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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 con14 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 “food." 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

[3] The court properly refused defendants' summer so that it would leave the tracks instructions. Defendants' instructions B and suspended above the roadbed. To remedy

C do not correctly state the law; they igthis the company had caused hundreds of nore the fact that, if defendants' negligence loads of dirt, rock, and various other debris concurred with the act of God and their neg. 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 the damages, they would still be liable. 1 earth upon which this added weight was Shearman & Redfield on the Law of Negliplaced, the embankment continued to slip gence (6th Ed.) par. 39, p. 76; Benton v. St. and slide toward the creek until finally a Louis, 248 Mo. 98, 154 S. W. 473; McDer. heavy rain came about the first of July caus- mott v. Ry., 87 Mo. loc. cit. 302; Schmidt ing a further slide of about 200 feet of earth v. St. Louis Transit Co., 140 Mo. App. 182, from the embankment into the creek, so that 120 S. W. 96; Harrison v. K. C. El. Light Co., the latter was completely obstructed resulting 195 Mo. loc. cit. 623, 93 S. W. 951, 7 L. R. in a very large volume of water being divert- A. (N. S.) 293; Daneschocky v. Sieble, 195 ed upon plaintiff's land destroying his crops Mo. App. 470, 193 S. W. 966; Wright v. thereon and cutting away and destroyin be

Kansas City Terminal Co., 195 Mo. App. 480, tween one and two acres of land belonging to 193 S. W. 963. bim.

[4] Instructions F and G in part tell the [1] Among the defenses pleaded was "un- jury that, even if the embankment had slipprecedented and extraordinary rainfall” or ped and was “seepy," defendants were not act of God. Plaintiff's instruction No. 1 cov

thereafter required to anticipate that it ering the entire case and directing a verdict would slide into the creek. These instrucentirely ignored the question of unprecedent- tions sought to invade the province of the ed rainfall. This was error.

jury, as it was for the jury to say if defend

Cooney v. Pryor, 203 8. W. 630, Riffe v. Wabash Rail- ants should have so anticipated under the way, 207 S. W. 78, and Paulson v. Wabash circumstances. Instruction E is a demurrer Railway, 207 S. W. 81, both decided at this to the evidence. Plaintiff made out a case, sitting but not yet officially reported.

and the court had jurisdiction of the cause. [2] But it is contended by plaintiff that This jurisdictional point, urged by defendthere was no evidence of an extraordinary ants, is the same one made by them in the rainfall. We are unable to agree to this cases of Riffe v. Wabash Railway, supra, It is true that some of plaintiff's witnesses and Paulson v. Wabash Railway, supra; and, testified that the rain occurring at the time as those cases thoroughly discuss and settle of the flooding of plaintiff's lands was no the point against defendants, it is unneces. greater than had occurred in prior years, sary to again go into the matter. but there was also evidence that this rain The judgment is reversed, and the cause was a “heavy rain," "unusual rain,” and remanded. All concur.

station beyond, could rightfully assume conduc. CLAY V. MARMAR. (No. 17–2608.) tor 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 Dec. 21, 1918.)


ING - CONDUCTOR'S INVITATION ASSUMPOn appeal from the judgment in an action

TION AS TO SAFETY. to recover property of the value of $250 or its A passenger invited to alight when train value, the judgment of the Court of Civil Ap- at night was required to stop a short distance peals is final, and the Supreme Court cannot from station could rightfully assume conductor review the same on error.

was not inviting him to alight at an unsafe

place. Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Error to Court of Civil Appeals of Fifth

Supreme Judicial District. Action by K. Marmar against Mrs. T. J. Clay. From a judgment for plaintiff, de- Action by John R. Woodall against the St. fendant appealed, and, judgment being affirm-Louis Southwestern Railway Company of ed by the Court of Civil Appeals (156 S. W. Texas. Judgment for plaintiff was affirmed 1125), defendant brings error. Writ dismiss by the Court of Civil Appeals (159 S. W. ed.

1012), and defendant brings error, plaintiff

making cross-assignments. Reversed and re Price & Beaird, of Tyler, for plaintiff in

manded. error.

Lasseter & McElwaine, of Tyler, and U. A. E. B. Perkins, of Dallas, and Daniel Upthe. Gentry, of Hope, for defendant in error. grove, of St. Louis, Mo., for plaintiff in er.



