author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ADAMS.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Carriers (§ 281) — Injuries to Passenger — Illness—Cabe Required.
    Where a passenger, after being received as such, to the knowledge of the carrier becomes unable to care for herself by reason-of sickness, insanity or other cause, it is the carrier’s duty to exercise the care of a very cautious and prudent person to protect the passenger from the dangers incident to her surroundings and mode of travel.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1093-1097, 1241; Dec. Dig. § 281.]
    2. Carriers (§ 303) — Injuries to Passengers — Mental Derangement.
    Where passenger became ill and mentally deranged en route, to the knowledge of the carrier’s servants in charge of the train, but there was nothing to indicate that she anticipated jumping from the train while in motion, as she subsequently did, resulting in the injuries complained of, the carrier was not guilty of actionable negligence in omitting to establish a guard over the passenger, or to forcibly restrain her.
    [Ed.' Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Pearl Adams against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    E. B. Perkins and D. Upthegrove, both of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. B. Q. Evans, of Greenville, and Ramsey & Odell, of Cleburne, for appellee.

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

   TALBOT, J.

This suit was originally instituted by W. G. Adams, as the father and next friend of appellee, and on a former appeal a judgment rendered in favor of appellant upon an instructed verdict was affirmed. Afterwards, on a motion for a rehearing, the ease was reversed and remanded, because we were of opinion that the trial court erred in refusing to permit the plaintiff to take a nonsuit. Adams v. St. Louis Southwestern Railway Co., 137 S. W. 437. Appellee having arrived at the age of majority before the second trial, the petition was amended, and the suit prosecuted in her own name. In this amended petition, the material allegations are as follows: “Plaintiff shows that she boarded the train at Birmingham, Ala., and became a passenger en route to Cleburne, Tex.; that while en route to Texas, and before reaching Tex-arkana, plaintiff became somewhat sick, and when she arrived at Texarkana was feeling bad and strange, and had a high fever, and barely remembered leaving Texarkana en route to Dallas and Cleburne; that after she left Texarkana she got in a condition that she did not know anything, became delirious, and thought that there were robbers on the train, and was incapable of taking care of herself, and was incapable of knowing the danger of getting on and off the train; that she was incapable of exercising any reason, but was delirious and crazy from sickness, and was liable at any time to fall, jump, or escape out of or from the train, all of which was well known to the defendant, its servants and agents in charge of and operating said passenger train. Plaintiff shows that she remained in that condition until she reached a point west of Greenville, before daylight on the morning of June 11, 1908, when and where she unconsciously, and without knowledge or knowing what she did, jumped out of the window of the ear, or otherwise escaped from the car at the door, vestibule, or other opening, while it was running at a high rate of speed, and received and sustained serious and permanent injuries. Plaintiff shows that when she left Greenville she was delirious, and attempted to and did leave the train, and was put back on the train by force, under the direction of the conductor in charge of the train, and was permitted to sit down by an open window, or one that could be readily opened, and that the agents and servants in charge of the train failed and neglected to take any precaution to prevent her from jumping out of said window, or to prevent her from escaping from the train through some other way or opening; that said agents and servants knew that she was in said condition of mind; that she would likely open a- window, or likely fall or jump out of the window, or otherwise escape from the train, and failed and neglected to take any precaution to restrain her or to guard her, or have her guarded, and prevent her from thus being injured, all of which was great negligence and carelessness on the part of the officers of said train, and that by reason of their negligence to restrain and to guard her, and by reason of having her placed by an open window, or left alone by a window she could and would likely open, was a direct cause of plaintiff’s injuries. Plaintiff shows that when the train reached a point somewhere between Clinton, a station on the defendant’s line, and the county line in Hunt county, she unconsciously jumped, fell, or escaped from said train as aforesaid, and was injured; that when she struck the ground she had no knowledge of what had happened, and she never knew that she had jumped from the train until she came to herself while in the St. Paul’s Sanitarium in Dallas.” The defendant pleaded a general demurrer and various special exceptions to plaintiff’s petition, a general denial, and specially that plaintiff’s cause of action was barred by the statute of limitation of two years. The second trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $4,500, and the defendant perfected an appeal to this court.

The'first assignment of error is, in effect, that the court erred in refusing to give to the jury a peremptory instruction to return a verdict for the defendant, as requested in defendant’s special charge No. 1, because the evidence was not sufficient to sustain a verdict for the plaintiff, in that the evidence fails to show any act or omission of negligence on the part of defendant or its em-ployés which would entitle the plaintiff to recover. In other words, the contention, in substance, is that there is no evidence in the record showing any negligence on the part of the defendant proximately resulting in the injuries suffered by plaintiff, the evidence being insufficient to show that defendant’s employes in charge of the train, from which plaintiff fell or jumped, had such knowledge of any demented, delirious, or unconscious state of mind on the part of plaintiff, from which they might have had any reason to foresee or anticipate that plaintiff would be injured as alleged, by jumping from a window of the train. The following is the material testimony upon which a determination of the question presented depends:

