
    LANCASTER et al. v. BUSH et al. 
    
    (No. 1670.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 13, 1924.
    Rehearing Denied Dec. 31, 1924.)
    1. Master and servant <&wkey;289( 19)— Contributory negligence of brakeman, injured by wire above track, for jury.
    Evidence held sufficient to go to jury on question of freedom from contributory negligence of brakeman injured by contact with low telegraph wire across railroad track.
    2. Master and servant <&wkey;278(7) — Finding of railroad company’s negligence being proximate cause of injury to brakeman from telegraph wire across track, authorized.
    Finding that proximate cause of accident to brakeman from telegraph wire across switch track was railroad company’s negligence in constructing track and operating trains under the wire held authorized, there being.no evidence that telegraph company’s agents knew that the track was extended under the wire or that it was so low as to be dangerous.
    3. Trial &wkey;5365(2) — Submission of special issue harmless in view of one submitted.
    Submission of special issue of railroad company having permitted telegraph wire to be plaeed across track, whereas track was built under wire, held harmless in view of another issue, called for by the evidence, as to company’s receivers being negligent in permitting the wire to be as it was at time of accident to brakeman.
    4. Trial &wkey;>l29 — Replyto argument not ground for reversal, damages being supported by evidence.
    Statement of plaintiff’s counsel that plaintiff lay on his back for five days spitting blood, looking into the pearly gates, in reply to argument of defendant’s counsel that the evidence showed.the injuries not serious but only temporary, held not ground for reversal; there being evidence supporting the recovery and damages not being excessive.
    5. Judges &wkey;>25(2) — No error in exchange of judges during progress of trial.
    The Constitution and statutes providing for the exchange of judges whenever they deem it expedient, held, there was no error in the regular judge, after impaneling the jury and hearing the pleadings read, then calling in the judge of another district to preside because physically unable to proceed, and later, after the charge was read to the jury, resuming charge of the case; both judges passing on the motion for new trial and signing the judgment.
    
      ‘6. Appeal and error <&wkey;692(l) — Bill of exceptions should show existence and contents of excluded franchise.
    Bill of exceptions to refusal to permit introduction of franchise from city to telegraph ■company, to show that its wire was placed where it was without authority from the city, ■should show that there was such a franchise, it not being necessary that it have one, and describe its contents so that it can be determined therefrom whether it would establish such want of authority.
    7. Appeal and error <&wkey;999(l) — Findings under proper oharge and sufficient evidence, conclusive.
    Propositions, based on contention as to facts contrary to what the jury found under proper charges and sufficient facts, are not available on appeal.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by W. E. Bush against J. L. Lancaster and another, receivers of the Texas •& Pacific Railway Company, and others. Prom judgment for plaintiff against the receivers and in favor of defendant the Postal Telegraph Company on the receivers’ cross-action against it, the receivers appeal.
    Affirmed.
    Shropshire & Bankhead, of Weatherford, and S. N. Russell, of El Paso (Geo. Thompson and R. S. Shapard, both of Dallas, of counsel), for appellants.
    Turney, Burges, Culwell, Holliday & Pollard and Wallace & Cameron, all of El Paso, for. appellees.
    
      
      writ of error dismissed for'want of jurisdiction February 25, 1925.
    
   HARPER, C. J.

This, is a suit by W. E. Bush against the receivers of the Texas & Pacific Railway Company and the Postal Telegraph Cable Company, and Mackay Telegraph Cable Company to recover damages for personal injuries alleged to have been caused by the negligence of defendants, their agents and employees. The negligence alleged is to the effect that the Texas & Pacific Railway Company had its switch track along First street in the city of El Paso, which street runs east and west, and upon which it moved its cars in switching interstate commerce, and that the cable companies had a wire stretched across said street and track, used for a call 'or signal system; that it was placed so close to the top of an ordinary box car as that plaintiff, who was working as a switchman for the Texas & Pacific Railway Company, and its receiver, and when on top switching cars came in contact with it, in the nighttime, and was jerked from said position; fell to the ground and was thereby seriously and permanently injured. The receivers answered by general denial, negligence, contributory negligence, and assumed risk upon the part of plaintiff, admitted that they were switching cars in interstate commerce, etc., and set úp cross-action against the Postal Telegraph Cable Company in any sum which the plaintiff might recover against them. The ease was dismissed as to the Mackey Telegraph Cable Company, tried with a jury, submitted upon special issues, and resulted in verdict and judgment in favor of plaintiff for $10,000, against the receivers, and take nothing against the Postal Telegraph Company, and that the receivers take nothing by reason of its cross-action against the latter. The receivers appealed.

