and lessened capacity to labor. On another trial of the case, under a similar state of facts, a charge submitting this issue should be given. H.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals in the above case is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by J. A. Greber against E. S. Clark, A. P. Hartfield, and others. From judgment for plaintiff, defendant Hartfield appealed to the Court of Civil Appeals, which affirmed (160 S. W. 603), and he brings error. Affirmed on recommendation of the Commis sion of Appeals.

Lane, Wolters & Storey, Stanley Thompson, and Wm. A. Vinson, all of Houston, for plaintiff in error.

Jones & Jones, of Houston, for defendants in error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeals found that the sagging condition of the wires resulted from the independent act of the house mover. The court found also that the evidence was insufficient to charge the defendants with actual notice of the sagging condition of the wires, and that the length of time intervening between the accident and the loosening of the wires by Bennifield were insufficient to raise the question of implied notice. 153 S. W. 636.

Under the state of the record before us, all of the issues raised by the pleadings are eliminated except the question of whether the operator who signaled the train to pass the station without stopping was guilty of negligence in not looking out of the depot window on the right of way to see whether it was clear before giving the proceed signal. In discussing this issue the Court of Civil Appeals said:

"When this particular train had reached the yards of appellant, about one-half mile from the station, going east, the engineer whistled for signals, and it was the duty of the station

Error to Court of Civil Appeals, Seventh agent, or some one under him, to manipulate a Supreme Judicial District.

Terry, Cavin & Mills, of Galveston, Adkins & Sewell and E. C. Gray, all of Higgins, and H. E. Hoover, of Canadian, for plaintiffs in

error.

Gustavus & Jackson, of Amarillo, and W. M. Whitmire, of Dallas, for defendant in er

ror.

lever inside the station, situated in a bay window projecting over the platform, the operation Action by J. E. Shinn against the Southern of which drops or raises a signal board, indicatKansas Railway Company and others. Judging whether to stop or proceed, as the occasion ment for plaintiff affirmed by Court of Civil demands, and in this instance the 'proceed' sigAppeals (153 S. W. 636), and defendants bring nal was given by the dropping of one of the error. Reversed, and judgment rendered for arms or board. and the engineer answered. with appropriate whistles, to let the trainmen know defendants. that a 'proceed' signal was given, and went on through on the main track; and, when the train was going through, the appellee was upon the top of a box car, as it was his duty in going by stations. The main track, on which this train was running, was immediately next to the station; and near the bay window, and inside of same, the lever was situated, giving the operator of the lever, at the time of its manipulation and before the train arrived at the station, a TAYLOR, J. The plaintiff, J. E. Shinn, sweep of vision east and west upon the main sued the defendant railway companies for track and up and down the right of way, so that the man operating the lever could see the bunch damages sustained from being raked off of a of wires about 300 feet away and east of the box car by an overhanging telephone wire station. In this record the station agent, and while passing through the town of Higgins the witness for defendant, testified as follows: on one of the defendants' freight trains. At "The lever that operates the board is on that the time of his injury, he was employed by desk that sits in the bay window. When an the defendants in the capacity of brakeman, incoming train whistles for the, board, [if] the and had gone upon the top of the car in the does his duty, he would look and see if there man that is sitting there operating the board discharge of his duties. is a clear right of way, I suppose, but I do not know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in the book is, when we drop the board, that is a clear track.' [The emphasis is ours.] While it may be the agent hesitates in his testimony, and exhibits same may be resolved against the appellant, and an apparent contradiction in his statements, the is sufficient to go to the jury on the question of the duty of the operator of the lever to look in each direction for 'a clear right of way.'"

The telephone wires were the property of the Canadian Long-Distance Telephone Company, strung across the right of way of the defendants subsequent to the time of the construction of the railway, and were in no wise under the care, control, or management of the defendants. A house mover by the name of Bennifield, while engaged in moving a barn about two hours before the approach of the train on which the plaintiff was injured, cut and loosened some of the telephone wires about 200 feet south of the defendants' right of way, thereby causing the sagging [1] If it was incumbent on the operator condition referred to. The Court of Civil of the lever to look in each direction for a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes