[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. § 171.*]

2. LIMITATION OF ACTIONS (§ 127*)-COMPUTATION OF PERIOD OF LIMITATION-AMENDMENT OF PLEADINGS.

Where, in an action against a bank receiving drafts for collection, which in violation of its instructions detached the attached bills of lading and attached them to others drawn by the consignee, as a result of which the consignee's creditors attached and sold the shipment, the original petition filed in time to stop the running of limitations alleged the facts in respect to detaching the bills of lading and the loss occasioned thereby, and was sufficient as against a general demurrer to set up default or conversion, the cause of action was not barred by limitations, though an amended petition making the allegations more specific was filed after the expiration of the period of limitation. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]

3. LIMITATION OF ACTIONS (§ 56*)-COMPUTATION OF PERIOD OF LIMITATION COMMENCEMENT OF PERIOD.

Limitations would not run against the right of action of a bank which received drafts for colection against another bank to which it forwarded them and which detached the attached bills of lading and attached them to others drawn by the consignee until it paid the judgment recovered against it by the drawer. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. 8 56.*]

4. BANKS AND BANKING (§ 175*) COLLECTIONS-MEASURE OF DAMAGES FOR WRONGFUL ACTS.

The measure of damages for the act of a bank to which drafts were sent for collection in detaching the attached bills of lading and attaching them to other drafts drawn by the consignee enabling the consignee's creditors to attach and sell the shipment was prima facie the face of the drafts which represented to the bank's knowledge the contract amount payable by the consignee.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 634-652; Dec. Dig. § 175.*]

"I find that on July 29, 1905, the plaintiff shipped a car of oats containing 273 sacks, from Richland, Tex., to Breaux Bridge, La., shipper's order, notify Southwestern Grain Company of McKinney, Tex., and that on July 31st he shipped a car of oats containing 322 sacks from Richland, Tex., to Breaux Bridge, La., shipper's order, notify Southwestern Grain Company, McKinney, Tex., and that each of said sacks contained 4 to 42 bushels of oats, and that said oats were worth 30 cents per bushel at Breaux Bridge, La., and at Richland, Tex.; that the Southwestern Grain Company had bought said oats from plaintiff and had agreed to pay 30 cents per bushel therefor.

"I further find that on the 31st day of July the plaintiff gave to the defendant First National Bank of Wortham two drafts, one for $296.55, the purchase price of the first car of oats, and one for $350.05, the purchase price of the last car of oats, said draft having the bills of lading attached, and that said bills of that plaintiff instructed said bank to collect the lading were indorsed in blank by plaintiff, and same and to deliver said bills of lading only on payment of said drafts. And I find that defendant First National Bank of Wortham sent with said drafts and bills of lading written instructions to this effect, to the Collin County National Bank, which bank received said drafts upon July 31, 1905.

"I further find that said cars of oats went to Breaux Bridge, La., and that the Collin County National Bank of McKinney, Tex., permitted the bills of lading to be detached from plaintiff's draft without paying the same, and to be attached to the Southwestern Grain Company's drafts on A. Steen, of Breaux Bridge, La., and that the Collin County National Bank forwarded such drafts of Southwestern Grain Company so attached to a bank at Breaux Bridge, La., for collection. I find that the

Action by C. J. Turner against the Collin County National Bank and another. From a judgment against it, the defendant named appeals. Affirmed.

See, also, 111 S. W. 670.

The suit is by C. J. Turner against the First National Bank of Wortham and the Collin County National Bank for damages occasioned by surrendering, contrary to instructions, a bill of lading accompanying a draft received and forwarded for collection. The petition fully averred the facts. The First National Bank of Wortham pleaded general denial, and by cross-action sought to recover against the Collin County National Bank as

A. Steen were for a greater amount than the drafts of plaintiff.

"I further find that after said bills of lading with the drafts of the Southwestern Grain Company attached thereto had been received by the bank at Breaux Bridge, La., the said A. Steen, to whom the Southwestern Grain Company had contracted to sell said two cars of oats, went to

the bank and examined said bills of lading and drafts attached thereto, and thereafter caused the said two cars of oats to be attached as the property of the said Southwestern Grain Company on account of some indebtedness which he, the said A. Steen, claimed against the Southwestern Grain Company, and that the said two cars of oats were sold at sheriff's sale to satisfy said claim of A. Steen against the said grain

G. R. Gough and W. R. Abernathy, both of McKinney, for appellant. R. C. Merritt, of McKinney, and W. J. Bryant, of `Wortham, for appellee.