SADLER, J. This was a suit in county

Allen & Allen, of Dallas, for defendant in court by Marmar to recover property of the

error. value of $250, or its value. The judgment of the Court of Civil Ap

TAYLOR, J. [1] The main question prepeals is final. 156 S. W. 1125. The Supreme sented for determination is: Did the Court Court is without jurisdiction. Cole v. State, of Civil Appeals err in holding that the 106 Tex. 472, 170 S. W. 1036.

following paragraph of the court's charge The writ should be dismissed.

correctly defines the care required by the

defendant in error in the transportation of PHILLIPS, C. J. The recommendation of its passengers: the Commission is adopted. The case is dis- "Fourth. On the claim of plaintiff for dammissed for want of jurisdiction.

ages 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 passen

gers, both while they are being carried on its ST. LOUIS SOUTHWESTERN RY. CO. OF failure to exercise such care is negligence.

trains and while alighting therefrom, and a TEXAS v. WOODALL. (No. 16–2607.)

They are not, however, to be regarded as in(Commission of Appeals of Texas, Section A. surers of the safety of their passengers." Dec, 21, 1918.)

The facts to which the foregoing charge is 1. CARRIERS 280(1)-DUTY OF CARRIER- applied are, briefly, that the plaintiff purDEGREE OF CARE,

chased from the Houston & Texas Central Instruction that carrier is required to ex- Railroad Company at Dallas a through tick. ercise the “highest degree of care possible" et over that line and plaintiff in error's line for safety of passengers demands too much. from Dallas to Brownsboro, via Corsicana. 2. CARRIERS C303(11)-INJURY TO PASSEN

Plaintiff went to Corsicana over the H. & ALIGHTING-LIABILITY-CONDUCTOR'S

T. C. line, and then took passage for BrownsINVITATION.

boro on the defendant in error's limited train. Whether carrier was under contractual ob Soon after boarding said train, he was adligation to allow passenger to alight where he vised by the conductor that it did not stop did is immaterial, as regards liability for in- at Brownsboro, and thereupon paid his fare jury; he being rightfully on the train, and to Chandler, a place beyond Brownsboro, alighting at conductor's invitation.

where the train was scheduled to stop. 3. CARRIERS 333(3)-PASSENGER ALIGHT

When the train reached Brownsboro, a - CONDUCTOR'S INVITATION - ASSUMP-freight train was standing partly on the TION AS TO AUTHORITY.

main track and partly on a siding, too short A passenger who, because train did not to hold the entire train, which made it regularly stop at his station, had ticket for necessary for the passenger train on which



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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 We are of opinion that the judgments of during the night at Brownsboro, the plain the trial court and the Court of Civil Aptiff, having been told by the conductor that peals should be reversed, and the cause rethe train was at Brownsboro and that he manded. would let him off, alighted from the train. It being further to the ground than plain

PHILLIPS, C. J. The judgment recomtiff thought, he lost his balance after strik- mended by the Commission of Appeals in ing the ground and fell in a pile of railroad the above case is adopted and will be eniron and cross-ties, injuring himself. 159 s. tered as the judgment of the Supreme Court. W. 1012.

We approve the holding of the Commission on The Supreme Court held in the case of I. & the question discussed. 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

HARTFIELD V. GREBER et al. of its passengers, and reannounced as the

(No. 22-2641.) correct rule of liability the following:

(Commission of Appeals of Texas, Section A. "Railroad companies, however, are not in

Dec. 21, 1918.) surers of the safety of their passengers further than could be required by the exercise of 1. MORTGAGES 427(1) FORECLOSURE such a high degree of foresight as to possible DEBTOR AS PARTY. dangers, and such a high degree of prudence in In suit to foreclose mortgage at common guarding against them, as would be used by law, it is unnecessary to make debtor a party very cautious, prudent, and competent persons where he has parted with his interest in propunder similar circumstances." Railway v. Hal. erty, unless personal judgment against him is loren, 53 Tex. 53, 37 Am. Rep. 744.

sought; plaintiff may proceed against purchas

er of properly alone, establish his debt, and The charge complained of in this case is subject property to payment. subject to the same objection as the one dis- 2. MECHANICS' LIENS 263(1) SUIT TO approved in the Welch Case, and has a broad- FORECLOSE-ORIGINAL CONTRACTOR AS NECer and more unlimited meaning with respect ESSARY PARTY. to the degree of care required than is con- Original contractor, payee of notes and sistent with the foregoing rule. The dis beneficiary of mechanic's and builder's lien, crepancy is such as to constitute reversible who subsequently purchased property, as part error.

consideration assuming payment of notes, was (2-4] Whether the railway company was

not necessary party to proceedings to foreclose under contractual obligation to allow the rendered foreclosure void.

lien in sense that failure to make him party plaintiff to alight from the train where he

