author: RASBURY, J.

text:
    AMERICAN MACHINERY CO. v. HALEY.
    (Court of Civil Appeals of Texas. Dallas.
    March 14, 1914.
    Rehearing Denied April 4, 1914.)
    1. Tbial (§ 139) — Direction of Verdict.
    To warrant a direction of verdict for defendant, it must appear that there is ho testimony upon which the jury can reasonably find a verdict for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    2. Master and Servant (§§ 101, 102) — Safe Place to Work — Master’s Duty.
    The master must exercise ordinary care to furnish his servant a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    3. Master and Servant (§ 286) — Action for Injury to Servant — Question for Jury.
    In an action for an injury to a servant caused by a dummy elevator falling which the servant was dismantling preparatory to the installation of new elevators, held, under the evidence, a question for the jury whether the master exercised due care to provide a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 10O1, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig.' § 286.]
    4. Master and Servant’ (§ 203) — Assumption of Risk — Nature and Extent.
    Assumed risk is the voluntary exposure of the servant, without remonstrance, to the ordinary hazards of the particular use of machinery or appliances, claimed by him to be defective or unfit, but of which conditions or dangers he ■knew, or must necessarily have acquired knowledge in the ordinary pursuit of his duties.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.

    Eor other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.]
    5. Master and Servant (§ 205) — Place to Work — Inspection and Test.
    In the application of the rule of assumed risk, there is on the servant no duty of inspection, and, in the pursuit of his work, he may assume that the master has done his duty and provided for him a safe place to work.
    . [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.]
    6. Master and Servant (§ 288) — Actions for Injury to Servant — Questions for Jury.
    In an action for an injury to a servant caused when the supports of a dummy elevator which he was dismantling fell, the question of assumed risk held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    7. Master and Servant (§ 289) — Action for Injury to Servant — Question for Injury —Contributory Negligence.
    In an action for an injury to a servant by a dummy elevator which he was dismantling falling, evidence held sufficient to take to the jury the question of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    Error to District Court, Dallas County; Kenneth Eoree, Judge.
    Action by B. E. Plaley against the American Machinery Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, for plaintiff in error. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in'Dec. Dig. & Am! Dig. Key-No. Series & Rep’r Indexes

   RASBURY, J.

Defendant in error sued plaintiff in error for damages for personal injuries sustained by defendant in error while employed by plaintiff in error as a common laborer; the precise grounds of negligence alleged being the failure of the plaintiff in error to provide defendant in error a reasonably safe place for the performance of the duties of his employment. Plaintiff in error met the charge of negligence by the general denial and pleas of assumed risk and contributory negligence. Trial by jury resulted in verdict for defendant in error, followed by appropriate judgment, from which this writ of error is prosecuted. •

The facts essential to a consideration of the appeal are in substance as follows: Plaintiff in error was engaged in installing elevators in a seven-story building in the city of Dallas, then in course of construction, and defendant in error was employed by plaintiff in error as a common laborer or unskilled workman in and about the work. At the time defendant in error was injured he was engaged in dismantling a “dummy” elevator under directions of plaintiff in error’s foreman. This “dummy” elevator was a temporary frame structure which was drawn up and down the elevator shafts in the manner that an ordinary elevator moves, except that the “dummy” was drawn up and down the shaft by block and tackle. The “dummy” had a floor and a top; the latter being supported by uprights extending from the floor to the top, the sides of the dummy being practically uninclosed. The dummy was -built for the twofold purpose of transporting men and material up and down the building. The work of installing the elevators had progressed to that extent that it became necessary to dismantle the temperary structure we have described in order that the permanent cars might be placed, and, as we have said, defendant in error was engaged in that duty. It was the custom to stop the dummy for a long period of time at some given floor, and the one defendant in error-was dismantling had been at rest on the third floor of the buildi-ng for quite three weeks, and was secured in position in the following manner: The shafts built in the building for the elevators were inclosed on three sides, and open on one. Fastened in the solid wall directly in front of the opening in the shafts were steel or iron brackets or bolts, which extended from and held in position an.upright steel guide pole up and down which the permanent elevators would run when installed. On these brackets in the space between the guide poles and "the walls was placed a 2x4 plank extending across the shaft wall. A 2-xlO timber or plank was placed on the 2x4 so fastened against the wall, and extended across the shaft opening, resting on the floor of the building. Upon this 2x10, arranged and secured as we have said, the dummy was lowered and remained until removed to another floor. Defendant in error in the process of dismantling the elevator had, with the aid of a pinch bar, removed the top, the floor, and all but three or four pieces of the framing, when the 2x10, upon which he was standing, together with the remaining portion of the “dummy,” fell a distance of about 40 feet, and the defendant in error, as a result, was seriously and permanently injured. The 2x4, which rested upon the bolts fastened in the wall, did not fill the space between the guide pole and the wall by approximately 4 inches, and hence did not set firmly on the bolts, and in the space between the guide poles and the wall. It, however, remained on the bolts when the 2x10 and the dummy fell, but was out of adjustment. The fall was caused by the 2x10 working or slipping off the 2x4. Plaintiff was familiar with the method and manner of anchoring the dummy, and had assisted, without accident, in dismantling a similar one in the companion shaft in the building. He made no examination or inspection, of the supports to see if they were safe, but assumed that the foreman had done so, and relied upon plaintiff in error in that respect. Plaintiff in error’s foreman examined the supports two or three days before the accident, and found them safe and in good condition.

The first error assigned is the refusal, of the trial judge to direct verdict for plaintiff in error. This should have been done, it is urged, because the evidence fails to show that the accident resulted from any negligence on the part of plaintiff in error. Before such course is warranted, the rule is that it must appear from the whole case as made by the testimony that the plaintiff has no testimony upon which the jury can reasonably find a verdict in his favor (I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106); and we think the evidence in the instant case falls short of sustaining the rule stated. The general rule is that it is the duty of the master to furnish the servant a safe place to perform his duties, and the measure of his duty is to exercise ordinary care in that respect, and whether the facts disclose a compliance with the rule is at all times a question for the jury. In connection with the latter rule it is practically undisputed that the place assigned to defendant in error to perform his labor was approved and furnished by plaintiff in error; in fact a similar arrangement was adopted and furnished for dismantling the dummy in the companion shaft prior to dismantling the one upon which appellee was injured. The timber supporting the dummy did fall, and that fact, together with the facts showing the manner and method of anchoring the elevator, were all the facts adduced, and it was for the jury to Say, upon consideration of the same whether plaintiff in error met the rule of ordinary care. Eor us to say that plaintiff in error did exercise ordinary care would be to pass upon the facts. We incline to the opinion that the jury probably concluded that the cause of the fall of the dummy was that the 2x10 by degrees worked off the 2x4; yet, admitting such to be the only conclusion to be deduced from the testimony, it does not present a case where there is no testimony from which the jury could reasonably have deduced negligence, since the jury may have believed that plaintiff in error should have anticipated such a result, and such conclusion is reasonable in view of the narrow surface of the 2x4 upon which the 2x10 rested, and the failure of appellant to in some manner fasten the 2x10 to the 2x4 to prevent the very result that did probably occur. Nor does the fact that the 2x10 may have worked off the 2x4 as a result of appellee’s exertions in performing the work assigned to him affect the conclusion stated, as urged by appellant. On the contrary, it occurs to us that it supports the theory that appellant,' in the exercise of ordinary care in preparing appel-lee a safe place to work, should have anticipated the identical mishap when it directed appellee to perform his work upon the elevator constructed and arranged by appellant for appellee’s use.