Appellee testified: “In the month of June, 1908, I left Birmingham coming to Tex., with my destination as Cleburne, Tex. * * * when I left Birmingham my health was good, and my health was good before I left home for that trip. My health continued good, only I was a little tired with my trip, until I reached Memphis. I got to Memphis the next morning, and went from there to Texarkana, where I first commenced feeling bad. When the conductor came around to take up the tickets after we left Tex-arkana, I was sitting like I was asleep, I did not know anything at all. During the day, from the time I left Memphis until I arrived at Texarkana, I was all right, and ■only that I was worried, I don’t know whether I had any fever that day or not. Up to the time the conductor came through the train to take up the tickets after we left Texarkana, I don’t reckon that I had had any fever. When the conductor came around there to take up the tickets, I was just sitting there out of my head, I suppose; I did not know a thing. I don’t know how I came to be out of my head. The conductor stood there and asked me for my ticket and I told him I did not know where it was, I thought I had lost it. Then the conductor walked to some of the other people on the train and asked them if they knew where I got on, and whether I had a ticket, and they told him that I had. I found my ticket pinned on the inside of my waist, and I took it out and took it to the conductor. When the conductor was talking to me I felt like I was in a dream. I had no idea what was the cause of it. I remember telling the conductor that night after we came out of Texarkana that there were robbers on the train, I thought that they were on the train, and I told the conductor so. I got up from the place where I was sitting, and moved to a different part of the car and I told the conductor that there were robbers on the train, and he told the other people on the train that they need not pay any attention to what I said, that they had been having trouble with me all along, and he said some other slang words, cussing words, I don’t remember the words he said. I told him that I was going to get off the train. That was somewnere between here and Texarkana. I don’t know hardly how I did feel at that time, I felt like somebody crazy, I reckon, foolish, like I was asleep. I know now that I was not in my right mind; it seems to me like a dream when I think about it. I have thought about it often since then. The next thing I was conscious of was when I got off the train at Greenville, I remember getting off the train here. I remember the conductor got off to register and I got by him when he got off the train. I remember that myself, I felt like I was in a dream, I remember being put back on the train, and I remember that I got off to get away from the robbers. I thought at that time that there were robbers on the train. I don’t know why I thought that, and I realize now that I was not in my proper mind while I was in Green-ville.”

On cross-examination plaintiff testified: “If I had any fever when I left Texarkana I don’t know it. * * * I did not get off the train while we were at Texarkana. When we left Texarkana I did not drop off to sleep for a little.while. I did after a while. It was before the conductor came through for the tickets that I went to sleep. The conductor came through before I went to sleep and asked me for my ticket, I told him that I had a ticket, but I could not find it, and then he went and asked the other passengers whether they knew me, and whether I had a ticket, and before he came to me again I found the ticket, found it pinned on the inside of my waist, and carried it to the conductor and went back to my seat. That was all that was said between me and the conductor at that time. When we got to Greenville, the conductor got off, and I got off, following him; he went into the depot to register. I don’t remember whether the conductor that took my ticket after we left Texarkana was the same one that got off to register at Greenville; I suppose it was. I remember now that after I told the conductor that there were robbers on the train that I got up and moved back m the middle of the car and sat down again. That part I did not remember at the other trial. My recollection about this came to me after I went back home; it seems ’ that everything is fresher to me than it was when I testified before. I may have testified before: ‘When the conductor came back and got the ticket, he was sitting down when I first noticed him. It was just before that I told him there were robbers on the train. The next thing I remember was getting back on the train after I got off at Greenville; I don’t remember getting off the train at Green-ville.’ I guess I did say that; I think I did. That is the way I remembered it then, but I do not remember it that way now. I remember getting off the train at Greenville now, and I remember the conductor going in the depot to register at Greenville. I remember going back to my seat after we left Greenville and getting my hat and purse that I left on the seat. I remember leaving my hat and purse on the seat at Greenville and going back to the same seat and finding them. I remember talking to the ladies and gentlemen at the time, the conductor came back, and I told him "about the robbers. On the other trial of this case, I said: ‘When I told the conductor there were robbers on the train, he said, “Why, you are mistaken,” or something like that. I remember what I said to him and what he said to me.’ That is not the way I think it is now; the way I remember it now is that I told him there were robbers on the train, and he told the other people that they had been having trouble with me, and for them not to pay any attention to me. I remember that now; it came to me after I got home and got to thinking about it. I do not know what made it come to me. When I testified, I testified that I said there were robbers on the train, and the conductor told me that I was mistaken. That was the way I remembered it at the time. Since that time I have talked to the parties I have mentioned, and to the family at home, and now I remember it that he did not’ talk to me, but that he talked to the other people, told them not to pay any attention to me. Now I remember getting off the train at Greenville and following the conductor to the station when he went in to register, and he told some one to put me back on the train; that I did not get off there. I remember that now; I do not know the party who assisted me, or whether it was a hack driver or not. I remember taking my seat and covering up my face, and I suppose I went to sleep; I guess I pulled my hat down on my face to keep the light out I was on the same seat that I had been sitting on before I left the train at Greenville, and the boy was sitting on the seat behind me. That is the way I left Greenville, and I do not remember anything after that; nothing at all. I do not remember how I got off the train; fell off, or how. I don’t remember whether I walked off the steps, or went out of the window or how I got off. * * * I rememebr writing on a tablet while I was on the train, writing about things that happened. I remember writing some on the tablet after the train left Texarkana.”

