Worthington v. Wade

• Decision Date: 30 October 1891
• Citation: 17 S.W. 520
• Parties: WORTHINGTON v. WADE <I>et al.</I>
• Court: Texas Supreme Court

17 S.W. 520

WORTHINGTON v. WADE et al.

Supreme Court of Texas.

October 30, 1891.

Appeal from district court, Hunt county; E. W. TERHUNE, Judge.

Action by Maggie Worthington against Henry Wade and another to recover damages for the death of her husband, caused by defendants' negligence. Verdict and judgment for defendants. Plaintiff appeals. Affirmed.

Templeton & Evans, for appellant. Word & Charlton, for appellees.

GAINES, J.

This suit was brought by the appellant to recover of appellees damages for the death of her husband, which was alleged to have been caused by their negligence. Appellee Griffith was the owner of a tract of land in Hunt county, known as the "O. M. Roberts Survey," and sold to his co-defendant, Wade, upon a credit at the time of the sale. Wade executed to Griffith an agreement in which it was stipulated that, if Wade should fail to pay a certain promissory note given for the purchase money of the land at its maturity, he should pay $320 additional as liquidated damages, but with the proviso that, if he should "within 60 days put a good post and wire fence on said land," the obligation was to be void. In pursuance of the agreement Wade constructed the fence on the south boundary line of the tract. Near the south-east corner of the survey an old road entered the land on its south boundary line, and ran in a north-west direction across it. One witness testified that it had once been worked as a public road, but all the other testimony showed that, if this were true, many years had elapsed since it had been recognized by the commissioners' court as a public road. A public road had once run through the survey which adjoined it on the west, but had been changed so as to run entirely west of the latter survey. Before the change the old road through the Roberts survey was in common use by persons passing in vehicles and on horseback in order to reach the public road; but since the latter had been changed it had ceased to be used, except by persons traveling on horseback. A short time after the wire fence on the south line of the Roberts survey was constructed the husband of the appellant was found lying in the old road, near the point where the fence crossed it, seriously wounded. The circumstances tended to show that he had been thrown upon the fence by a horse, upon which he had been seen riding in the direction of the place of the accident on the day he was found injured. He stated to a witness "that he had been keeping the mare that he was riding to run a race, and that she was pampered and skittish." He also said that his mare became frightened at some crows, and "pitched into" the fence. He died from the effects of his wounds. The case was submitted to a jury, who returned a general verdict for the defendants.

The sixth assignment of error is not copied in the brief, and must be deemed to have been waived. The seventh is too general to require consideration. The others complain of the charge of the court. If the verdict of the jury was the only proper verdict that could have been returned under the evidence, any errors that may have been committed by the court in its instructions were harmless, and are not a ground for reversing the judgment. The right of recovery in this case must be maintained, if at all, upon one of two theories, — either that the road was public, and the fence an unlawful obstruction, or that the fence was dangerous, and its construction negligence,...