It is next urged under said assignment that appellee assumed the risk of the conditions which brought 'about his injuries. In a recent case assumed risk is said to be “the voluntary exposure of the servant, without remonstrance, to the ordinary hazards of the particular use of machinery or appliances, claimed by him to be defective or unfit, but of which conditions or dangers he knew, or must necessarily have acquired knowledge in the ordinary pursuit of his duties.” G. H. & H. R. Co. v. Hodnett (Sup.) 163 S. W. 15. In the application of the rule of assumed risk it may also be said that there is on the servant no duty of inspection, and that, in the pursuit of his work, he may assume that the master has done his duty and provided for him a safe place to work. T. & N. O. Ry. Co. v. Bingle, 91 Tex. 287, 42 S. W. 971; Peck v. Peck, 99 Tex. 10, 87 S. W. 248. Under the rules stated it is argued by plaintiff in error, in effect, that an examination of the 2x10 by defendant in error at intervals as he progressed with his work would have disclosed any change in the original safe place furnished him by plaintiff in error, and that such occasional examination was obviously necessary to appellee’s safety: It occurs to us that the proposition furnishes a refutation of its own soundness under the evidence. It is claimed by plaintiff in error, and its foreman testified, that the arrangement which anchored the elevator was a safe place as arranged, and that the change from a safe place to an unsafe one re-, suited as defendant in error’s work progressed. Defendant in error testified that he had dismantled a similar dummy on a similar arrangement, without accident, and relied upon plaintiff in error to furnish him a safe place to work upon.. Now, what we have said being true, and conceding that defendant in error; by turning aside from his employment and making an occasional examination of the 2x10, would have discovered whether it was in danger of slipping from the 2x4, nevertheless to charge defendant in error, under the rule of assumed risk, with the duty claimed is inevitably but to charge him with the duty of inspection, or to shift to the servant the duty imposed by law upon the master. Defendant in error’s sole duty, aside from-assuming the risks of his employment while engaged in his work, was the exercise of that care which persons of ordinary prudence exercise to the same end when similarly engaged. The most that can be said is that it was the duty of the court to instruct the jury on assumed risk in compliance with the rule we have stated,- and leave it with, the jury to determine as they would any other question of fact. This the court did, and the jury passed on the question, and we, are without authority to disturb the same.

It is also urged that the peremptory charge should have been given for the reason that the dangers of the situation were so obvious that appellee contributed to his injury by failing to take such precautions as would insure his safety while engaged in his work. In-view of the duty of plaintiff in error to furnish a safe place for defendant in error to work, and to inspect the same, and in view of the character of the structure, and defendant in error’s knowledge of same, we believe the issue of contributory negligence was raised. The trial court was of like view, and correctly submitted the same for the jury’s determination, and, since the evidence did not show that defendant in error, as matter of law, was so guilty, the finding of the jury settled the issue.

The second assignment complains of the refusal of the court to instruct the jury, in effect, that if plaintiff in error’s foreman inspected the elevator three or four days before the accident, and found it properly supported, and that the foreman had no reasonable cause to believe the supports had been changed up to the time defendant in error began work, and that defendant in error was experienced in supporting. such dummy elevators, and that he could have detected during his work the position of the supports, and that under the circumstances plaintiff in error’s foreman acted prudently in directing defendant in error to perform the work he did, to find for plaintiff in error, without reference to all other issues in the case. Plaintiff in error says it was entitled to this charge under the rule permitting the defendant to group and have presented to the jury facts which, if true, would in law establish a given defense when not covered by the main or allowed special charges. Such is the rule. St. L., S. F. & T. Ry. Co. v. Overturf, 163 S. W. 639, decided by this court at this term, etc. But we think the charge in consonance with what we have said at another place in this opinion was properly refused, because it ignored plaintiff in error’s duty to furnish defendant in error a safe place to work, and placed upon him the duty of inspection; and for the further reason that the court did, at the request of plaintiff in error, instruct the jury that if, after defendant in error’s foreman inspected the dummy, others altered its situation, and rendered it less secure, and such alteration was the proximate cause of defendant in error’s injury, to find for plaintiff in error, without reference to other issues.

The fifth assignment urges that the fifth paragraph of the court’s charge is erroneous, because vague, involved, misleading, and contradictory. The charge correctly told the jury that appellee assumed all the dangers and risks of his employment of which he had knowledge, or of which he must necessarily have acquired knowledge, and that he, as well, assumed all risks ordinarily incident to his employment, etc., but that he did not assume the risk of appellant’s negligence. It is the qualification or explanation at the conclusion of the charge that is complained of. While we do not agree that the charge is susceptible to the criticism directed against it, a discussion of the issue is unnecessary, since the court, by two special charges given at the request of plaintiff in error, placed the matter in such light as to remove all doubt from the minds of the jurors as to what was intended. By the first special charge the jury were told that, if the dummy was insecurely supported and dangerous when defendant in error commenced dismantling the same, and such condition was due to plaintiff in error’s negligence, but the danger was nevertheless patent and obvious, so that one of ordinary prudence situated as was defendant in error could have discovered the same in time to have avoided the accident, to find for defendant in error. By the second special charge the jury was told that, if defendant in error had equal means with, plaintiff in error for seeing the danger of the dummy falling as a result of its insecure fastenings, defendant in error assumed the risk of it doing so, and verdict should be for plaintiff in error, without reference to any other issue in the ease.

The main charge, as supplemented by the two special charges, placed both defenses before the jury in as favorable a light for defendant in error as he could demand, and surely did not mislead the jury in that respect.

We have carefully examined the sixth and seventh assignments of error, and, because they do not, in our opinion, disclose reversible error, same are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    TIMPSON & H. RY. CO. v. SMITH et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 4, 1914.
    Rehearing Denied March 26, 1914.)
    1. Railroads (§ 108) — Construction—Openings in Roadbed — Water Courses.
    Under Rev. St. 1911, arts. 6485, 6495, respectively, providing that railroad companies may construct their roads across any stream of water, but shall restore such stream of water to its former state, or to such a state as shall not impair its usefulness, and. that they shall in no case construct a roadbed without the necessary culverts or sluices as required by the natural lay of the land, it is proper to compel a railroad company by injunction to construct in its roadbed openings and sluiceways in such a manner that surface waters and natural streams will have outlets, and will not overflow the adjoining land.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 333-336; Dec. Dig. § 108.]
    2. BailRoads (§ 113) — Injuries to Land-Persons Entitled to Sue. .
    Where a railroad company, which had contracted for a right of way, took dirt from land outside its right of way, this act was an independent .trespass entitling the then owner to recover damages, and such right did not pass to a subsequent grantee of the land, unless it was specially conveyed.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 230, 351-357, 359-361, 363, 364; Dec. Dig. § 113.]
    3. Judgment (§ 248) — Conformity to Pleading.
    In an action against a railroad company for damages for constructing its line over plaintiff’s land, the railroad company set up that it contracted with plaintiff’s predecessor in title for a right of way 100 feet wide; that in several instances it became necessary to take dirt from the adjoining land which it did; that the then owner agreed to accept the sum of $5 as compensation; and it tendered to plaintiff the sums agreed to be paid for the right of way and for the dirt taken, praying specific performance of the contract. Held that, as the proof of facts not alleged, although admitted without objection, can furnish no basis for a judgment, a judgment for plaintiff for damages for the taking of soil outside of the right of way cannot be sustained; there being no pleading, that the rights of the then owner for the trespasses were assigned, but a judgment for the amount tendered for such damages will he sustained.
    [Ed. Nóte. — For o'ther cases, see Judgment, Gent. Dig. § 434; Dec. Dig. § 248.]
    4. Specific Performance (§ 12) — Bight to Specific Performance — Defenses.
    Where a railroad company constructed its line under a written contract for the purchase of a right of way, specific performance will not be denied because it had not made reparation for independent trespasses upon other land of the owner of the right of way.
    [Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 26-28, 37; Dec. Dig. § 12.]
    Appeal from District Court, Busk County; W. G. Buford, Judge.
    Action by J. E. and Joe Smith against the Timpson & Henderson Bailway Company. From a judgment for plaintiffs, defendant appeals.
    Modified and affirmed.
    Brooke & Woolworth, of Carthage, and Chas. L. Brachfield, of Henderson, for appellant. John B. Arnold, of Henderson, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

In May, 1913, the appellees, J. E. and Joe Smith, instituted this suit against the appellant, alleging, in substance, that they were the owners in fee simple and entitled to the possession of a tract of land situated in Busk county, a part of the Cheri-no survey, which is fully described by metes and bounds; that in October, 1909, the Timp-son & Henderson Bailway Company, appellant herein, unlawfully entered 'upon said land, constructed a roadbed and railroad thereon, and appropriated to its own use for that purpose about 8 acres, consisting of a strip 200 feet wide, and thereby greatly damaged the remainder of the land; that the railway company has paid to the owner of the above-described land no part of the damages resulting from the wrongful appropriation of the land and the construction of its road upon the strip above mentioned.