L. S. Miller testified: “I remember the circumstances of a young girl falling from the Cotton Belt train on the 11th day of June, 1908, near my residence. I was standing in the kitchen door drying my face, and I noticed something fall out of the train;' I did not know what it was at the time, and did not think much about it. * • * I rather think that this object, whatever it was, came out of the window. I will not say positively; it could have come out of the door. * * ⅜ I did not get right down to the railroad when the train backed back; I got within about 50 yards, or maybe closer, and they were putting her on the train, and I said, ‘What is the trouble?’ and they said, ‘A lady fell out;’ my best recollection is that a railroad man said'that — a man in the uniform.”

Canfell Looney testified: “I remember the circumstances of being down at the Cotton Belt Depot at Greenville, about the 11th of June, 1908, and seeing the young lady down there. I saw Mr. Yeager, the conductor, down there on that occasion. * * * jiggers is what I always called him. He works for the Cotton Belt, St. Louis Southwestern Railway Company of Texas. I was down there that morning to meet the train. Two or three got off, but did not want a hack, and me and Eowler turned around and started back to our hacks, and a girl got off the colored coach and came up by us, and we turned to see if she wanted a hack. She did not seem to pay us any attention, and we both asked her if she wanted a hack, and Jiggers says, ‘Transferman, put her back on the train; she does not want a hack; she goes through.’ I put her back on the platform and she went in. I don’t know what seat she taken. * * * She did not have on any hat or any covering for her head, and her hair was all stringing down over her shoulders. From the expression on her face and her actions at the time I saw her and her general conduct, she seemed not to know what she was doing. She did not answer any questions we asked her as to whether she wanted a hack; she did not answer any questions at all. When I first noticed her she was coming up behind us, right close to us. At the time Mr. Jiggers spoke to me he was going in the depot to register up. He made some other remark in addition to asking me to put her on the train; I can’t say what it was. He made some slight remark; I could not say what it was; it was with reference to the girl. * * * After the conductor made these remarks he went in the depot, and I got on my cab and did not pay any more attention to it. I do not know where she took her seat when she got on the train. I remember after that hearing that a young woman had fallen from tlie crain that morning.”

Leslie Cullom testified by deposition as follows : “I am 25 years of age and reside at Greenville, Tex. I am cashier for the Texas Bitulithic Company, Greenville, Tex. I was a passenger on the train of the Cotton Belt Railroad on the morning of June 11, 1908. I was en route from Birmingham, Ala., to Dallas, Tex. At the station in Birmingham I saw a young girl, whom I afterwards learned was Pearl Adams. The next time I saw her she was in the coach between Birmingham and Texarkana, sitting two seats in front of me. I did not see her get off the train, as I was looking some other way when the accident hapxiened. I don’t know whether she went out the window or the door. She appeared to me to be excited and excitable. Some time during the night after we left Memphis she frequently got up and walked up and down the aisles of the car, and several times she stated that there were robbers on the train. I did not pay much attention to the statements at the time, and they made but little impression upon me. I do not know what else she said at the time. If there was anything done for her by the conductor or officers in charge of the train prior to the accident I do not now remember it. I do not know whether the conductor and other officers of the train knew anything about the mental condition of the passenger inquired about. After we left Texarkana, Pearl Adams was sitting two seats in front of me and next to the window. I did not see her jump from the train. I had been observing her and had turned and was talking to some people across the aisle from me. There was a little boy sitting by me who, just a short time after I had ceased to observe Pearl Adams, called my attention, and said: ‘The little girl (referring to Pearl Adams), jumped out of the window!’ I pulled the bell cord, stopped the train, found the conductor, and the train was backed back about two miles. We found her lying beside the track, and we put her in the baggage car in an unconscious condition, and the train moved forward to Dallas. * ⅜ * I had no conversation with the conductor, brakeman, porter, or any other officer of the train or any one connected with the operation of the train, concerning Pearl Adams prior to the time she jumped from the train. I did not hear the conductor, brakeman, or officer of the train say anything to her during the trip, that I now remember.”