LEVY, J. (after stating the facts as above). [1] By the first assignment of error the contention is made that the petition of the plaintiff does not support a judgment in his favor against the Collin County National Bank. The amended petition of the plaintiff, filed July 18, 1913, and on which the case was tried, alleges, as material to be stated, that the Collin County National Bank received and accepted drafts with bills of lading attached, and indorsed in blank by the plaintiff, from the First National Bank of Wortham, together with the plaintiff's written instructions that the bills of lading should be delivered to the Southwestern Grain Company only upon the immediate payment of the drafts by the grain company, and that the Collin County National Bank, in violation of the instructions, and without authority, permitted the bills of lading to be detached from the drafts and attached to different drafts drawn by the grain company on A. Steen of Breaux Bridge, La., and as so attached forwarded the bills of lading to a bank at Breaux Bridge, thereby placing the apparent legal title to the cars of oats in the grain company and enabling and causing creditors of the grain company at Breaux Bridge to attach and sell the oats as the property of the grain company. The facts found by the court are in accordance with the allegations. If the Collin County National Bank by its independent and unauthorized acts, as alleged and proven, caused the loss or conversion of the oats, it would be liable to the plaintiff as for conversion for the damages occasioned through the unauthorized acts done by it. The assignment is therefore overruled.

[2, 3] The second and third assignments presented the contention that the cause of action in favor of the plaintiff was barred by limitation of two years. And by the fourth and fifth assignments the same contention is made by appellant in respect to the cross

occurred, under the facts, either on July 31, 1905, or on August 10, 1905, and that the plaintiff did not set up conversion until the amended petition of July 18, 1913, and that the First National Bank of Wortham did not file its cross-action until September 16, 1907. The original petition of the plaintiff was filed on the 8th day of August, 1906, and averred the facts concerning the acts and conduct of the Collin County National Bank in respect to detaching the bills of lading and the loss occasioned thereby. The court sustained certain special exceptions directed to the allefiled making more specific the allegations of gations, and an amended petition was then the original petition. The original petition was admittedly filed within time to stop the running of limitation; and as the averments therein were sufficient, as against a general demurrer, to set up default or conversion, and asked for damages therefor, the plaintiff's cause of action could not be said to be barred by the statute of two years' limitation. And if it could be said that the First National Bank of Wortham was seeking on its crossaction in its own right and name to recover independently for the loss of the oats against the Collin County National Bank, then it would not be doubted that appellant's contention that the cross-action was barred should be sustained. But the First National Bank of Wortham is not seeking a recovery on any independent cause of action, but by the cross-action is seeking recovery only against the Collin County National Bank as its agent, for whatever sum it may have to pay on the plaintiff's cause of action against it as principal. And in this view of the cross-action of the First National Bank of Wortham, limitation would not run in favor of the Collin County National Bank until the First National Bank of Wortham had paid the judgment against it. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518.

The sixth and seventh assignments are overruled as constituting no reversible error. See Houston v. Blythe, 60 Tex. 506.

[4] The measure of plaintiff's damage prima facie was the face of the drafts, which represented to appellant's knowledge the contract amount payable by the grain company for the oats. And there is no pretense in the evidence that the amount payable by the drafts was incorrect. As a fact the court entered judgment for the market value as found by him, which was less than the face of the drafts. The eighth assignment is overruled, as showing no injury and as not warranting reversal.

The ninth and tenth assignments are overruled.

The judgment is affirmed.

being caught under the engine in case of the

(No. 1308.)

(Court of Civil Appeals of Texas. Texarkana. April 30, 1914. Rehearing Denied May 21, 1914.)