In the next succeeding paragraph the petition is as follows: “If the Timpson & Henderson Bailway Company has or should legally acquire the right to locate, build, and maintain its roadbed and railroad on and across said land, farm, and premises, and appropriate to its use and benefit the land so taken by it, then plaintiffs would show that defendant unlawfully and negligently constructed said roadbed and railroad on, over, and across said land, farm, and premises, and adjacent thereto, and by reason thereof every recurring rain floods and deposits water, dirt, drift, and flébris on, over, and across said land, farm, and premises, filling and obstructing the water courses and natural drainage, which increasingly and recur-ringly damages said land, farm, and premises, rendering it unfit for the uses to which it was designed and suitable.” Then follow averments more specifically describing the physical conditions existing at the time the roadbed was constructed, the changes made by such construction, and their effect upon 'the flow of the water. The. petition also states in detail the extent and character of the injury claimed that resulted from the construction of the railway and the failure on the part of the appellant to provide sufficient outlets for the flow of the surface water. The damages are thus itemized: The value of the 8 acres appropriated for the roadbed, $400. “The so taking in the manner, form, and place as done has damaged the adjacent parts of said land, farm, and premises $400.” Filling up the natural water courses, the continuous deposits of sand and other material over the farm by the recurring rains, $1,600. The probable damages likely to result in the future, if the improper conditions brought about'are not corrected, are placed at $2,500.

The petition concludes as follows: “Plaintiffs have repeatedly asked defendant, its president and officials, to make due compensation for the wrongs, trespasses, and injuries above alleged, and to restore said land, farm, and premises to the condition the same were in when so entered and altered by defendant, and to prevent further recurring and continued injuries and damages to said land, farm, and premises, all of which the defendant has willfully and negligently failed and refused to do, to plaintiffs’ damage $3,000. Wherefore plaintiffs sue, praying for citation' to defendant to answer herein, and, upon trial of this cause, for judgment and decree for title and possession of that portion of said land taken, held, and used by defendant as above alleged, for full and adequate damages done and caused by defendant to said land, farm, and premises, for an order compelling defendant to restore tlie surface drainage, water courses, and streams on and adjacent to said land, farm, and premises to their original and safe condition as they were at the time defendant entered thereon and did and caused the things and damages above alleged; and, in case defendant shows, seeks, or acquires the lawful right to hold and use any portion of said land, farm, and premises for any lawful purpose, for a full and adequate compensation for the land so taken, damages to the whole of said land, farm, and premises done and caused, as above alleged, and that may accrue therefrom in the future to said land, farm, and premises, and for an order compelling the defendant to restore and maintain the surface drainage, streams, and water courses on and near said land, farm, and premises to their original safe conditions,” etc.

The appellant answered by a general demurrer and special exceptions and a general denial, after which appellant specially pleaded in substance as follows: (1) The statute of limitation of two years. (2) That at the time of the construction of the line of railway upon the land in question the railway company was entitled to go upon the land and construct its railroad thereon; that it did so with the full knowledge of the then owner and claimant of the land, and' under a contract in writing, and that the owner and the plaintiffs saw and knew that the defendant was grading said road and expending money thereon for the purpose of operating its trains over the same; that the then owner and claimant of the land, knowing that the defendant company was expending a large amount of money in the construction of said roadbed for the purpose of permanently operating its trains over the same, permitted the company to so build and construct its line of railroad; that, by reason of this, plaintiffs are now estopped to claim that defendant is a trespasser. (3) It is alleged that the railway company entered upon said land by virtue of an agreement and contract in writing entered into between the defendant company and I. M. Wylie, who was on the-day of October, 19Ó9, the owner in fee simple of the land described in the plaintiffs’ petition; that the terms of that contract were, in substance, as follows: That the defendant was< to go upon the land and construct its roadbed over the same; that is to say, the defendant company was to have a strip of land 100 feet wide, extending across the tract approximately -- feet, upon which to construct its roadbed; that the defendant company was to pay to Wylie for this strip of land the sum of $30; that Wylie agreed to execute to the defendant his warranty deed conveying said strip of land; that this contract and agreement was in writing as aforesaid, signed by said Wylie ' and the defendant company, but that the same has been lost or mislaid, and cannot | now be found; that, acting upon said written contract for the purchase of the above strip of land, the defendant company went upon the same with the full knowledge and consent of Wylie, the then owner, and constructed its roadbed; in doing this, it became necessary that the defendant take more dirt than was contained within the 100 feet theretofore acquired by the contract referred to,-and the defendant company did, in fact, at four separate places on said tract of land, take a small amount of dirt outside of the right of way contracted for; that the taking of this dirt in the places mentioned was well known to Wylie at the time; that immediately after the defendant company had a verbal agreement with Wylie by the terms of which the company was to pay to Wylie the sum of $5 therefor; that thereupon the defendant company tendered to Wylie the sum of $35 in full payment for said strip of land and for the excess of dirt used as above stated, and demanded of Wylie the execution of a written conveyance in accordance with the previous agreement; that Wylie refused to accept the sum of money so tendered, and refused to execute the deed of conveyance to the right of way. It is further alleged that, in going upon the land in the manner described, the railway company had constructed permanent and valuable improvements thereon, amounting in value to $10,000. It is also alleged that, by reason of these facts, the appellant is entitled to have the contract with Wylie enforced, and defendant tenders to the plaintiffs the balance of said sum of money due thereon, to wit, the sum of $34; $1 having theretofore been paid to Wylie. (4) It is specifically denied that the injuries resulting from the overflow claimed in the petition were caused by any negligence on the part of the railway company in the construction of its roadbed, or its failure to leave proper outlets.

After a trial before the court, a judgment was rendered in favor of the appellees for the sum of $29 as the unpaid balance of the purchase money for the right of way, the further sum of $50 as damages which accrued to the plaintiffs’ land by reason of the removal of dirt from the land not included within the right of - way granted, and the sum of $200 as damages to the land adjacent to the right of way. It was further ordered by the court that the railway company, upon the payment to the clerk of the court below of the sum of $29, with 6 per cent, interest thereon from date, recover of the plaintiffs, J. E. and Joe Smith, the title and right of possession of the strip of land designated as 100 feet across the tract in controversy. A mandatory order was entered directing the railway company “to restore and maintain all-streams and water courses along, upon, across, or over which the defendant has constructed a railroad and roadbed on plaintiffs’ land and premises, and that portion thereof recovered herein, to their former state, and to such state as will not unnecessarily impair tlie usefulness of said land, and to construct and maintain all necessary ditches, culverts, and sluices as the natural lay of said land requires for the necessary drainage thereof.” Each party was required to pay his own costs.

The court filed the following as his findings of fact and conclusions of law:

“I find that Wylie, who was the vendee of Smith, made a contract with the railroad company to convey to them a right of way through the land involved in this suit, a strip of land 100 feet wide and containing four and a fraction acres of land, in consideration of $30, $1 of which was paid in cash, and $29 was agreed to be paid, and tendered to the plaintiff, which he refused to accept.
“I find that the railway company, in the construction of their road, went outside of their 100-foot right of way and took the surface dirt, a foot or a foot and a half thick, from an acre of the plaintiffs’ land, for which they have paid no compensation, and for which they should pay the sum of $50.
“I find that, on account .of the negligent construction of the railway on and across the plaintiffs’ land, by overflows and deposits of sand and débris other than would have been deposited by the natural flow of the water, plaintiffs’ land has been injured in the sum of $200.
“I find that the manner in which the road is at present constructed has diverted the waters from their natural flow, and caused the land to overflow more than it otherwise would have done.
“I find that the plaintiffs’ claim for the $50 damage to the land would have been barred by the statute of two years’ limitation, but, it being a part of the company’s claim of right of way, it is manifestly unjust that the statute of limitation should be applied to this while the company is allowed to carry out its contract with reference to the right of way,, and therefore, in consideration of equity, the plea of the statute of limitation is disallowed.
“Judgment is therefore given against the railway company for $29, the balance due on the right of way, with 6 per cent, interest on the same, for $200 damages for injury to the land to date, and for $50 damages to the acre of land the surface of which was removed and placed in the right of way.
“It is further ordered that a mandatory injunction issue requiring the defendant to construct its roadbed and openings and sluice-ways in such manner that the waters will flow in their natural way as they flowed before.
“It is further ordered that upon payment of the $29, and payment of the $50 allowed for damages to the acre of land, that the title to the right of way strip 100 feet wide across the land in controversy be divested out of the plaintiffs, and be vested in the defendant company.”