SUIT TO did becomes immaterial, in view of the fact 3. MECHANICS' LIENS Cw 261(1) that he was lawfully on the defendant's train


CONTRACTOR PARTY-WAIVER. and alighted at the invitation of the conductor. The plaintiff, in view of all the cir- lien, in suit by indorsee of notes upon them

Purchaser of property subject to mechanics' cumstances, had a right to assume that the and to enforce lien, had right on timely appliconductor was not exceeding his authority cation to make party original contractor, who and was not inviting him to alight at an un- subsequently purchased property from original safe place.

owner, who gave notes and lien, but waived "Where carriers transact

right by proceeding to trial without making ap

their business through agents, either general or local, it is

plication. equally competent for such agents to bind them by such contracts as the public have a right

Error to Court of Civil Appeals of Eighth to suppose they are authorized to make, from Supreme Judicial District. the manner in which they are employed, or are Action by J. A. Greber against E. S. Clark, seemingly intrusted by their principals.” | A. P. Hartfield, and others. From judgment Hutchison, Carriers, $ 460.

for plaintiff, defendant Hartfield appeal

ed to the Court of Civil Appeals, which afThe plaintiff asserts by cross-assignment firmed (160 S. W. 603), and he brings error. of error that the court erred in refusing to Affirmed on recommendation of the Commis give his second special requested charge to

sion of Appeals. the effect that, if the jury found for the plaintiff, they should include as an element Lane, Wolters & Storey, Stanley Thompof his damages his loss of time and lessened son, and Wm. A. Vinson, all of Houston, for capacity to labor. On another trial of the plaintiff in error. case, under a similar state of facts, a charge Jones & Jones, of Houston, for defend. submitting this issue should be given. H. ants in error.

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STRONG, J. Defendant in error, Greber, , announced in Railway v. Rucker, 59 Tex. 587, sued E. S. Clark and wife on two notes exe therefore has no application. cuted by them and to foreclose a mechanic's [1] It is a well-settled rule of the common lien on certain lots in Houston Heights, law that, in a suit to foreclose a mortgage, Harris county. Plaintiff in error was made it is not necessary to make the debtor a party a party defendant as a subsequent purchaser to the suit, where he has parted with his inof the property.

terest in property, unless a personal judg. The record discloses that Clark and wife ment is sought against him. The plaintiff in contracted with F. E. Pye to build a house such suit may proceed against the purchaser on the lots, and as a part of the considera- of the property alone, establish his debt, tion executed the two notes sued on, and at and subject the property to the payment the same time executed a mechanic's and thereof. Jones on Mortgages (5th Ed.) vol. 2. builder's lien on the lots and improvements 8 1404; 9 Enc. Plead. & Prac. 332; Storey, Eq. to be made, to secure the payment of the Plead. $ 197; Buchannan v. Monroe, 22 Tex. notes. Pye sold and indorsed the notes be- 537; Jones v. Smith, 55 Tex. 383; Puckett v. fore maturity to Greber. Thereafter Pye pur- Reed, 3 Tex. Civ. App. 350, 22 S. W. 515. chased the property from Clark and wife, This rule has been applied in this state in and as a part of the consideration assumed tax suits. Slaughter v. City of Dallas (Civ. the payments of the notes. Pye later sold App.) 103 S. W. 218; League v. State (Civ. the property to plaintiff in error, Hartfield. App.) 56 S. W. 262. In other jurisdictions Hartfield, however, did not assume payment the rule is held to apply in a proceeding to of the notes.

enforce a mechanic's lien. Rose v. Persse, Clark and wife, in their answer, alleged 29 Conn. 256; McCormick v. Lawton, 3 Neb. that, when they sold the property to Pye, 449; Kellenberger v. Boyer, 37 Ind. 188; Greber released them from further liability Harrington v. Miller, 4 Wash. 796, 808, 31 Pac. on the notes. Hartfield answered by general

325. denial and specially that the improvements

[2, 3] In our opinion, Pye was not a neces. were not made in substantial compliance sary party to the foreclosure proceedings, in with the contract, and that Greber had full the sense that the failure to make him a knowledge of this fact when he purchased party renders the judgment of foreclosure the notes. Pye was not made a party to the void. Plaintiff had the right to sue Hartfield suit.

