This is the doctrine of the supreme court of Illinois, and has been recognized in a modified form in Georgia and Tennessee. The text-writers generally agree that it is not now recognized as the law in the courts of any other state, or of the United States or of England. They also lay it down as an exceptional and unsound rule. There is an overwhelm

ing weight of judicial authority against it.

The only case in this court which apparently recognizes the doctrine is East Line etc. Ry. Co. v. Rushing, 69 Tex. 317. There the court had charged the jury, in effect, that the plaintiff could recover if he "was only guilty of slight negligence and the defendant's servants were guilty of gross negligence." In the opinion the court say: "It is not complained that this charge is not good law, but that the facts did not warrant its being given, there being no proof that the defendant's servants or employees were guilty of wanton recklessness or gross negligence." The opinion then proceeds to show that there was evidence of gross negligence, and nowhere discusses the legal propositions announced in the charge. That proposition was, however, not erroneous, because if the plaintiff's negligence was only slight, that is to say, if he was not guilty of ordinary negligence, he was entitled to recover, provided the servants of defendant had been guilty of negligence, either gross or ordinary.

13

The doctrine that any degree of negligence which may be gross on part of a defendant will enable a plaintiff to recover, notwithstanding his own negligence, is unsound in principle. The damages allowed by law for a wrong negligently inflicted are given, except in peculiar cases, as a compensation, and not as a punisment for the injury. Where the plaintiff's own negligent conduct has contributed to the injury-that is to say, where, but for his own negligence, the damage would not have occurred-to allow him compensation for his loss would be to compensate him for his own negligent misconduct. It is true, that in case of gross negligence exemplary damages may be allowed; but the rule in this state is, that, where there is no actual damage, exemplary damages cannot be recovered.

But there are cases in which a plaintiff who is chargeable with concurring negligence may still recover. If, for example, the servants of a railroad company discover a trespasser upon the track, they must use all reasonable precautions to avoid injuring him; and it may be also that where it is their duty

to keep a lookout for persons upon the track, and when, if this duty had been performed, one passing along it would have been discovered in time to have warned him or to have stopped the train, and this duty has not been performed, ar.d the trespasser has been run over and injured, the company will be liable to respond in damages.

The negligence or trespass of a person does not place him beyond the protection of the law, and does not excuse another for the failure to exercise care to avoid injuring him; much less does it a justify willful injury. In such a case, although the negligence of the plaintiff, in one sense at least, contributes to the injury, the negligence of the defendant intervenes between the plaintiff's negligence and the result, and becomes the proximate cause of the injury. As some of the authorities put it, the plaintiff's negligence in such cases becomes the condition and not the efficient cause of the accident.

The leading case upon this subject is Davies v. Mann, 10 Mees. & W. 546, "where the plaintiff, having fettered the legs of his donkey, had turned him out into the public highway to graze, and while there the defendant, driving recklessly, ran over" and injured the animal. The plaintiff was held entitled to recovery. The decision is correct, and the rule is now the accepted law, though the case seems to have given rise to some confusion in determining later cases.

But in connection with the doctrine just announced, it has been laid down that "when contributory negligence is relied on as a defense to an action to recover damages for personal injuries, if it be shown that they were inflicted recklessly, wantonly, or intentionally, such defense is vitiated and overcome": 2 Wood's Railway Law, 1258. The author adds: "But, in order to avoid the defense of contributory negligence, it is not necessary that the wrongful act of the defendant, its agents, or servants should be wanton and intentional": Citing Cook v. Central R. R. etc. Co., 67 Ala. 533; Tanner v. Louisville etc. R. R. Co., 60 Ala. 621. In both the cases cited the servants of the respective defendants discovered the persons injured upon 14 the track in time to have avoided passing over them. They come strictly under the rule of Davies v. Mann, 10 Mees. & W. 546.