It is insisted that the cause of action pleaded was barred by the statute of limitation of two years, and that this was disclosed both by the petition and the evidence. The facts do not support the contention, and the assignments are overruled.

In the third assignment of error it is contended that the evidence did not authorize the judgment for $200 as damages for injury to the land, resulting from obstructing the drainage and diverting the natural flow of the water. It is unnecessary to here reproduce the evidence upon that issue. A careful examination of the record has convinced us that there was sufficient evidence to support the findings of the court.

It is also insisted that the judgment awarding the mandatory writ of injunction should not have been rendered. The cause of action and the judgment rendered are based upon facts showing that, in the construction of its roadbed, the appellant had interfered with and diverted the natural flow of the surface water across this land, and had failed to provide and maintain sufficient outlets, and that, as a result, the land was flooded, washed, and damaged by each recurring overflow. The order of the court is substantially in accordance with the requirements of articles 6485 and 6495 of the Revised Civil Statutes of 1911.

The judgment was fundamentally wrong in awarding a recovery of $50 as damages for taking dirt from land outside of the right of way during the construction of the railway in 1909. Whatever damages resulted from that trespass belonged originally to Wylie, who was at that time the owner of the land, but who is not made a party to this suit. It is true that there is evidence tending to show that the appellees purchased Wylie’s claims against the railway company at the time they acquired title to the land, but there is no pleading by the appellees alleging any such damages. But, if by any possible construction it could be said there was, there are no allegations that the claim for such damages had been acquired by the appellees. It is true the appellant concedes in its answer that it was due Wylie $5 as damages for removing this dirt, and tendered that amount along with the balance, which it admits was due as a part of the purchase price of the right of way. But such pleadings can form no basis for the rendition of a judgment for $50. Proof of facts not alleged, although admitted without objection, can furnish no basis for a judgment. Cooper v. Laughlin, 75 Tex. 526, 13 S. W. 37; Hall v. Jackson, 3 Tex. 305. The taking of dirt outside of the right of way was an independent trespass wholly unconnected with the contract by which the appellant acquired the right of way. Assuming that appellant was seeking in this action to enforce a specific performance of Wylie’s agreement to convey the title upon a tender of the balance of the purchase price, appellant was not bound to make reparation for that independent trespass befbre it was entitled to that particular relief. A tender of the balance due or an offer to pay after a previous tender would be a full compliance of all that was required as a condition precedent to a judgment awarding it the legal title to the land in controversy. However, inasmuch as the appellant admits that the sum of $5 was due for the dirt taken outside of the right of way, and offers to pay that sum, the judgment will be reformed so as to award the appellees for that element of damages only the amount tendered, to wit, $5. In all other respects, the judgment will remain undisturbed.

There was no error in the manner of apportioning the costs between the parties as was done in this instance. In its answer the appellant sought affirmative relief, which 'was awarded in the judgment rendered. The case is not one that comes within the provisions of the statute requiring the court to enter upon the record his reasons for adjudging the costs otherwise than against the losing party.

All costs of this 'appeal are adjudged against the appellees.


author: LEVI, J.

text:
    DEAN v. DEAN et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 6, 1914.
    Rehearing Denied March 19, 1914.)
    1. Judgment (§ 747) — Conclusiveness—Partition — Fraud.
    Since, under Rev. St. 1911, art. 6115, a judicial partition finally adjudicates the rights of the parties, a partition judgment would be valid and conclusive, even on direct attack, as against a bona fide purchaser of the property from the person who bought at the partition sale, though the judgment was procured by the fraudulent representations of another with respect to the property partitioned.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1053, 1284^-1296; Dec. Dig. § 747.]
    2. Judgment (§ 251) — Damages — Allegations.
    Where the petition, in an action to set aside a partition judgment for fraud by defendant in procuring it, alleged that title did not pass at the partition sale to defendant, or to the purchasers from him, because of such fraud, plaintiff cannot recover damages against defendant for the value of the land, or the price he sold it for.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    3. Judgment (§ 350) — Vacating—Grounds— Want of Service.
    A failure to serve process on defendant, or the making of service in a manner not in substantial accordance with the statute, is, as a rule, ground for vacating a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 686, 688, 690; Dec. Dig. § 350.]
    4. Judgment (§ 392) — Actions to Vacate— Evidence.
    On a direct attack on a judgment, as for want of service, etc., it may be shown by extrinsic evidence that one part of the record contradicts another part, so that a recital of service or want of service in a judgment may be contradicted by producing the original summons and return.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 750, 753, 754; Dec. Di¿. § 392.]
    5. Judgment (§ 383) — Direct Attack — Persons Protected.
    While, if citation was not served upon minor defendants in a partition action,' the judgment would be invalid on direct attack as to the parties to the judgment, bona fide purchasers from such parties will be protected where the judgment recites service, though the judgment be invalid for want of service.
    [Ed. Note. — For other cases, see Judgment, Dec. Dig. § 383.]
    6. Judgment (§ 394) — Conclusiveness—Persons Concluded.
    In an action to set aside a partition judgment for fraud in procuring it, and for want of service on infant defendants, the rights of the holders of notes given in part payment of the land at the partition sale, who were not parties to the action, cannot be determined.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 756; Dec. Dig. § 394.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Original proceeding by E. W. Dean against R. A. Dean and others to set aside a judgment in a partition suit. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded as to all of defendants except J. W. Venable, as to whom judgment is affirmed.
    In August, 1905, there was filed in the district court of Smith county a suit for partition of 140 acres of land. R. A. Dean was plaintiff in the suit, and Fannie, Edna, Ernest, and Murchison Dean and John Thomas were defendants therein. The petition alleged that the four named Deans were minors, and John Thomas was the legally appointed guardian of the minors, and all were residing in the state of Arkansas, and that both the plaintiff and the defendants were tenants in common of the land, and sought to have it partitioned amongst them as the interests of plaintiff and defendants appeared. The judgment in the suit had the recital, “And it appearing to the court that Fannie, Edna, Ernest, and Murchison Dean are minors without legal guardian in the state, N. A. Gentry is hereby appointed guardian ad litem, and it further appearing that all parties have been duly served as required by law,” and proceeded to decree that R. A. Dean was entitled to a six-sevenths interest in the land, and the defendants were entitled to a one-seventh interest, and that the land was incapable of partition, and appointed a receiver to sell it. The report of the receiver showed that the land was sold to R. A. Dean for $214.25, which amount was deposited in court. The appellant has never taken possession of his part of the money, and it is still in the hands of the clerk. The report of the receiver was approved by the court, and title decreed to be vested in the purchaser. .In 1910 R. A. Dean conveyed 53 acres of tlie land to W. T. Griffin for the recited consideration of $214.25 cash, and three notes aggregating $285.75. And R. A. Dean in 1910 conveyed to J. W. Venable the remaining 87 acres of the land for the recited consideration of $200 cash and four notes, each for $200. The instant suit, and in which this appeal is prosecuted, is an original proceeding brought by Ernest W. Dean to cancel and set aside the judgment in the suit for partition above mentioned, and then to recover the entire 140 acres of land. W. T. Griffin and J. W. Venable, purchasers of the land under R. A. Dean, are made defendants, besides the said wean heirs and R. A. Dean. The petition alleged that the judgment in the partition suit was void because at the time of the partition judgment plaintiff was a minor without a guardian residing in Arkansas, and that no citation was served on him, and that M. J. Dean, grandfather of the plaintiff, prior to his death in August, 1899, conveyed the land to plaintiff by deed, and the deed-was fraudulently concealed ■ by R. A. Dean, and that Dean, Griffin, and Venable each knew that the land had been conveyed to plaintiff, and knew that the representations in the partition suit and judgment that R. A. Dean was entitled to six-sevenths and the defendants therein to one-seventh of the land were false .and fraudulently made and untrue. Mrs. Dannie Shores, who was a defendant, answering, adopted appellant’s pleadings; but she does not appeal. Defendant R. A. Dean disclaimed any interest. The defendants Griffin and Venable answered that they were purchasers ■of the land in good faith, for a valuable consideration, without any knowledge that a conveyance had been made to plaintiff, and believing that the judgment in partition was in ■conformity, with law, and, further, that if a conveyance was made to plaintiff, as alleged by him, it was never delivered or intended to vest title. Upon the conclusion of the •evidence the court directed a verdict for the defendants.
    It appears from the record that M. J. Dean, the grandfather of appellant, was the former owner of the land in suit. At his •death, in. 1903, he left surviving him six grown children, and four minor grandchildren, the heirs of his deceased son Walter. After the death of M. J. Dean five of the .grown children believing they had an inheritable interest, executed a deed to their undivided inherited interest in the land to their brother R. A. Dean. There was no consideration for the execution of the deed, and it was made for the sole purpose of putting the apparent legal title of M. J. Dean, deceased, in R. A. Dean, for convenience in partition and sale. It was on this deed that R. A. Dean obtained the decree, in the partition suit mentioned before, of a six-sevenths interest in the land. There is evidence in the record going to show that M. J. Dean caused to be written a deed, with warranty of title, conveying on its face the land in controversy in fee simple, on August 25, 1899, to “Ernest Dean, heir of Waiter E. Dean, deceased.” This deed appears signed by M. J. Dean of date August 25, 1899, and attested by three witnesses. It was not acknowledged nor recorded. And there is evidence tending to show that in the deed as originally drawn up there was also inserted, but subsequently erased at a time not given, the name of Fannie Dean as a grantee. After signing the deed, M. J. Dean retained possession of it, and deposited it with his effects in his house, where it was found at his death. And the facts and circumstances further appearing in the record tend to make an issue of fact to the effect of the intention of M. J. Dean to effectuate delivery of the deed to vest title in the appellant, or the appellant and his sister. And the evidence, tends to make the further issue that R. A. Dean knew of the existence of the deed before partition suit was filed; and kept possession of and failed to disclose its existence before or at the time of the partition suit. The evidence does not disclose or tend to disclose that Venable knew of the deed before or at the time of his purchase under R. A. Dean, or had any notice of the alleged conduct of R. A. Dean in respect to the deed. The evidence is as conclusive as to Griffin. There is evidence to show; further, that the cash consideration cited in the deed to Griffin from R. A. Dean was not in fact cash, but represented the estimated value of his wife’s inherited interest. At the time of the partition suit and the decree therein and sale of the land the defendant Deans named in the partition judgment, and grandchildren of M. J. Dean, were each minors residing with their mother in the state of Arkansas. It is made to appear, on one hand, that a citation in the partition suit to the minor defendants was sent to Arkansas, and there was a sworn return of service in person on each nfinor. It is made to appear, on the other hand, that the citation was merely left at the residence where the manors resided, and the minors were not in fact served personally. The notes executed by Griffin and Venable to R. A. Dean for the land werq hypothecated before maturity to an innocent holder, who is not a party to this suit.
    Lasseter & Mcllwaine and N. A. Gentry, all of Tyler, for appellant. Fitzgerald, Butler & Bulloch, of Tyler, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVI, J.