as a subsequent purchaser of the property In answer to special issues submitted, the upon which he held a lien, establish his debt jury found that Greber had released Clark and enforce his lien against the property, and wife from liability on the notes, and without making Pye, his debtor, a party to further found that Pye substantially complied the proceedings. Jones on Liens (30 Ed.) vol. with his contract in the construction of the 2, § 1578; Phillips on Mechanics' Liens, $ 396. building so as to fix a lien on the homestead. In such proceeding Hartfield could urge any The trial court rendered judgment in favor defense to defeat the lien that Pye could have of Greber for the amount due on the notes urged had he been a party to the suit. Plainagainst Clark and wife, directing that no cation, to make Pye a party to the suit, but

tiff in error had the right, upon timely appliexecution issue against them, foreclosed the lien against all defendants, and ordered without making such application. Railway

he waived this right by proceeding to trial the sale of the property in satisfaction of the v. Peek, 102 S. W. 776. The effect of the judgment. The judgment of the trial court court's judgment was to establish plaintiff's was affirmed by the Court of Civil Appeals. debt and subject the property to the lien. In 160 S. W. 603.

this we think there was no error. It is contended by plaintiff in error that

We think the other assignments were propthe court was without authority to render erly disposed of by the Court of Civil Apjudgment foreclosing the lien, because there

peals. was no party to the suit against whom judg

We are of opinion that the judgments of ment for the debt could be decreed; in other the Court of Civil Appeals and trial court words, that Pye was a necessary party to should be aflirmed. the suit.

It is not contended, nor does the record dis- PHILLIPS, C. J. The judgment by the close, that Pye was a necessary party by Commission of Appeals in the above case is reason of being the original contractor in the adopted and will be entered as the judgcontract for the improvements. The rule ment of the Supreme Court.

Appeals found that the sagging condition of SOUTHERN KANSAS RY. CO. et al. . the wires resulted from the independent act SHINN. (No. 2554.)

of the house mover. The court found also

that the evidence was insufficient to charge (Commission of Appeals of Texas, Section A. the defendants with actual notice of the sagDec. 21, 1918.)

ging condition of the wires, and that the 1. MASTER AND SERVANT 255(30)-RAIL- length of time intervening between the acciBOADS-OPERATION OF SIGNAL BOARD-DUTY dent and the loosening of the wires by BenniTO LOOK OUT.

field were insufficient to raise the question Railroad employê operating signal board by of implied notice. 153 S. W. 636. means of lever in projecting bay window of sta- Under the state of the record before us, tion was not as a matter of law required to look all of the issues raised by the pleadings are to see if track was clear before giving signal eliminated except the question of whether that operator had no orders for engineer.

the operator who signaled the train to pass 2. MASTER AND SERVANT Om 286(30)—INJURY | the station without stopping was guilty of TO BRAKEMAN DUTY OF SIGNAL BOARD negligence in not looking out of the depot OPERATOR-JURY QUESTION.

window on the right of way to see whether In brakeman's acti for injuries from sag- it was clear before giving the proceed sig. ging telephone wires while on top of box car, nal. evidence held insufficient to justify submission Civil Appeals said:

In discussing this issue the Court of to jury of question whether operator of signal board who had given engineer signal to proceed “When this particular train had reached the had duty of looking to see if track was clear yards of appellant, about one-half mile from before giving signal.

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.

lever inside the station, situated in a bay win

dow 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. Judg- ing 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 Terry, Cavin & Mills, of Galveston, Adkins through on the main track; and, when the & Sewell and E. C. Gray, all of Higgins, and train was going through, the appellée was upon H. E. Hoover, of Canadian, for plaintiff's in 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 Gustavus & Jackson, of Amarillo, and W. station; and near the bay window, and inside of M, Whitmire, of Dallas, for defendant in er- same, the lever was situated, giving the operaror.

tor 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 the man operating the lever could see the bunch

track and up and down the right of way, so that 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 man that is sitting there operating the board


does his duty, he would look and see if there discharge of his duties.

is a clear right of way, I suppose, but I do not The telephone wires were the property of know as it is incumbent to do that. The engithe Canadian Long-Distance Telephone Com neer does not whistle to know if there is a clear pany, strung across the right of way of the track; he whistles to know if we have orders defendants subsequent to the time of the for him. The literal meaning in the book is, construction of the railway, and were in no when we drop the board, that is a clear track.' wise under the care, control, or management [The emphasis is ours.) While it may be the of the defendants. A house mover by the agent hesitates in his testimony, and exhibits name of Bennifield, while engaged in moving same may be resolved against the appellant, and

an apparent contradiction in his statements, the a barn about two hours before the approach is sufficient to go to the jury on the question of of the train on which the plaintiff was in the duty of the operator of the lever look in jured, cut and loosened some of the telephone each direction for 'a clear right of way.'” vires 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

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