On cross-examination he said: “It is a fact that I had been riding in the same coach with Pearl Adams from Texarkana up to the time of said accident, but there were only a few passengers in said coach, consisting of men, women, and children. If she became sick en route to Texas, I do not know it. Her bodily and mental condition seemed to me to be normal. I did not see anything in her actions which caused me to believe, or I did not have any reason whatever to believe, that she might fall or jump off the train prior to the time of the accident. I was sitting two seats behind her. It is a fact that she was reclining in her seat with her hat over her face, apparently asleep and quiet just before I learned that she had fallen or jumped off the train, and there was nothing in her conduct or appearance that indicated that she might jump or fall off the train. It is a fact that during the time I was with her in the coach I did not see her do anything or hear her say anything that indicated that she was sick. I saw a man sitting^ with her prior to the accident. I do not know his name. Pie got off at Greenville. He appeared to be about 30 years old; weighed about 160 pounds; was about 5 feet 8 inches tall; dark hair and eyes. When the train stopped at Greenville, the young lady got up and walked to the end of the car in which she was riding. She afterwards returned to her seat and sat dpwn in the same place that she was sitting prior to the time the train stopped at Greenville. I do not know it to be a fact that neither the conductor, brakeman, porter, or any other employé of the company were with her at that time. At the time the young • lady was talking about robbers and the train’s going to be robbed, she did not appear to be demented, but did appear to be greatly excited. I did not see the young lady writing on a postal card, but after the accident I found a card, together with her diary that she was keeping. The card was addressed to Prof. Adams, I-Ianceville, Ala., and had written thereon, in substance, the following words: ‘Dear Papa: I will write you a card. I am on the train. Everything is all right, except an old woman said something that I did not like, which I hope will prove all O. K. [Signed] Pearl.’ It is a fact that I had seen her several times writing in her diary, or on a tablet of some kind, and she appeared to be keeping the notes of her trip. It is a fact that I observed an old lady with two daughters who occupied seats opposite this young lady, and I noticed this young lady talking to those people several times after leaving Texarkana. It is a fact that the time of and immediately before the accident that the conductor nor any other employé of the defendant was in the coach where this young lady was riding. I do not remember anything about whether the window was up or down prior to the accident, but it is now my impression that the window was up about 18 inches.”

W. J. McGee, a witness for plaintiff, on direct examination, testified: “I live at Mt. Pleasant, Tex. I remember about five years ago hearing of a young lady getting hurt near Greenville by jumping out of a window of a train. I was down at the depot at Mt. Pleasant the night that train came in, and the young lady ran out of the cars. I saw the young lady jump out of the car, and saw Mr. Yeager grab her and take her back on the ear. That was the train that was coming on to Greenville. She had only gjot a short distance from the car when he caught her; her hair was all down, and she looked sorter like a wild woman to me. That was only a day or two before I heard of the young lady getting hurt. To the best of my recollection this was in June, 190S. It was dark, in the night, when she got off the train and the conductor took her back. She was a small woman, not very large, and her hair was down all over her face.”

The evidence quoted presents the facts upon which appellee relies for a recovery very fully, and, in our opinion, falls short of showing liability on the part of appellant for the unfortunate accident which resulted in injury to appellee. The allegations of negligence, upon which the right of recovery is based, are, in substance, that ap-pellee, after leaving Texarkana, became delirious and crazy from sickness and thereby rendered incapable of taking care of herself; that as a consequence of this mental condition she unconsciously jumped out of the window of the car while it was running at a very high rate of speed, and received certain personal injuries; that the employés of appellant in charge of the train negligently failed to take any precaution to prevent her from jumping out of the car window or otherwise escaping from the car in which she was riding, or to in any way guard or restrain her, although they had knowledge of her condition. It is the duty of a common carrier to exercise for the safety of a passenger who, after being received as such, becomes, within its knowledge, by reason of sickness, insanity, or other cause, unable to care for himself all the care that a very cautious and prudent person would to protect him from the dangers incident to his surroundings and mode of travel (Railway Go. v. Adams, supra, and eases cited), and that the conductor in charge of the train from which appellee jumped on the occasion in question knew that she was suffering from some character of mental disturbance may be conceded, but that he, or any other member of the train crew, knew that her condition of mind was such that if not guarded and restrained she would probably injure herself by jumping from a rapidly moving train, and were therefore guilty of actionable negligence in not providing a nurse or an attendant to remain constantly with her and prevent such action, is not, in our opinion, affirmed and sustained by the evidence.