ACTIONS

1. MASTER AND SERVANT (§ 286*) FOR INJURIES-QUESTIONS FOR JURY. In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, evidence held to make a question for the jury as to whether the freight train employés were guilty of negligence proximately causing the injury in failing to post and put out a flag at a sufficient distance to give a sufficient warning to the passenger train.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

ACTIONS

2. MASTER AND SERVANT (§ 293*) FOR INJURIES-INSTRUCTIONS. In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, where the only acts of negligence alleged were the failure of the freight train's crew to side-track the train 10 minutes before the passenger train was due or, failing in that, to send back a flagman a sufficient distance to stop the passenger train before it could run into the caboose, which had broken loose from the freight train, and the only evidence offered by plaintiff as to negligence referred to these acts, an instruction that if the employés in charge of the freight train were guilty of "negligence," as that term had been defined, in causing the two trains to run together, and if such negligence was the proximate cause of plaintiff's injury, the jury should find for plaintiff, was not so erroneous as to require a reversal, though it did not expressly state the particular acts that might be considered by the jury as negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*] 3. TRIAL ( CURE.

296*)-INSTRUCTIONS-ERRORS

An instruction, in an action for injuries to the fireman of a passenger train, that if the employés in charge of a freight train were negligent in causing the two trains to run together, the jury should find for plaintiff, if erroneous as failing to state the acts of the freight train's crew that might be considered as negligence, was not ground for reversal, where the special charges for both parties confined and defined the particular acts of negligence upoa which the jury could make a finding.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. 'Dig. 296.*]

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by J. A. Wallace against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellant's fast passenger train, known as the "Limited," collided with the rear end of a regular freight train on the main line. Just before the collision, and about a car length before the passenger engine reached the rear of the freight train, the appellee, Wallace, who was the fireman of the passenger engine, in order to escape the danger of

to the ground and sustained grievous bodily injuries, for which he sues. The negligence alleged in the petition is: (1) Failure on the part of the operatives of the freight train to observe the rules of the company to sidetrack the freight train 10 minutes before the fast passenger train following it was due, and, failing in that, to post and put out a flag to notify the operatives of the passenger train that the freight train was on the main line and not on the side track in the clear, and to enable the passenger train to stop in time to avert a collision; and (2) failure on the part of the employés of the passenger train to approach the station with the speed of the train reduced and under control, and in failing to keep necessary and proper lookout for flags and for the freight train. The defendant pleaded denial, contributory negligence, and assumed risk. The verdict of the jury was in favor of the plaintiff.

[1] The evidence establishes that the passenger train on which appellee was the locomotive fireman was a fast train, known as the "Limited," running north bound at the time, from Muskogee, Okl., with destination of Parsons, Kan., and was moving at the usual high rate of speed of from 40 to 60 miles an hour. Hulwe is a station on the railway between Muskogee and Parsons, and switches and passing tracks are maintained there;

but it is not a station at which the Limited train stops. One mile south of Hulwe the railway crosses Big Cabin creek. The track south of Big Cabin creek is curved and is downgrade, going north to where it crosses the creek, and is upgrade from the creek to Hulwe Station. As the passenger train was approaching Hulwe, and at a point about one mile south of Hulwe, and just after the engine crossed over the creek, the engine of the passenger train ran into the caboose of a regular freight train which had previously broken loose from the train line. The freight train was also north bound. It appears that the freight train of between 30 and 35 cars arrived at Hulwe Station about 17 minutes

ahead of the passenger train, and when it

slowed down for the switch the slack of the train running back caused the caboose to break loose and roll slowly back downgrade

to the creek. The conductor and a brakeman of the freight train went back to flag the passenger train. The conductor says he went back eight telegraph poles, and the brakeman, according to the evidence, went forward of the caboose about 100 yards. It was proven that rule 99 of appellant, set out in detail in the statement of facts, requires the flagman, in case of accident or obstruction of the track, to go back with danger signals and remain at a point 20 telegraph poles, or 1,000 feet, from the rear of his train, or, when on a curve or downgrade, a distance of 20 tele