Judge Cooley says: "Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to rights of others which may be justly characterized as recklessness, the doctrine of contributory negligence

has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury": Cooley on Torts, 2d ed., 810. When the numerous authorities which the author cites are examined they are found in the main to be cases in which the defendant or his servants discovered the injured party in time to avoid the injury, or in which they ought to have discovered him. They do not support the doctrine that in every case of gross negligence the injured party may indemnify himself at the expense of the defendant, although by the use of ordinary care he could have avoided the injury.

That contributory negligence is no defense to an injury intentionally inflicted is clear. One who beats another cannot urge the defense that the plaintiff might have escaped the battery by running away. The words "wanton" and "reckless," as applied to this class of cases, seem to us to be somewhat indefinite in their meaning. If they are intended to apply to a case in which the defendant sees the danger of the plaintiff in time to prevent his injury, and takes no steps to prevent it, we fully concur in the proposition that the fact that the plaintiff negligently placed himself in position to be injured is not a defense to the action. Such is not the case before us. Dr. McDonald stepped upon the track of the railroad immediately in front of the engine, and in very close proximity to it, as is shown by the fact that he was thrown off on the side upon which he entered the roadbed. It was an act of negligence which the engineer could hardly have anticipated, even if he had been on the lookout and had discovered him running along the track.

We think the court did not err in its instruction in reference to contributory negligence; nor do we think there was error in refusing the requested charges on the same subject.

It is assigned that it was error to fail to charge the jury as to the duty of the defendant's servants to do what they reasonably could to avoid injury to Dr. McDonald after his danger was discovered, or by the use of ordinary diligence might have been discovered. A mere failure to give an instruction, when no request has been made for it, is not error.

Whether or not the verdict of the jury was contrary to the evidence is a question of fact which we have no power to determine.

The ruling of the court of civil appeals in this case is in conflict with the ruling of the court of civil appeals for the

first supreme judicial district upon the question of contributory negligence, as is shown by the case of Texas etc. Ry. Co. v. Brown, 2 Tex. Civ. App. 281. For this reason 15 this court has jurisdiction to hear and determine the cause, notwithstanding the judgment was reversed and the cause was remanded by the judgment of the intermediate court.

We find no error in the judgment of the district court of Williamson county, and therefore the judgment of the court of civil appeals for the third supreme judicial district is reversed, and the judgment of the district court is affirmed.

RAILROADS-NEGLIGENCE-HIGH RATE OF SPEED.-Running a railroad train at an unusual rate of speed is not negligence as to one who carelessly exposes himself to injury by voluntarily placing himself upon the track where he has no right to be: Shackleford v. Louisville etc. R. R. Co., 84 Ky. 43; 4 Am. St. Rep. 189; but see Vicksburg etc. R. R. Co. v. McGowan, 62 Miss. 682; 52 Am. Rep. 205, and note. The general rule is that negligence cannot be inferred from the rate of speed alone at which railway trains are run: Dyson v. New York etc. R. R. Co., 57 Conn. 9; 14 Am. St. Rep. 82. See the notes to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 818; McMarshall v. Chicago etc. Ry. Co., 20 Am. St. Rep. 453, and Peyton v. Texas etc. Ry. Co., 17 Am. St. Rep. 435.

RAILROADS-WHEN NOT LIABLE FOR Failure to Give SIGNALS.-Until proof is given tending to show that the injury resulted from a failure to give a signal, the burden of proving that it did not arise from such failure is not thrown upon the corporation: Galena etc. Ry. Co. v. Loomis, 13 Ill. 458; 56 Am. Dec. 471, and note. See the extended note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 817, where the question of a failure to give signals as the proximate cause of an injury is discussed. See, also, the notes to Quigley v. Delaware etc. Canal Co., 24 Am. St. Rep. 507, and Welsch v. Hannibal etc. R. R. Co., 37 Am. Rep. 443.

NEGLIGENCE-WHAT IS.-Negligence is the failure to discharge the duty of taking ordinary care to the injury of one to whom the duty is due, such failure being the direct proximate cause of the injury to him: Gunn v. Ohio River R. R. Co., 36 W. Va. 165; 32 Am. St. Rep. 842, and note.