(after stating the facts as above).

The first assignment, predicating error upon the court’s peremptorily instructing a verdict against plaintiffs, should, we conclude, be sustained in part as to all defendants except the defendant Venable, and as to him it should be overruled. It should be held,- we think, that there is evidence sufficient to raise an issue for decision by the jury of the intention of M. J. Dean to effectuate delivery of tlie deed to pass title to appellant, or to appellant and Ms sister. Being in tlie attitude of an owner, under tlie issue, of tlie entire tract at tlie time of tlie partition suit, then appellant would further be entitled, if the evidence warranted the issue, to have the jury find whether or not the judgment of partition was obtained by the alleged fraudulent conduct practiced by R. A. Dean in respect to the concealment of the real facts about the conveyance to appellant, and whether or not the purchasers, Griffin and Venable, had knowledge of such conduct and fraud of R. A. Dean. It is believed, however, that notwithstanding a favorable finding to appellant by the jury be here assumed by the court — that appellant was the owner by deed, and was prevented by the alleged fraudulent conduct of R. A. Dean from advancing his title against any partition judgment — it would nevertheless follow in this record, as a matter of law, that appellant cannot maintain his suit to cancel and set aside the judgment in the partition suit, and then to recover the land, or its value, of the defendants Griffin and Venable, because of such alleged fraud of R. A. Dean. In this connection the evidence conclusively shows, as held by the trial court, that Griffin and Venable each separately purchased the land from R. A. Dean in good faith, for a valuable consideration, without any knowledge that a conveyance had been made to appellant, and that R. A. Dean had concealed and failed to disclose its existence before and at the time of the partition judgment. In this state a judicial partition necessarily involves, -and finally adjudicates the rights and interests of the parties to the land. Article 6115, R. S.; Gurley v. Hanrick, 139 S. W. 725. Therefore, though it be assumed as a fact that the partition judgment was entered on fraudulent facts of title practiced by R. A. Dean, yet in the absence, as here, of any knowledge on the part of Griffin and Venable of any fraud or vice entering into the partition judgment, and the partition judgment not being qb-tained in furtherance of a general scheme of fraud by them, such judgment of partition, through which their title to the specific property comes, would, as against the alleged secret fraud, be valid as to Griffin and Venable. McCown v. Foster, 33 Tex. 241; Freeman on Void Judicial Sales, § 41. The title under the partition judgment is, as held by the trial court, in the hands of innocent vendees, not rendered void by proof of the real facts. The court did not err in giving the instruction on the ground of fraud in favor of Griffin and Venable. And notwithstanding there may be presented an issue as to the alleged fraud of R. A. Dean practiced in obtaining the partition judgment, a recovery in the nature of damages against R. A. Dean for either the value of the land or the price he sold it for could not be predicated on the allegations of the petition, and in eonse^ quence the court did not err in not submitting it to the jury. The allegations in the petition expressly predicate a recovery of the land upon the ground that the title did not pass to Dean and the purchasers, because of fraud and knowledge thereof. If the allegations be true that the land was not legally lost to appellant, then appellant has not by his allegations made it appear directly or by intendment that the alleged wrongful conduct or fraud of R. A. Dean proximately caused the loss to appellant of his land to innocent purchasers so as to recover the value of the loss üjfs damages from R. A. Dean. And on the allegations as a whole, properly construed, there was no room to award compensation to appellant against R. A. Dean personally, for the petition affirmed, if the facts alleged be true, that appellant had not legally lost the land, and the title had not legally passed from appellant.

The appellant further relies upon the right to recover the land upon the further allegation that 'the partition judgment was void because of the want of any legal summons or notice to the defendant minors. That there was no service of process on the defendant, or that the service was not in substantial accordance' with prescribed terms of law, is, in general, good ground for setting aside a judgment. In a direct attack upon a judgment, as is the instant proceeding, it is admissible to the party to show by extrinsic evidence that one part of the record contradicts another part. Thus the recital in a judgment may be contradicted by producing the original summons and return. In this connection it was conclusively proven that at the time of the partition suit and the rendition of the judgment the appellant and the other defendant Deans were each minors residing with their mother in the state of Arkansas. And the said minors, it is shown, did' not make any appearance in the partition suit personally or by guardian, except through the guardian ad litem appointed by the court. There is testimony going to show that a citation was issued in the partition proceeding, and forwarded to Arkansas for personal service upon the minors, and the sworn return showed personal service upon each of the minor defendants. But there is evidence sufficient to support the finding, if made by the jury, that the return did not truly state the facts, and that the minors were not, in point of fact, served in person with citation. The service of citation upon minors is as indispensable in partition suits as in other judicial proceedings, and must be made in the same manner. Without service upon the minors, the judgment would be invalid, in a direct attack, as here, as to the parties to the judgment. But, under the decided cases, the rights acquired by bona fide purchasers for value through a judgment reciting service, as here, will not be disturbed, though tbe judgment be invalid. Carpenter v. Anderson, 33 Tex. Civ. App. 491, 77 S. W. 291; Williams v. Young, 41 Tex. Civ. App. 212, 90 S. W. 940. Under this ruling Venable was entitled to a verdict for tbe land, under tbe facts, as a matter of law, and tbe court did not err in directing a verdict as to bim. And as to Venable tbe judgment will be affirmed.