There is evidence that appellee left the train at Greenville after it stopped, but there is no evidence that she attempted, or by any act indicated that she' intended to do so while the train was in motion, until she suddenly leaped through the window. We think it may be safely said that although a passenger may be suffering with the delusion, as was appellee, that there-were robbers on the train, yet if there is nothing in her actions to indicate that she is dangerous or obnoxious to other passengérs, or liable to do violence to herself, a carrier cannot be held liable for a failure to restrain or guard such passenger. The undisputed evidence shows that just before the accident appellee was sitting quietly in her seat in a reclining position, apparently asleep, with her hat over her face, and that suddenly, unexpectedly, and without any warning she jumped through the car window. It is true appellee testified on the trial resulting in the judgment from which this appeal is prosecuted, which she did not do on the former trial, that she told the conductor she intended to get off the train, but she made no effort to do so, at that time or at any other time prior to the accident, while the train was running. She did leave the train at Greenville while it was standing still, but under the direction of the conductor was put back upon it, and, according to her own testimony, she consciously walked into the car in which she had been traveling and took the seat she had theretofore been occupying, where she remained quiet and apparently asleep until she jumped through the car window. The testimony, taken in as favorable a light for appellee as we would be warranted in construing it, fails, we believe, to show that appellant’s conductor should have anticipated that appellee would jump from-the rapidly moving train; and that his failure to establish a guard over her or to forcibly restrain her was negligence proximately resulting in her injury. If the alleged negligent omissions of the appellant to guard and protect appellee from injury were not the proximate cause of the accident and her injury, then actionable negligence has not been shown. Railway v. Bigham, 90 Tex. 223, 38 S. W. 162; Neely v. Railway Co., 96 Tex. 274, 72 S. W. 159. In Railway Co. v. Bigham, supra, it is held that, in order to constitute the proximate cause of an injury, the. injury must be the natural and probable result of the negligent act or omission, and that a party could not be held, responsible for' the consequences of an act or omission which ought not reasonably to have been foreseen; that “it ought not to be deemed negligent to do or to fail to do an act when it was not anticipated and should not have been anticipated that it would result in injury to any one; that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.” In 13 Cyc. p. 27, in discussing the subject of proximate and remote damages, it is said, among other things, that, “within the rule which limits a recovery for injury to these damages which are its natural and proximate effects, the natural effects are those which might reasonably be foreseen, those which occur in the ordinary state ■of things.” Under a proper application of these principles to the facts of this case we think it must be held, that the appellant’s employes could not reasonably have anticipated that appellee would' jump out of the ■car window, or through some other opening throw herself from the train, and that appellant is therefore not liable for the injuries she sustained. That appellee at the moment she jumped through the car window was unconscious of what she was doing is evident, but that she was rational and conscious of the nature of her acts and of what was taking place the greater part of the time she was on appellant’s train is manifest from her own and other uneontroverted testimony in the record; and, if her mental condition and conduct was so pronounced as to cause any one on the train to apprehend that she might, unless restrained, jump from the fast running train, it is not shown in the record. On the contrary, the witness Cullom, who ■traveled in the same coach with appellee from Alabama, said that he did not see anything in her actions which caused him to believe, .or which gave him any reason to believe, that she might fall or jump off the train, prior to the time of the accident; that when the train stopped at Greenville appel-lee got up and walked to the end of the car in which she was riding, and afterwards returned and sat down in the same seat she ■had previously occupied; that he, witness, was sitting two seats behind appellee, and that just before she jumped out of the window, which was after the train left Green-ville, she was quietly reclining in her seat with her hat over her face apparently asleep. 'Clearly, according to the undisputed evidence, after appellee returned to her seat at Greenville, there was absolutely nothing in her conduct or appearance which indicated that she would, as she did, suddenly and without any warning, jump from the train; and so unexpected and unlooked for was her action that it is highly probable that, had appellant established a guard over her, the accident could not have been avoided. The testimony of the witness, W. J. McGee, who did not testify on the first trial of this case, is uncorroborated by any other witness, and his answers to questions propounded to him on cross-examination disclose a state of facts, in connection with his appearance to give evidence in this case, that discredits his testimony, and shows that it should have been, and doubtless was, discarded and not considered by the jury in arriving at their verdict. If, however, the testimony of this witness was of any probative force, it would not affect or change the principle of law we think applicable in this case, and upon which our decision is predicated.

The view we take of the case renders a consideration of the other assignments of error unnecessary.

The case seems to have been fully developed, and, believing as we do that, according to the uncontroverted evidence, appellant could not have foreseen that appellee might jump from the train while it was in rapid motion, and that her injuries were not therefore the probable and proximate result of the negligence charged against appellant, the judgment of the court below is reversed, and judgment is here rendered for appellant.

Reversed and rendered.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    STEPHENVILLE, N. & S. T. RY. CO. v. SHELTON.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1914.
    Rehearing Denied Feb. 25, 1914.)
    Negligence (§ 101) — Contributory Negligence — Effect—Diminution of Recovery.
    In an action for an injury to a servant, contributory negligence is not an _ absolute defense but operates only as a diminution of the recovery.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; Dec. Dig. § 101.]
    Appeal from District Court, Hamilton 'County; J.'H. Arnold, Judge.
    Action by W. L. Shelton against the Ste-phenville, North & South Texas Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Marshall Ferguson, of Stephenville, for plaintiff in error. Langford & Chesley, of Hamilton, for defendant in error.

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

   KEY, C. J.

W. L. Shelton brought this suit against the Stephenville, North & South Texas Railway Company for damages resulting from personal injuries alleged to have been caused by the negligence of the defendant. Defendant pleaded a general denial and special plea of contributory negligence and assumed risk. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $1,000, and the defendant has prosecuted a writ of error.