NEGLIGENCE-CONTRIBUTORY, WHEN WILL NOT DEFEAT RECOVERY.-The contributory negligence of one injured will not defeat his recovery where he has been injured through the wanton, willful, or reckless conduct of the defendant: Lake Shore etc. Ry. Co. v. Bodemer, 139 Ill. 596; 32 Am. St. Rep. 218; Florida etc. Ry. Co. v. Hirsh, 30 Fla. 1; 32 Am. St. Rep. 17, and note; Brannen v. Kokomo etc. Gravel Road Co., 115 Ind. 115; 7 Am. St. Rep. 411. and note; Pennsylvania Co. v. Sinclair, 62 Ind. 301; 30 Am. Rep. 185, and extended note; Chapman v. New Haven R. R. Co., 19 N. Y. 341; 75 Am. Dec. 344, and note. Contributory negligence on the part of the person injured will prevent recovery in an action for damages therefor unless the injury was the result of some intentional wrong on the part of the defendant: Carroll v. Minnesota etc. R. R. Co., 13 Minn. 30; 97 Am. Dec. 221. Where a trespasser on a railroad track is injured by the negligence of the company he may not recover unless such negligence was willful: Terre Haute etc. R. R. Co. v. Graham, 95 Ind. 286; 48 Am. Rep. 719. Where an injury

AM. ST. REP., VOL. XL-52

might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages, notwithstanding the previous negligence of the plaintiff: Deans v. Wilmington etc. R. R. Co., 107 N. C. 686; 22 Am. St. Rep. 902, and note; Virginia etc. Ry. Co. v. White, 84 Va. 498; 10 Am. St. Rep. 874, and note.

APPEAL-INSTRUCTIONS.-Failure to give instructions not asked for is not error: Mitchell v. Bradstreet Co., 116 Mo. 226; 38 Am. St. Rep. 592, and note.

SMITH V. CROSBY.

[86 TEXAS, 15.]

EXECUTION SALes. —It will be Presumed in Support of a SHERIFF'S DEED that he took the necessary steps required by law to make a valid sale, and sold all that he was authorized by his levy to sell.

A CONVEYANCE OF ALL A PERSON'S RIGHT, TITLE, and Interest IN A TRACT OF LAND necessarily transfers such tract so far as owned by him. Hence, though he owns an interest less than the whole tract, whether it be an undivided part of the whole or a tract in severalty, his interest, whatever it may be, is transferred.

EXECUTIONS.-A LEVY ON ALL THE DEFENDANT'S RIGHT, TITLE, AND INTEREST IN A TRACT of land is valid though his interest does not extend over the entire tract, and is an undivided interest in a separate parcel thereof.

EXECUTION SALES.-EXTRINSIC EVIDENCE may be received to clearly locate and identify land passing by a sheriff's deed containing an accurate but general description.

EXECUTION SALES INTEREST LEVIED UPON.-A levy, sale, and conveyance by a sheriff under execution of the interest of the debtor in a league of land will pass title to so much thereof as he owns.

JUDICIAL AND EXECUTION SALES ARE NOT SCRUTINIZED by the courts with a

view to defeat them; on the contrary, every reasonable intendment will be made in their favor so as to secure, if it can be done consistently with legal rules, the object they were intended to accom plish.

Robert G. Street, and Scott, Levy, and Smith, for the appellants.

Willie, Campbell, and Ballinger, for the appellees.

16 STAYTON, C. J. The adverse parties claim through J. Mayrant Smith, and, if the sheriff's sale passed his interest in the Bundick 17 league, then appellant has no right, for she claims through a conveyance made by him since the sale by the sheriff was consummated.

The ancestor of J. Mayrant Smith, defendant in execution, owned an undivided interest in the Samuel C. Bundick league, which was partitioned through a decree of the dis