As to the points applicable to appellee, Bush, first, it is urged that the court erred in refusing instructed verdict because they say:

“(a) The uncontradicted evidence shows that Bush accidentally and negligently came in contact with the wire.”
“(b) That the wire which caused the accident belonged to and was controlled by the Postal Telegraph Company,” and
“(c) That there is no evidence that appellants were responsible for the wire being there, nor for any change in its position,” and
“(d) Appellants being engaged in interstate commerce, and the wire having been there many years and appellee having passed under it almost daily, and was fully aware of its existence and location, he assumed the risk.” And, “e, f, g and h,” to the same effect.

There is evidence to the effect that the wire was placed over First street prior to the extension of the railroad switch track, and that its presence was noted by the general agent of the company at the time the track was constructed over which appellee Bush was operating the cars, and that it was not thought to be so low as to be dangerous to any employee riding upon a car, and therefore no steps were taken to have its position changed. This evidence having come from the appellants’ employees as witnesses, it certainly does not appear that the appellee should be chargeable with knowledge of its dangerous position, and there is no evidence that he in fact knew that the wire was there, nor does the uncontradicted evidence show that Bush negligently came in contact with the wire; but the evidence is such as to require the court to submit the questions to the jury.

Whilst the undisputed evidence is that the telegraph company owned and had exclusive control of the wire, the evidence upon which the jury were authorized to find that the latter was not guilty of negligence, as it did, is that there is an absence of evidence that its agents had any knowledge that the switch track was extended under it, and none to charge it with knowledge that the wire was so low as to be dangerous, so the négligence which was the proximate cause of the accident and injury could well have been determined by tbe jury to be tbe act' ■of tbe railroad in constructing its track and •operating its trains under tbe wire in tbe position in wbieb it was, and there is no evidence that its position had materially changed after tbe extension of tbe track.

By several propositions it is contended that tbe court erred in submitting tbe question:

“Do you find * * * that at the time alleged * * * tbe railroad company permitted the wire to be placed across the track at the point complained of in such position and location as that the said- wire struck plaintiff, if he was, while riding on top of a box car, if he was, in performance of his duties?”

This question is subject to some of tbe reasons for appellant’s objections to it, and is not tbe exact question which should have been submitted, if any, but No. 8 is tbe question called for by tbe evidence:

“Were the receivers negligent in permitting, if they did, such wire to be as it was at the time complained of?”

So we are of tbe opinion that tbe cause should not be reversed by reason of tbe charge.

Sixteen complains of argument of counsel shown by tbe bill of exception as follows:

“Plaintiff was lying on his back for five days spitting blood. He was lying on his back looking into the pearly gates spitting blood for five 'days. This was made in reply to the argument of appellant’s counsel that the evidence showed the injuries not to be serious but only temporary.”

This was properly objected to, and the court refused to exclude tbe remarks; but under all tbe facts of this record it was not such remarks as should reverse tbe case. Tbe evidence fully supports a recovery in some amount, and we are not prepared to bold in favor of appellant’s contention that tbe amount recovered is excessive, so do not see that it possibly influenced tbe jury in their findings in any respect.

Propositions 17 to 20, inclusive, charge error in exchange of judges during tbe progress of tbe trial. Tbe bill of exceptions shows tbe facts to be: Judge Price, of tbe Forty-First district, called tbe case, passed upon tbe pleadings, impaneled tbe jury, and beard tbe pleadings read, and then announced that be was physically unable to attend tbe trial of tbe cause, and called tbe judge of tbe Sixty-Fifth district to take charge. None of tbe parties made any objections. Tbe judge of tbe Sixty-Fifth district presided until tbe evidence was introduced and all parties rested, prepared the charge, passed on tbe exceptions thereto and tbe special charges, and read tbe charge to tbe jury, whereupon tbe judge of tbe Forty-First district resumed charge of tbe ease. Whereupon objection was made to trying tbe case by. piecemeal, and for tbe further reason that neither of the judges beard all of tbe proceedings and therefore not competent to render judgment.

Tbe record discloses that both judges passed upon tbe motion for new trial and both signed tbe judgment. Under such facts, there was no error, for tbe Constitution and statutes of Texas provide for exchanges of judges whenever they deem it expedient. Johnson v. State, 61 Tex. Cr. R. 104, 134 S. W. 225; Marx v. Weir, 61 Tex. Civ. App. 520, 130 S. W. 621; York v. State, 91 Ark. 582, 121 S. W. 1070, 18 Ann. Gas. 344; Cobbl & Gregory v. Parker (Tex. Com. App.) 242 S. W. 1018.