No complaint is made in this court of the verdict of the jury, and we therefore assume that it is sustained by testimony. The assignments of error presented for our consideration are addressed to certain paragraphs of the court’s charge and to the refusal to give certain requested instructions. These assignments present no new questions of law, and therefore we deem it unnecessary to discuss them in this opinion further than to say that, in our judgment, the charge of the court presented the case to the jury with reasonable accuracy and with entire fairness to the defendant; and the requested instructions on the question of contributory negligence were fundamentally erroneous because they treated contributory negligence as an absolute defense, and ignored the fact that, on account of comparatively recent legislation, such negligence is not an absolute defense in this class of cases, but oper■ates only as a diminution of the amount •which otherwise might be recovered. The ■court’s charge on the subject of assumed risk rendered it unnecessary to give any further charge upon that subject.

No reversible error has been pointed out, and the judgment is affirmed.


author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. LINNEY.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.
    Rehearing Denied March 4, 1914.)
    1. Railroads (§ 307) — Crossing Accidents —Liability yob Injuries.
    At a crossing where the principal street of a town, constantly in use by the citizens thereof, was crossed by several tracks over which numerous trains passed at all hours of the day and night without any watchman to warn travelers of the approach of trains, a freight train was divided so as to leave an opening to pass through, and so as to obstruct travelers’ vision of any train on another track. Plaintiff drove through this opening and was struck by a train moving rapidly without any signal on another track. Held, that there was a clear case of negligence on the part of the railroad company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dee. Dig. § 307.]
    2. Railroads (§ 350) — Crossing Accidents —Acitons—Questions eor Jury.
    In an action for injuries to a person who drove through an opening in a freight train at a crossing and was struck by a train on another track, evidence held to make a question for the jury as to his freedom from negligence, even assuming that the burden was on him to disprove negligence.
    ’[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    3. Railroads (§ 350) — Crossing Accidents —Contributory Negligence.
    The failure to stop, look, and listen before crossing a railway track at a street crossing is not negligence as a matter of law, but is only a circumstance for the consideration of the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    4. Railroads (§ 334) — Crossing Accidents —Contributory Negligence.
    The failure of a person placed in a position of imminent danger at a railroad crossing where he had to act hastily, through the negligence of the company, to pursue the wisest course, was not negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1027; Dec. Dig. § 334.]
    5. Railroads (§ 346) — Crossing Accidents —Actions—Burden oe Proof.
    In an action for injuries in a crossing accident, where plaintiff’s evidence did not raise a suspicion of contributory negligence, the burden of proving such negligence was on defendant.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.]
    6. Railroads (§ 307) — Crossing Accidents —Liability for Injuries.
    The failure of a railroad company to have a watchman at a crossing on a city street constantly in use was no less negligence towards the inhabitants of the city because they knew of such failure.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.]
    7.Damages (§ 132) — Excessiveness—Per-sonal Injuries.
    Plaintiff, a healthy man 55 years old, earning from $2,500 to $3,000 a year, was struck by a railroad train and terribly hurt in the back, shoulders, legs, and head. There was evidence of bruises over his body, on the chest, right side, and back, extensive bruises over the lower part of the shoulder blade, down over the ribs to the kidneys, a wound on the scalp that penetrated to the bone, and two ribs on the right side torn from the breastbone, that he was treated by a physician for a month, during which time his temperature was at all times up to and in excess of 100 degrees, that he suffered with a cough which continued to the time of the trial, that he had repeated attacks of pleurisy with rise of temperature and nervous spells, that the sciatic nerve was injured so as to produce numbness in one leg and pain below the hip, and that a fractured rib had penetrated the pleura. By such injuries he was made a permanent invalid without earning power. Held, that the evidence supported a verdict for $14,000.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Yal Verde County; W. C. Douglas, Judge.
    Action by C. M. Linney against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, McDowell & Robertson and Boggess & Smith, all of Del Rio, and W. B. .Teagarden, of San Antonio, for appellant. Jones & Thurmond and J. Q. Henry, all of Del Rio, for appellee.

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

   FLY, C. J.

Appellee sued appellant to recover damages arising from personal injuries inflicted upon him through the negligence of appellant in backing a caboose into a buggy, in which he was riding, at a street crossing in Del Rio. Appellant pleaded contributory negligence. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $14,-000.

The evidence showed that appellant had several tracks north of its station in Del Rio; that a street, east of the depot, which was used more than any other in the town, was intersected by the tracks about 50 steps from the station; that appellant had a freight train on one of the tracks through which an opening had been left at the street; that appellee drove his horse into the opening between the cars at the street crossing, and, as he emerged from behind the cars and started to cross the track immediately north of the depot, a caboose was suddenly pushed upon him and serious and permanent bodily injuries inflicted. No bell was rung and no whistle sounded in approaching the crossing, and the train was making very little noise. The train was running at the rate of 12 miles or more an hour when it struck appellee.