graph poles further than above provided, to give approaching trains ample time to stop. There was testimony that the flagman had 13 minutes' time in which to put out a flag before the collision occurred, and that a flagman in such time could have gone down the track the distance of 25 telegraph poles, and if he had done so in this case the engineer of the passenger train could and would have seen him and would have had time to stop the train before it struck the caboose. As

the passenger train was rounding the curve just south of the bridge over Big Cabin creek, the engineer discovered the front flagman, and at once answered by two short blasts of the whistle and applied the air brakes in the emergency; but, before the train could be stopped, the collision inevitably occurred. The collision was forcible, and wrecked the caboose and damaged the engine.

The evidence warrants the findings of fact, which are here made, that appellant through its employés was guilty of negligence proximately causing the injury in failing to post and put out a flag at proper and sufficient distance to give the approaching passenger train warning in time to avert the injury, as pleaded, and that appellee was not guilty of contributory negligence, and did not as a fact assume the risk of injury; and the amount of damages awarded by the jury is warranted by the evidence.

Head, Smith, Maxey & Head, of Sherman, and Alex. S. Coke, of Dallas, for appellant. Wolfe, Wood & Haven, of Sherman, for appellee.

LEVY, J. (after stating the facts as above). [2, 3] The first assignment predicates error upon that part of the fourth paragraph of the court's charge reading:

"And if you believe from the evidence that defendant's employés in charge of said freight train were guilty of 'negligence,' as that term has been defined to you, in causing said two trains to run together, if they did, and that such negligence, if any, was the direct and proximate cause of plaintiff's injury, if any, you will find for plaintiff and assess his damages as hereinafter instructed, unless you find for defendant under other instructions given you."

The objection made to the charge is that it does not refer the jury to the negligent acts alleged or the facts proven, but leaves it broadly for the jury to say whether or not negligence caused the collision. The charge does not, it is true, expressly state to the jury the particular acts on the part of the freight crew that may be considered by them as negligently causing the collision. The charge, though, does refer and restrict the jury to the evidence before them to determine the question of negligence on the part of the freight crew in respect to the collision. According to the pleading of the plaintiff,

the only two acts of negligence charged against the freight crew was the failure to side-track the freight train, as required by appellant's rule, 10 minutes before the passenger train following it was due, and, failing in that, to send back a flagman a distance far enough to stop the passenger train before it could run into the caboose broken loose from the train line of the freight train. And the only evidence offered by the plaintiff as to negligence on the part of the freight crew was in reference to the alleged acts. In view of the pleading and evidence, the charge could not properly be said, we think, to be so erroneous as to require a reversal of the case. And, further, if the court's charge is subject to the objection of being general in respect to the issue of negligence on the part of the freight crew, it would not afford ground for reversal, for the special charges of appellee, together with the special charge of appellant, given by the court, as shown in the record, served to confine, as well as define, the particular acts of negligence that the jury could and would make the finding upon. The assignment is overruled.

The second assignment complains of special charge No. 2, tendered by appellee and given by the court. The special charge authorized a verdict for appellee upon the finding by the jury that the flagman sent out in this case for the purpose of flagging and signaling the operatives of the passenger engine negligently failed or refused to go back the necessary or proper distance to give the approaching passenger train ample time to stop and avoid the collision. The objection to the charge is that it measures appellant's liabil ity by a failure to comply with its rules formulated for conducting its business. The charge, we think, required the jury to measure the act of the flagman entirely from the standpoint of being negligence vel non, and is not subject to the objection made.

There was no error in refusing to peremptorily instruct a verdict for appellant under the evidence in this case, and the assignments numbered 3 and 4 are overruled.

Assignments Nos. 5, 6, and 7 present no error affording ground for reversal, and are overruled.

It is a fair deduction from the evidence, that the jury were authorized to make, that appellee will never be able to perform the labor of a fireman in the future, and will never have the strength in his right arm that he once had. After a careful consideration of the case, we do not feel warranted in disturbing the verdict of the jury on the amount of damages awarded. Assignment No. 8 complaining of excessive verdict, is overruled.

The judgment is affirmed.