KEY, ASSOCIATE JUSTICE.-Among other things, the trial court instructed the jury as follows: "If the jury believe from the evidence that defendant's servants in charge of its locomotive knew, or by the exercise of ordinary care could have known, that plaintiff was in the car to which coupling was made, and of his perilous condition and surroundings therein; and if you believe that said servants negligently propelled defendant's locomotive against said car in which plaintiff was at work with greater force than was necessary, thereby causing said car door to fall upon and injure plaintiff; and if you further believe that plaintiff, in taking the position and remaining therein in said car, exercised such care as a person of ordinary care would have exercised under the same or similar circumstances, then you will find for the plaintiff.”

One objection made to this instruction is that in effect it assumed a controverted fact, and told the jury that under the conditions existing at the time the plaintiff was in a perilous position. This objection is well taken and requires a reversal of the judgment. To say the least the charge assumed that the plaintiff was in a perilous position at the time of the accident, and, as framed, it was equivalent to a comment upon the weight of testimony by the judge, which is prohibited by statute. On the other points we rule against appellant.

Reversed and remanded.

C. L. SANGER V. LEONARD MAGEE.

Decided May 14, 1902.

1.-Distraint-Judgment-Trial of Right of Property.

On the trial of right of property between a distraining landlord and a claimant who bought it from the tenant, the judgment recovered by the landlord against the tenant is conclusive as to the amount of the latter's indebtedness for rents and advances, unless attacked for fraud or collusion.

2.-Landlord's Lien-Waiver.

A landlord did not waive his lien on cotton raised on the rented premises by permitting the tenant to sell other cotton so raised to other purchasers, where the purchase, by the claimant, of the cotton against which the lien was sought to be enforced was not influenced by the fact that such other sales had been permitted.

Appeal from the County Court of McLennan. Tried below before Hon. G. B. Gerald.

Boynton & Boynton, for appellant.

Z. I. Harlan, for appellee.

KEY, ASSOCIATE JUSTICE.-Appellee had a tenant named E. G. Cotton, who sold to appellant six bales of cotton upon which appellee had a landlord's lien for rent. Appellee caused a distress warrant to be

issued and the cotton seized thereunder, and appellant filed a claimant's affidavit and bond for the trial of the right of property. The latter proceeding was regularly docketed and came on for trial, resulting in a judgment in favor of appellee Magee, from which judgment Sanger has appealed.

error.

We have considered all the points presented in the briefs, and find no The judgment rendered in the original suit of Magee v. Cotton, the tenant, not being attacked in this case on account of fraud or collusion, was conclusive as to the amount of Cotton's indebtedness to Magee for rents and advances. Livingston v. Wright, 68 Texas, 706; Ross v. Lewyn, 5 Texas Civ. App., 600; Lehman v. Stone, 4 Willson's Civ. Cas., 122; Cornwell v. Hartzell, 4 Willson's Civ. Cas., 73.

It was not shown that in purchasing the cotton here involved, appellant was influenced by the fact that appellee had permitted the tenant to make other sales of cotton in another market and to other purchasers. Hence we hold that appellee had not waived his lien and was not estopped from asserting it.

The judgment is affirmed.

Affirmed.

INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY V.

JOHN H. ING.

Decided May 7, 1902.

1.-Passenger Carrier-Ticket-Contract-Non Est Factum.

Where plaintiff, suing for damages by his ejection from defendant's train, pleaded a contract embodied in a special excursion ticket as entitling him to transportation, it was not necessary to prove its execution and issuance by defendant who had filed no plea of non est factum. 2.-Ticket-Contract.

Excursion ticket held to embody a contract by the railway company for transportation of the holder from Austin to San Antonio, and, while perhaps not conclusive of the terms of the agreement, to be prima facie evidence of his right to ride.

3.-Ticket-Assignability.

A railway passenger ticket is assignable, in the absence of legislative prohibition thereof, and in this State its assignment is not prohibited unless notice that it is a penal offense to sell it is printed thereon. Rev. Stats., chap. 12a. 4.-Damages-Putting Off Train.

Verdict for $502.90 held not excessive as damages, including compensation for humiliation, for wrongful ejection from a train of the holder of a valid ticket.

Appeal from Travis. Tried below before Hon. F. G. Morris.

S. R. Fisher (N. A. Stedman, of counsel), for appellant.

Hart & Townes, for appellee.

KEY, ASSOCIATE JUSTICE.-Appellee brought this suit against appellant for the breach of a contract and for damages resulting from his unlawful and forcible expulsion from a railway train on appellant's road. He pleaded a contract embodied in a special excursion ticket, reading thus:

"International & Gt. Northern Railroad.

"Special Excursion Ticket - Going Coupon.
"Good only on day of issue.

"One First Class Passage.
"From Austin (C) Tex.,

"To San Antonio, Tex.

"Passengers will not be allowed to stop
off on this ticket.

Stamped on back in a circle: "I. & G. N. R. R. Co., City Ticket Office, Austin, Texas, Jul. 14, 1901."

He alleged that the ticket and contract referred to were executed and issued by the defendant railroad company. The proof shows that he bought the ticket from a third person and fails to show that such person was an agent of the railroad company. However, as there was no plea of non est factum, it was not necessary for the plaintiff to prove that the defendant executed and issued the ticket. Railway v. Tisdale, 74 Texas, 8; Railway v. Campbell, 1 Texas Civ. App., 509.

We overrule the contention that the ticket referred to did not embody a contract entitling the plaintiff to transportation on appellant's railroad from Austin to San Antonio.