But tbe ruling above would not entirely, in view of special facts, be applicable to defendant Griffin in adjusting ,bis rights to tbe land purchased by bim. It appears that in tbe purchase of. the land from Dean by Griffin tbe recited cash consideration in tbe deed was in fact not cash, but was a credit on his purchase to tbe extent of tbe interest thought or believed to be coming to bis wife in this part of tbe land. And it can be concluded as a fact from tbe record that Griffin was buying in fact only tbe interest in tbe 63 acres above what was estimated to be bis wife’s interest therein. Upon tbe theory that appellant was the owner by deed of tbe entire tract, Mrs. Griffin would have no interest to sell or be paid for. And it would follow that Griffin, to tbe extent of tbe amount of his credit of $214.25, recited as cash, was in the attitude of not having paid it at all in fact, and was in tbe attitude of not purchasing in fact all of tbe 53 acres, but only tbe interest bis wife did not have therein. It is unnecessary to discuss tbe pro tanto rights accorded an innocent purchaser. It is sufficient, as against a peremptory instruction, that tbe issue was made of whether or not Griffin was a purchaser for value to tbe extent of $214.25. It is believed that in this respect, and for this reason, tbe judgment as to Griffin must be reversed. If it should be found under tbe issue of fact that appellant was tbe owner of tbe land by deed, and that there was no service upon bim in tbe partition judgment, then tbe pro tanto protection to be accorded Griffin is involved as a matter of determination and remedy. As appellant was entitled to have tbe jury pass upon such issues of fact as tbe pleading and evidence warranted, we cannot assume appellant’s rights as claimed by bim, and adjust Griffin’s rights in respect thereto. And it is only in tbe event it be found as a fact that appellant was tbe owner by deed, of the entire tract that Griffin could be disturbed in bis ownership of tbe land.

Appellant has argued other grounds, which we have considered; but tbe decision, we conclude, must rest upon tbe points herein discussed. It is further observed that any question concerning the rights of tbe holders of tbe notes not parties to tbe suit is not and cannot be here involved.

Tbe judgment is reversed, and tbe cause remanded, as to all defendants but J. W. Venable, and as to J. W. Venable tbe judgment is in all things affirmed.


author: CARD, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BOSHER.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.
    On Motion for Rehearing, April 8, 1914.)
    1. Master and Servant ■(§ 278) — Injuries to Servant — Negligence—Evidence—Sufficiency.
    In a personal injury action by the engineer of a passenger train who was hurt in a collision with a freight train, evidence held sufficient to establish the negligence of the defendant railroad company.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Master and Servant (§ 286) — Injuries to Servants — Actions—Instructions.
    A freight train was so long that it would not all go on a switch, and had to “saw by” for a passenger train to pass it. The passenger train ran on past the switch, but did not clear the lower end, and thus the rear of the freight could not be drawn onto the switch, and off the main line. Sold, that the failure of those in charge of the freight to give signals to protect the rear end in accordance with the company’s rules warranted a charge- on their negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    3. Appeal and Error (§ 1170) — Review-Harmless Error.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), prohibiting reversals for nonprejudicial errors, the failure of the charge, in a personal injury action by a servant, to define assumed risk must be disregarded, where it informed the jury that, if they found plaintiff guilty of certain things which constituted assumed risk, he could not recover.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    4. Trial (§ 194) — Injuries to Servant — Actions — Instructions-t-Contributory Negligence.
    In a personal injury' action by a servant, a charge, that, if plaintiff was guilty of negligence which directly contributed to his injuries, if any, this would not bar recovery, but would only go in diminution of damages, is in substantial accord with Rev. St. 1911, art. 6649, and is not on the weight of the evidence.
    '[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    5. Master and Servant (§ 217) — Injuries to Servant — Assumption of -Risk.
    , An employé does not assume a risk arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or, in the ordinary discharge of his own duty, must necessarily have acquired the knowledge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574H300; Dec. Dig. § 217.]
    6. Trial (§ 315) — Verdict—Excessiveness— Misconduct oe Jury.
    In a personal injury action by a railroad engineer who had been earning $125 a month prior to the accident, and was reduced practically to invalidism, so that he could not walk in a natural way, and had lost all sexual capacity and power of retaining urine,_ it did not show misconduct that some of the jurors thought he was entitled to $40,000 or $50,000 damages, although only $25,000 had been claimed; and so an award of $18,000, based on a compromise of the opinion of the jurors, was not the result of misconduct. , .
    [Ed. .Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. § 315.]
    7. New Trial (§ 157) — Motions—Hearing or Evidence.
    Under Rev. St. 1911, art 2021, providing that, where the ground of the motion for new trial is misconduct of the jury, the court shall hear evidence thereof, it is unnecessary for the court, in determining whether a verdict was the result of misconduct, to hear evidence^ where the facts alleged as misconduct did not constitute impropriety.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 314, 317,. 318; Dec. Dig. § 157.]
    On Motion for Rehearing.
    S. Master and Servant (§ 213) — Injuries to Servant — Assumption oe Risk.
    Where a railroad engineer upon signal proceeded with his train, without ascertaining that the track ahead was clear, his conduct, if he was bound to ascertain whether the train ahead had been moved so as to give him a clear track, amounted only to contributory negligence, and not assumption of risk, for assumed risk refers only to those risks of which the servant has knowledge, while contributory negligence refers only to the question whether the servant acted prudently in connection with a certain matter; and hence an instruction of assumption of risk is unnecessary.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. § 213.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by 6. H. Bosher against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and W. F. Ezell, all of San Antonio, for appellant. John Sehorn, of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARD, J.

Appellee, G. H. Bosher, sued appellant, Galveston, Harrisburg & San Antonio Railway Company, for damages, and alleged substantially that on or about November 19, 1911, he was an engineer drawing one of appellant’s trains; that at the station of Seguin the engine came in violent contact with the cars of a freight train which was on the main line of the railroad, from which collision he received the alleged serious and permanent injuries complained of; that the train he was drawing was a first-class passenger train, and was entitled to right of way on the main line over an inferior train 'like the' freight train; and that the agents and employes of defendant negligently failed to have said freight train off the main line. It is further alleged that the passenger train was under the control of the conductor in charge thereof, who was negligent in ordering and directing him to go ahead while the freight train was still on the main line; that the defendant’s employes in charge of the freight train were negligent in failing to warn plaintiff of the position of such freight train by haying a flagman sent, and by placing torpedoes and fusees on the track; that the engine was defective, and permitted steam to escape so as to prevent seeing ahead, and had a defective headlight, and was an unfit engine.

The answer contained a general demurrer, general denial, and special pleas: That the freight train reached Seguin first, going east, and, since it was a long train, and could not get in the switch on account of its length, it was necessary to “saw by” the passenger train, which means that the passenger train, being shorter, would run in on the main line till its rear cleared the east end of the switch, and then the freight would pull out on the main line behind the passenger train, thus leaving a clear track ahead for the passenger train; that the freight train was stopped while a part of it was still on the main line west of the station, and a brakeman on the freight was sent east down the main line to meet and flag the in-coming passenger train, and he met and flagged the passenger train east of the switch, got on the engine and told the engineer of the situation, and that it was necessary to “saw by” at the station; that plaintiff thereupon pulled his train up to the station, and stopped until the station work was done, but while so stopped the "rear end of the passenger train did not clear the east end of the switch, and that appellee did not notify the conductor of the situation, but called for the signal to go ahead, which he received, and that, with full knowledge of the situation and all the facts, he voluntarily and negligently went forward and ran into the rear of the freight train still on the main line before it cleared the switch, and himself produced the accident; that it was his duty not to move his train until he knew the track was clear.