The freight train was divided at the crossing, cars standing on each side, thereby inviting citizens of the town to enter upon and pass over the crossing, at the same time obscuring from vision any train moving on the track next to the station. It was a deathtrap set for any person who might wish to pass from north to south over a crossing which was the principal one used in traveling from the residence to the business portion of the town, as well as for persons traveling between Del Rio and a number of other towns. After dividing the freight train so as to remove any obstruction to people desiring to pass over the tracks, and leaving the cars where they would hide from view trains on the other track, a rapidly moving train was negligently propelled across the street without any warning or signal being given of its approach. Appel-lee was caught in the trap, and his buggy destroyed,, and his person injured so as to make him a cripple for life. Although this was a crossing constantly in use by the citizens of Del Rio and numerous trains were passing over' the tracks at all hours of the day and night, no watchman was kept at the crossing to warn persons desiring to cross the tracks of the approach of cars. The evidence makes out a clear case of negligence upon the part of appellant.

Appellee testified that he listened for any noise or signal of any kind, and, although he could not see the lower track on account of the cars of the freight train, he thought there was no danger, because the crossing was open and people were approaching the track from the other side in a buggy. He passed between the ears in a walk, and the first that he knew of the approaching train it was upon him. The case was one for a jury, and the evidence justified the verdict that appellee was not guilty of contributory negligence. This disposes of the first, third, fourth, fifth, and sixth assignments of error.

The second assignment of error complains of the failure to give a special charge which is not copied in the assignment or statement. It is probable, however, that the charge is the same special one complained of in the first assignment, which was a peremptory instruction to return a verdict in favor of appellant. This, for the reasons hereinbefore given, was properly refused by the court.

Special charge No. 3 was properly refused. It was directly upon the weight of the evidence and a flagrant invasion of the right of the jury to pass upon the facts in evidence. Whatever may be the rule in other states, it is not held in Texas that it is negligence as a matter of law for a person to attempt to cross a railway track at a street crossing, 'without stopping, looking, and listening. Such failure to stop, look, and listen is a circumstance to be considered by the jury in arriving at a conclusion as to whether the plaintiff has been guilty of contributory negligence. Railroad v. Neff, 87 Tex. 303, 28 S. W. 283; Railway v. Rogers, 91 Tex. 52, 40 S. W. 956; Railway v. Bush, 12 Tex. Civ. App. 291, 34 S. W. 133; Hammon v. Railway, 13 Tex. Civ. App. 633, 35 S. W. 872; Railway v. Tinon, 117 S. W. 936; Railway v. Harris, 22 Tex. Civ. App. 16, 53 S. W. 599.

If appellant by its negligence placed appellee in a position of imminent danger where he had to act hastily, he cannot be held guilty of contributory negligence if he did not pursue the wisest course under the circumstances created by appellant. Railway v. Neff, herein cited; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

The charge of the court presented the issue of contributory negligence clearly and fully to the jury. The law was applied to every phase of contributory negligence justified by the facts.

The burden of showing that appellee was guilty of contributory negligence rested on appellant. Appellee was on a street crossing where he had the right to be, and where he had been induced to go by the train being divided so as to permit an entry upon the tracks. While in the street, without warning and in disregard of his rights, he was run down and injured. The suspicion of contributory negligence was not raised by the case made out by the evidence of ap-pellee, and the burden of proving such negligence rested upon appellant. The evidence showed that appellee exercised the care for his safety that any ordinarily prudent man would use under like circumstances, and he met all demands of the law even if the burden rested on him of showing that he was not guilty of contributory negligence. The court devolved on appellee the burden of showing that he used “ordinary care and caution to ascertain whether any cars were approaching,” and used “ordinary care and caution to avoid injury to himself,” which was as onerous as the law and the facts permitted.

We cannot sustain the tenth assignment, which enunciates the doctrine that the negligence of appellant, in not having a watchman at a crossing in a city, on a street constantly in use, is not negligence towards the inhabitants of the city, because they know of the continued negligence. Such continued negligence did not license appellant to run down any one endeavoring to cross the railway tracks. To uphold such a proposition would place it in the power of railway companies to escape the consequences of any kind of negligence simply by being negligent all the time. Negligence cannot be sanctified and transformed into a virtue by constant repetition, and will not, on that ground, be made a protection against punishment.

The eleventh assignment of error is hypercritical, and without merit.

The jury have seen proper to credit the testimony of the physicians and other witnesses offered by appellee, and tbeir testimony is amply sufficient to show injuries which justify the amount of the verdict. Ap-pellee testified that he was terribly hurt in the back, shoulders, legs, and head, and that he is a constant sufferer. He was earning at the time of the accident.from $2,500 to 3,000 a year. His physician swore that he treated appellee, that he found bruises over his body, on the chest, right side, and back, extensive bruise over lower part of shoulder blade down over the ribs to the kidneys, a wound on the scalp that penetrated to the bone, and two ribs on the right side torn from the breastbone. He treated appellee for a month, that he had a temperature all the time up to and in excess of 100 degrees and suffered with a cough, that his condition was the same at time of trial, that he had repeated attacks of pleurisy with rise of temperature, that he had nervous spells, that the sciatic nerve was injured so as to produce numbness in one leg and pain below the hip. The doctor testified that it was his opinion that a fractured rib penetrated the pleura. Of course, the testimony of appellee’s physician was not sustained by the physicians, who were em-ploySs of appellant, but the jury passed on the weight of the evidence. Appellee was, prior to his injuries, a healthy man, 55 years of age, earning the amount hereinbefore named, but is now an invalid without earning power and the latter condition is permanent.