While some authorities go to that extent, it is not necessary and we do not hold that the ticket was conclusive of the terms of the contract between the railroad company and the person to whom the company sold the ticket. It was prima facie evidence of a right to transportation from Austin to San Antonio, and the company did not offer to prove any further agreement between it and the purchaser modifying or limiting the right thus indicated. 4 Elliot on Railroads, secs. 1596, 1601; Howard v. Railway, 61 Miss., 194; Maroney v. Railway, 106 Mass., 160; Railway v. Chisholm, 79 Ill., 584; Knight v. Railway, 56 Me., 234; Nichols v. Railway, 23 Ore., 123; Garston v. Railway, 47 N. W. Rep., 49; Hoffman v. Railway, 47 N. W. Rep., 312; Railway v. Looney, 85 Texas, 158. As to the point in reference to the assignability of the ticket, we hold that in the absence of constitutional or statutory prohibition, or a stipulation to the contrary on the face thereof, a railroad passenger ticket is transferable and entitles the holder thereof to the rights of the original purchaser. 4 Elliot on Railroads, sec. 1599, and the cases there cited. See also some of the cases already cited. Chapter 12a of the Revised Statutes of this State attempts to regulate the sale of railroad tickets,

and, under certain circumstances, prohibits anyone, except a duly appointed agent, from making such sales. However, the statute referred to expressly declares "that the provisions of this chapter shall not apply to any person holding a ticket upon which is not plainly printed that it is a penal offense for him or her to sell, barter, or transfer said ticket for a consideration." The ticket in this case contained no such printed matter; and therefore the statute has no application, and the ticket was assignable.

On the other points presented in the briefs we rule against the appellant. Taking the plaintiff's evidence as to the manner of his expulsion from the train and the rule which prevails in this State allowing compensation for feelings of humiliation, we are not prepared to hold that the verdict for $502.90 is excessive.

The judgment is affirmed.

Affirmed.

FORT WORTH & RIO GRANDE RAILWAY COMPANY V.
J. H. REESE ET AL.

Decided May 28, 1902.

Connecting Lines-Contract for Handling Freight.

A contract by one railway company to handle the cars and freight of another at the point of connection, which provided that such handling should be at the risk of the latter company till ready for delivery to the former, such readiness to be determined by the execution of a waybill by the joint agent for its further transit, did not render the latter company liable over to the former for damages recovered for delay (made necessary by the bad condition of the car in which it arrived) in reloading stock after it was delivered to the former company and unloaded in its pens.

Appeal from the County Court of Brown. Tried below before Hon. R. P. Connor.

West, Smith & Chapman, for appellant.

G. H. Harrison, for appellees Reese and Vincent.

KEY, ASSOCIATE JUSTICE.-This case was submitted in this court on the following conclusions of fact:

"1. The plaintiffs made a contract with the Fort Worth & Rio Grande Railway Company in writing, covering the shipment of the carload of horses in this suit from Brownwood to Fort Worth, Texas, destined to Longview, Texas; under the terms of the written contract the Fort Worth & Rio Grande Road agreed to haul the car of horses from Brownwood to Fort Worth, and deliver them to connecting line leading to destination, and specially limited its liability for any damage or injury to its own line.

"2. That the Fort Worth & Rio Grande Railway did haul said car of horses from Brownwood to Fort Worth, and delivered them to the Texas & Pacific Railroad, which line of road connects with the Fort Worth & Rio Grande Railway, and runs from Fort Worth to Longview, Texas.

"3. That after delivery of said horses to the Texas & Pacific Railway by the Fort Worth & Rio Grande Railway, one of the plaintiffs, J. H. Reese, being in charge thereof, called upon the local freight agent of the Texas & Pacific Railway in Fort Worth, and requested that the Texas & Pacific Railway forward the car of horses from Fort Worth to destination, Longview, and the agent of the Texas & Pacific agreed to do so.

"4. That the Fort Worth & Rio Grande Railway Company made delivery to the employes of the Texas & Pacific Company of the carload of horses on its arrival in Fort Worth.

"5. That during the transportation of the shipment on the line of the Fort Worth & Rio Grande Railway, by the broken and defective condition of the car in which the horses were carried, five head were injured substantially as alleged in plaintiff's first amended original petition, while on the line of the Fort Worth & Rio Grande Railway, and by reason of the condition in which said car arrived in Fort Worth, it was necessary for the horses to be unloaded out of it and reloaded in another car.

"52. That the plaintiff Reese, in charge of the stock, after its arrival in Fort Worth, requested the local agent of the Texas & Pacific Railway to have the horses unloaded out of the defective car and reloaded in a good car and forwarded to Longview, Texas.

"6. That the Texas & Pacific Railway Company took charge of the car of horses in Fort Worth, and switched it to the Texas & Pacific stockyards, and unloaded the horses therefrom.

". That after the local agent, or some employe of the Texas & Pacific Road had unloaded said horses, said Texas & Pacific Railway refused to reload and forward the horses immediately, unless plaintiff in charge thereof would leave out two or more head of the horses, claiming that the car was overloaded, which demand by the employes of the Texas & Pacific Railway the plaintiff in charge thereof, J. H. Reese, declined to comply with, and demanded that all the stock be reloaded in the same size car in which they arrived, and forwarded to destination, Longview. That the employes of the Texas & Pacific Company refused to ship said horses for a period of twenty-four hours after they were unloaded in its pens at Fort Worth, and until ordered by the officers of the Texas & Pacific General Office in Dallas to forward said stock in one car.

"8. That the car in which said horses arrived at Fort Worth and the car in which they left Fort Worth were sufficiently large to properly. accommodate the stock, and that the stock were not overloaded in either

car.

"9. That after said car of horses arrived in Fort Worth and was de

Vol. 29 Civil-26.