Defendant below also pleaded assumed risk and contributory negligence, and that it was engaged in interstate commerce, and that the accident was not produced by the violation of any statutes of the United States. The jury awarded the appellee $18,000, and, from the judgment based thereon, this ap.peal is taken.

A long freight train of about 49 cars was on the west-passing track at Seguin, headed east. Brakeman Sowell went down east to the semaphore board, where the in-coming west-bound passenger train stopped in response to the semaphore signal which was against it. He got upon the engine and told appellee of the conditions, and that the freight train was partly on the main track, and that it would be necessary to “saw by.” Bosher asked him if he could go on to the regular station stop. Appellee then proceeded to the station, and stopped his engine at the water tank, which was the usual place to mate stops. The rear of the passenger train did not clear the east end of the switch, however ; but this appellee did not know. When the passenger train stopped, the freight train was put in motion, but, when it reached near' the east end of the switch, stopped because the track was obstructed by the rear end of the passenger train. There was evidence to the effect that it was so dark appellee could not see the freight train after the lighted engine had passed. So we-have the east end of the passenger train blocking the east end of the switch, and the rear of the freight train blocking the west end of the switch; the rear of each train being on the main line. It was about 10:40 at night, and appel-lee says it was very dark. Bosher swore: “But before I came to a stop the conductor of the freight train gave the engineer a signal, and he proceeded to pull out, and that was the last I saw of the train, because the water tank was between me already and his train; there was no possible chance of seeing them.” The train stayed at Seguin 15 to IS minutes. After the engine was watered and oiled, Bosher says he tapped the bell to get a signal, and, receiving a “high ball” from the conductor, pulled out. “When I got the order to proceed at Seguin, I judged that the main line was clear at that time, after getting the order to proceed; there was no other way for me to know that it was •blocked. I couldn’t see. I had seen the people pull out, and, as I say, from that time I didn’t see anything else; when I pulled out, I thought the road was clear.” *

Rule 99 of the company is as follows:

“(99) When a train stops or is delayed, under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When recalled, he may return to his train, first placing two torpedoes on the rail when the conditions require it. The front of the train must be protected in the same way, when necessary, by the fireman.”
“As to what are called ‘stop signals,’ as referred to here in rule 99, why, any signal— even a signal waived violently, a torpedo, one torpedo, or a red fusee, or any violent signal that is waived across the track, red lamps or red flags — is a stop signal.” He says he saw no stop signals as he went west either on main or side track. “A fusee is a red light, like a Roman candle, which is supposed to burn ten minutes in ease of danger or in case of stopping a train; there is an iron spike in the center, and when they are thrown they generally stick in the ground.” “When I got to the switch and left Seguin, I thought the freight train had passed me.” He says further: “That train was on the west-passing track at Seguin, north of me. I suppose that track is 100 yards or more from the main track, where I was.”

There was testimony explanatory of what the “high-ball” signal given by the conductor meant, which was to pull out, the track was clear; that, after- having been at- the station for 10 to 18 minutes, this “high ball” from the conductor meant to go ahead, the track was clear. The railway’s rule 85 provides that “a train must not start until the proper-signal is given,” and it was also in evidence that under the rules an engineer is forbidden to leave the station until he gets a signal for that purpose. Duval, the conductor, said, “When I gave the order to leave Seguin to Mr. Bosher, I supposed all freight trains would be out of the way;” and it was shown that nearly all railroading is done by orders and signals, and that the train is under the control of the conductor; he has full charge of the train. It was also shown that under the company’s rule 321 it is the duty of every conductor of every train at a telegraph station to report to the superintendent the arrival and departure of the train through the telegraph operator — the time he might leave. Duval did not ascertain if the freight was gone, and that the way was clear, but gave the signal to proceed upon the supposition that the freight train had cleared out for the passage of the superior passenger train of which he was in charge. Keating, the brakeman, knew the freight had not cleared. It was also Brakeman Sowell’s duty to have notified Duval, the conductor, of the conditions. In reference to the duty of the brakeman, the conductor said: “I say, in case a flagman had flagged against him, had flagged the engineer, it would be his (the brakeman’s) duty to come and notify the conductor too; they always do.” This -duty of the brakeman is also testified to by Banks. There were no signals given Bosher that the freight was still on the main line, and no torpedoes or fusees were placed between his engine and the freight cars extending on the main line ahead of him.

So, briefly stated, appellee’s train came into the station, the engineer knowing that the main line was then blocked at the end of the switch; but Bosher did not know that the rear of his train did not clear the east end of the switch, and while he came in the freight started forward. His train stopped at the station, and the business of the train was transacted; the engine taking water, and the conductor getting his orders. The night was dark, and Bosher. says his headlight had gone out, and he had tried to fix the headlight before that night because it was so dim, and that steam was escaping at the time so as to envelop the front, and he could not see ahead. The cause of the escaping steam, he says, was a defective cylinder cock or valve that had been battered and would not seat itself. He had taken charge of the engine at Glid-den, east of the place of the accident, and discovered the defects shortly thereafter on the-way. The conductor who had charge of the train ordered him by signal to pull out,.-which he did, and ran into, the freight train, injuring him seriously, as shown by different witnesses.

We think the evidence was sufficient to show negligence on the part of the appellant The conductor had charge of the train. It moved or stood at his command, and, either with or without knowledge on his part that the track was clear, he gave the signal to go ahead, which was tantamount to a command. If he did not know the track was clear, he should have known it. The fact that Bosher gave a bell for orders amounts to nothing more than telling the conductor he. was ready to proceed, and asking for instructions. When Duval gave that command to go ahead, he should have known that the way was clear.

We do not wish to be understood as holding that, where the facts of the danger were within the knowledge of Bosher, he would have been justified in proceeding; but the evidence is sufficient for the jury to conclude that he did not know of the danger at the time he got the go-ahead signal. He knew the freight train had been there; but he did not know it was there at the time he obeyed the signal. Pie saw the other engine pull up, and it was so dark he could not see the un-Iighted freight cars. He did not know the rear of his train, did not clear the switch. There were employés whose duty it was to look after those matters and inform the conductor. The train had been there several minutes, and the conductor had been to the operator and gotten his instructions. It was the brakeman’s duty to look after the rear end of the train, among other things, and to inform his superior, the conductor. With all these facilities for knowing and in the face of his duty to know that the track was clear, the conductor ordered him to proceed. There was ample testimony to show negligence on part of the conductor, and. to support the finding of the jury. The first assignment is overruled.

The second assignment complains that there was no evidence upon which to base a charge on negligence of the freight train crew, because it is claimed that the undisputed evidence shows that said crew sent out a flagman who did flag the passenger train and tell the engineer of the conditions, and that fusees and torpedoes were unnecessary. We do not view it in that light. Fusees and torpedoes might be said to have been unnecessary at the east end because of the actual warning by the brakeman, Sowell; but we are dealing wtih the other end of the switch, or the space between the passenger engine and the rear end of the freight train. Appellant’s argument assumes that the conditions existing at the time Sowell flagged the passenger train had continued. The fact of the matter is that Sowell told Bosher he would have to “saw by,” which presupposed a change of those conditions by the freight moving out of the way. And when it did not move out of the way, the appellee had a right to depend on being warned, as the rules of the company required should be done. There were no signals or warnings shown to have been given that the danger was still ahead of Bosher, and he says he could not see it, and did not know of it. It would have been the height of folly if he had gone on knowing the track was blocked, and, when he was ordered to go ahead, and could not see danger, we think the jury was warranted in finding that he was not negligent, but that negligence was shown on part of the freight crew in not keeping a warning that the track was still blocked.

Rule 99 of the railway requires certain duties and signals as hereinbefore set out. Appellant contends that this applies to the track in the rear of and in front of the freight train, but would not apply to the space on the main line in front of the passenger train, and between that point and where the rear of the freight projected onto the main line. But, as long as that freight remained on the main line, signals should have been given or some steps taken to keep the other crew advised of its continued presence. The second assignment is overruled.