There are other propositions charging error, but are approximately tbe same as those passed upon, so are overruled for tbe' reasons assigned .above, and since there is no reversible error in tbe case, as to appellee Bush, we next pass upon tbe questions presented as between appellants, receivers, and tbe telegraph company. Bush is not interested in whether there was error as between tbe two defendants. Austin Electric Ry. Co. v. Faust, 63 Tex. Civ. App. 91, 133 S. W. 449.

It is first urged that the court erred in refusing to permit tbe appellants to introduce a franchise from tbe city to tbe appellee Postal Telegraph Company, upon tbe theory that tbe wire was placed in its position without authority from tbe city. Tbe bill of exceptions does not disclose affirmatively that there was such a franchise in existence, nor'its contents in-any manner described* so that we can determine whether it would establish want of authority.

It was not necessary for this telegraph company to have a franchise. In case of St. Louis v. W. U. Tel. Co. (C. C.) 63 F. 68, it was said:

“Tbe defendant company'is in the city, with its poles and wires on the streets, under the paramount authority of an act of the federal Congress. It* comes as a governmental agency, in performing an important function in interstate commerce. It neither asks, nor can the city demand, any permit or license to be and remain on such public highway. It h'as the right to demand the use of the plaintiff’s streets and alleys, and the plaintiff must submit to such use, with or without an ordinance.”

By several propositions tbe point is made that' appellants were not negligent, and that appellee telegraph company’s negligence was tbe sole and proximate cause of tbe accident and injury and for that reason tbe court should have charged tbe jury to find for tbe receivers over against tbe telegraph company, in such amount as they found for plaintiff Bush. Tbe rule sought to be invoked is that tbe receivers were not negligent under the facts, but were liable for damages by construction of law, and that the telegraph company was the active perpetrator of the wrong, and for that reason the latter should be held to indemnify the former whose wrong was only secondary. City of San Antonio v. Smith et al., 94 Tex. 266, 59 S. W. 1109.

The trouble with these propositions is the facts do not support the contentions. The jury having found under proper charges that the telegraph company was not negligent and the evidence being sufficient to support the findings, the question is foreclosed.

Finding no error, the cause is affirmed.

On Rehearing.

Upon the suggestion of the appellee Bush, we desire to correct our statement of the facts shown by the bill of exception relative to the exchange of judges during the progress of the trial. We quote from the bill of exception verbatim, as follows:

“Said cause was regularly called for trial on the 21st day of February, 1924. P. R. Price, the judge of the Forty-First judicial district, presiding, settled the pleadings and impaneled the jury, and the pleadings were read to the jury. That during said time the said judge announced to counsel, that he was physically unable to continue the trial of the cause, and that he was going to request Ballard Coldwell, judge of the Sixty-Fifth judicial, district, to take charge of and to preside over said trial of said cause. That none of the parties made any objection to said action of said court. That thereupon the trial of 'said cause was proceeded with without objection by 1-Ion. Ballard Coldwell, judge of the Sixty-Fifth district court, presiding until all of the evidence introduced by the parties of the cause • had been heard and concluded and all parties had rested. Judge Coldwell prepared the charge to the jury and passed on all exceptions thereto, as well as passed on the 'special charges submitted, and read the charge and special charges to the jury; and before argument was commenced, on, to wit, the 26th day of February, 1924, Judge Price returned and at the request of Judge Coldwell presided over the argument until its conclusion. At the time Judge Price took charge of the argument no objection was made by counsel for any of the parties.
“The jury thereafter returned their verdict into court on, to wit, the 27th day of February, at about 12:30 p. m., which verdict was received by Judge Price ahd ordered filed.
“Before judgment was rendered on the verdict, to wit, the 28th day of February, 1924, counsel for the receivers in open court excepted to the action of the court in abandoning the trial of said cause, and surrendering the same to Hon. Ballard Coldwell during the hearing of the evidence and preparation and settling of the charges, and afterwards returning and taking charge bf the trial, and thus trying the cause by piecemeal by the two judges of different districts presiding at different times as in this bill above stated; said counsel further objecting to trying said cause in the manner aforesaid for the reason that neither of the judges heard all of the proceedings in said cause, and that neither was therefore competent or qualified to render any judgment on said verdict for those reasons.”

Judge Price qualified the bill with the explanation :

“That at the time of the announcement and. at the time Judge Coldwell took charge, I was physically unable to proceed with the trial of the case, and I deemed it expedient to have Judge Coldwell preside at the trial.” 
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