G., C. & S. F. R'y Co. v. Holliday

Citations

• 65 Tex. 512
• 1886 Tex. LEXIS 699

Syllabus

<p>1. Practice—Supreme court—Appeal—Bills of exception—It is the duty of a party bringing a cause to the supreme court to see to its proper preparation for an appeal, and where the record does not disclose that it was through the fault of the trial judge or of the opposite party that appellant’s bills of exception were not filed within the time prescribed by law, the presumption as to negligence is against the appellant, and he cannot complain if his bills are not legally before the appellate court.</p> <p>2. Evidence—-Railroads—Overflows — Freshets — Evidence of freshet subsequent AND EQUAL TO ONE CAUSING DAMAGE COMPLAINED' OF, WHEN ADMISSIBLE— Where, in a suit against a railway company for damages from overflow of land, caused by improper construction of the company’s road, the defendant has pleaded that the overflow was the result of an extraordinary and unusual flood, against which human foresight could not provide, and evidence has been introduced of freshets having occurred at different intervals for a series of years prior to the one by which the plaintiff was damaged, which were equal to it, evidence of a freshet in the year following that in which the damage complained of occurred, greater than the one which caused such damage, is admissible, in connection with the proof relating to previous overflows, as a, circumstance tending to show that the flood causing the damage to the plaintiff was an occurrence against which ordinary and reasonable care might have-, provided. (Citing Mayor v. Baily, 2 Denio 441, and Gray v. Harris, 107 Mass 494.)</p> <p>3. Same—Introduction largely in discretion of trial judge—Defects in proof MAY BE SUPPLIED AT ANY TIME BEFORE CONCLUSION OF ARGUMENT—CONFIRMATORY OF PRIMA FACIE CASE—Revised statutes, art. 1298—The Revised Statutes, art. 1298, leave it largely within the discretion of the trial j'udge as to the admission of testimony, and defects in proof may be supplied at any time before the conclusion of the argument. And where