By the third assignment of error complaint is made that the court erred in the first paragraph of the charge in failing to define assumed risk; but we do not think the charge, taken as a whole, is subject to this criticism. The charge tells the jury very plainly that, if they find plaintiff was guilty of certain things which of themselves would constitute assumed risk, he could not recover. There certainly could be no material difference between a charge defining assumed risk and one telling the jury that, if they found the elements of assumed risk to be chargeable to plaintiff, he could not recover. The court told the jury that, if plaintiff did those things which would constitute assumed risk, he could not recover. If it was error at all for the court to fail to define in terms what assumed risk is, it would not be sufficient to reverse the case, especially where the constituent elements are given, and the jury is told that, if it finds those things to be true, plaintiff cannot recover. Why say “assumed the risk”? Rule 62a for Courts of Civil Appeals (149 S. W. x).

We have examined assignments 4 to 9, inclusive, and, believing same to be without merit, they are overruled.

The tenth, eleventh, and twelfth assignments attack paragraph 5 of the court’s charge as being misleading, and as minimizing defendant’s defense, and as giving undue prominence to plaintiff’s cause of action. That part of the charge is:

“(5) You are further instructed that, if you believe from the evidence that plaintiff was guilty of contributory negligence which directly contributed to causing his injuries, if any, this would not bar a recovery in behalf of plaintiff, but could only go in diminution of the damages, if any, sustained by the plaintiff. Therefore, if you find from the evidence that the defendant or its servants were guilty of either or any of the acts of negligence submitted to you herein, and that such act or acts of negligence directly contributed to produce plaintiff’s injuries, if any, and that plaintiff did not assume the risk, then you are charged that it is your duty to return a verdict for the plaintiff; and if you further believe from the evidence that plaintiff was guilty of contributory negligence which directly contributed to cause his injuries, if any, the damages awarded him should be diminished in proportion to the amount of negligence attributable to plaintiff.”

This charge follows substantially article 6649, and we do not think it was on the weight’ of the evidence. Anyway it is not pointed out how any particular harm could, or did, result from the giving of same. These assignments will be overruled.

The thirteenth assignment is overruled.

An employs does not assume a risk “arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or, in the ordinary discharge of his own duty, must necessarily have acquired the knowledge.” M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508. See, also, S. A. & A. P. Ry. v. Wagner, 166 S. W. 24, decided by this court March 4th. Bosher had a right to assume, after he had pulled into the station, and had seen the other train pull up, that the danger either had passed, or that his superiors and other employés whose duty it was to know would inform him, if the danger had not passed. If he could have seen the train or knew of its presence at the time he started his engine, that would materially alter the case. But it was not only dark, but his headlight was out, steam was escaping, and no signals of the danger were maintained. The federal statute differs little from our own. The fourteenth assignment is not well taken, and the same view is taken as to the fifteenth, sixteenth^ and seventeenth.

The .eighteenth assignment is to the effect that the court erred in refusing to hear evidence as to the misconduct of the jury to show that they were prejudiced, and that some of them voted for $40,000 and $50,000 to induce others who were in favor of low verdicts to come up to $18,000, when the plaintiff’s attorney had only asked for $25,000. The injuries of appellee seem to have been well established. By reason of his injuries he was reduced from a strong man who was earning about $125 per month practically to invalidism; he cannot walk in a natural way, nor at all without artificial assistance, and his sexual powers seem to be destroyed. He suffers from incontinence of urine, and is a neurasthenic. All counsel proposed to prove by the jurors was that some had voted for a high verdict, and others for a low one, and that a compromise was made on $18,000. We are cited to article 2021 of the Revised Statutes of 1911, which provides that, “where the ground of the. motion is misconduct of the jury or of the officer in charge * * * the court shall hear evidence thereof.” The mere fact that jurors vote for different amounts, some high and some low, and then compromise on an intermediate amount, does not show misconduct; and, if appellant could have shown by the jurors all that was alleged, it would not amount to misconduct. The jurors had heard the evidence, and seen the injured man. We must assume that they were honest in their judgment until the contrary is alleged and proven. If some of them believed he was entitled to a higher amount than the attorney asked for, that would not justify the assumption that they were dishonest or prejudiced in the absence of a showing to that effect, and that the verdicts contended for Were not justified under the facts. If all the facts alleged were proven, and yet would not show misconduct, the court will correctly refuse to hear evidence. And we do not think the court erred in refusing to hear evidence in this case, when, if everything had been proven appellant contended for, it would not show such misconduct as to require a new trial; and the nineteenth and twentieth assignments will likewise be overruled. The twenty-first assignment, complaining that the verdict is excessive, is disposed of adversely to appellant by what we have said under the eighteenth assignment of error.

The remaining assignments of error, from twenty-second to thirty-third, both inclusive, have been carefully examined, and we do not find anything therein that would require a reversal.

The judgment is affirmed.

On Motion for Rehearing.

Appellant insists that the court erred in refusing and failing to give its specially requested charge No. 6, which is set -out in the fourteenth assignment, and is, caption omitted, as follows; “You are instructed that one entering the employment of a railway company who is at the time engaged in interstate commerce assumed all the risks ordinarily incident to the business in the manner in which it is conducted, of which hie has actual knowledge, or, in the ordinary discharge of his duty, must necessarily have acquired knowledge. Therefore, if you believe from the evidence that the plaintiff was notified by brakeman Sowell that the freight train did not clear the main line at the west end of the west-passing track, and if you further believe from the evidence that the plaintiff ran his engine into said cars at said point without knowing that the freight train had cleared the main line at the time and place he did, and if you further believe it was bis duty to bave known that said track was clear before proceeding past that point, then you are instructed that the plaintiff assumed all risk of running bis engine and train over the main line at said point without knowing that said track was clear; and in that event you will return a verdict in favor of the defendant.”

It is contended that it is a controverted issue as to whether it was the duty of appel-lee to know that the track was clear, and that, if such was his duty, and he ran his train into the other without first ascertaining if the danger had passed, he assumed the risk, and could not recover on account of the Employers’ Liability Act approved April 22, 1908.

“Assumed risk refers to a general course of action in connection with the master’s way of doing business and the appliances furnished; contributory negligence refers to the question as to whether .the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice; the latter is carelessness.”' El Paso & Southern Ry. Co. v. Foth, 101 Tex. page 137, 100 S. W. 173. There is no evidence that Bosher knew the way was still blocked at the time he pulled out with his train. The doctrine of assumed risk rests upon knowledge, because a risk cannot be assumed, unless the one assuming same has knowledge thereof. But we are told that there was evidence introduced strongly tending to show that it was appellee’s duty to know that the track was clear before proceeding with his train; to which we answer that, if such was his duty, and he did not perform it, he would be guilty, of contributory negligence. But he would *not be guilty of assuming the risk, unless he had knowledge of the presence of the train at the time he put his train in motion. There is no testimony that he had such knowledge, although he did know it had been there. “Assuming .the risk of an employment is one thing, and quite a different thing from incurring an injury through contributory negligence.” If appellant’s witnesses are correct that it was Bosher’s duty to know that the track was clear, and he did not perform that duty, he was guilty of contributory negligence. The court charged on that subject: “One having full knowledge of 'defects in machinery with which he is employed may yet use the utmost care to avert danger which they threaten. Assumption of the risk and contributory negligence approximate where danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom, but where the danger, though present' and appreciated, is one which many men are in the habit of assuming, and which prudent men' who must earn a living are willing to'-assume for extra compensation. One who assumes the risk cannot be said to be guilty of contributory' negligence, if, having in view the risk of danger he assumed, he uses care, reasonably commensurate with the risk, to avoid injurious consequences. One who does not use such care, and who by reason thereof suffers such injury, is guilty of contributory negligence.” Narramore v. Cleveland, etc., Ry. Co., 98 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68.

' So, if it was Bosher’s duty to know that the freight train had gone, and he did not so ascertain that fact, would he not then be guilty of contributory negligence? And if assumed risk rests on knowledge, and none is shown in this case, on part of appellee, as to the continued presence of the other train, we do not see that a charge on assumed risk as' to this phase of the case would be applicable. Assumed risk is a contract which may be expressed or implied; but contributory negligence is the breách of a legal duty imposed by law upon the servant.

Therefore, if appellant is correct that the evidence is conflicting as to the duty of Bosher to have known whether the track was clear at the time he put his train in motion, it would only have called for a charge on contributory negligence, which was given.

The motion is overruled.