The judgment is affirmed.


author: HIGGINS, J.

text:
    TIMES PUB. CO. v. ROOD.

    (Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1914.
    Rehearing Denied March 5, 1914.)
    1. Appeal and Error (§ 1001) — Review— Conclusiveness op Findings.
    The finding of the jury that the contract was breached, with evidence to support it, is conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    2. Appeal and Error (§ 730) — Assignments op Error— Sufficiency oe Proposition.
    Under rule 30 for Courts of Civil Appeals (142 S. W. xiii), an assignment submitted as a proposition, to the effect that the court erred in giving a special charge requested, therewith set out, was insufficient for failure to disclose the reason why the charge was erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.]
    3. Damages (§ 68) — Breach oe Contract-Interest.
    In a publisher’s action for an amount due on a contract, with a cross-action alleging breach, and, claiming in reconvention for damages and interest thereon, defendant was entitled to interest from the date of the breach, though the court, in submitting the measure of damages, made no mention of interest.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 141-143; Dec. Dig. § 68.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by the Times Publishing Company against Elmer S. Rood, with cross-action and claim in reconvention for damages. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Coldwell & Sweeney, of El Paso, for appellant. Patterson, Wallace & Gardner, of El Paso, for appellee.

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

       Writ of error pending in Supreme Court

   HIGGINS, J.

On December 9, 1908, the Times Publishing Company granted for a period of two years to Elmer S. Rood the exclusive privilege of circulating and distributing the El Paso Morning Times, a daily newspaper, in El Paso and vicinity, agreeing to furnish such copies as he might order each day, charging one cent each for same. The company was to further furnish each day, free of charge, a number of copies of the paper, equal to 5 per cent, of the number of copies charged to him. Payment for the paper was to be made on the 10th of each month, and it was provided that failure to pay for papers ordered, or to otherwise fulfill the conditions of the contract, would be sufficient to abrogate the same at the pleasure of the company.

This suit was brought by the company to recover the sum of $2,034.0S, a balance alleged to be due by Rood for papers furnished under the contract. By cross-action Rood alleged a breach of the contract by appellant on February 26, 1910, and in reconvention sought recovery of damages alleged to have been sustained by him by reason of such breach, and also for certain other sums alleged to be due under the contract. Upon trial, verdict was returned, and judgment rendered in favor of Rood in the sum of $1,-500, and the company has prosecuted this appeal therefrom.

Under the first assignment it is contended the overwhelming weight and preponderance of the evidence shows that the contract was not breached as by appellee alleged, but that by mutual consent the same was abrogated, and this court is asked to reverse the judgment because of the insufficiency of the evidence to support same in the particular noted. Whether or not it was so abrogated was a question of fact for the determination of the jury. The issue was resolved against appellants, and the testimony of appellee supports their finding. The assignment must therefore be overruled.

The second and third assignments relate, also, to the sufficiency of the evidence, and are likewise without merit, as the finding of the jury is not without evidence to support it The Constitution and laws of this state have intrusted the decision of questions of fact to juries trying causes, and it is not within the province of the appellate courts to disregard or lightly set aside their findings. The evidence here is not such as to authorize this court to overturn the verdict.

The fourth assignment, submitted as a proposition, reads: “The court erred in giving special charge No. 2, asked by defendant, which is as follows: ‘At the request of defendant you are instructed that, in arriving at whether or not defendant was indebted to plaintiff on the 26th day of February, 3910, you will take into consideration the amount of money paid by defendant for cards, stationery, etc., as well as such sum if any, as defendant may have paid plaintiff after July, 1909, on the 5 per cent, cut back, as that issue, if any, has 'been submitted to you in the main charge.’ ”

As a proposition it is insufficient. Railway Co. v. Nelson, 139 S. W. 81. It does not disclose the point or reason why it is contended the giving of the special charge was error. Rule 30 (142 S. W. xiii). We are left to conjecture and surmise to determine such reason. Because unsupported by proposition as required by the rules, the assignment is not considered.

The verdict in the case was returned on February 26, 1913, and was in the sum of $1,500. Judgment for that amount was rendered, with interest from February 27, 1910, upon theory that interest should be allowed from date the contract was breached by appellant. The petition prayed for recovery of interest. The court in its charge made no mention of interest in laying down the measure of damage. The undisputed facts disclose that the items of Rood’s damage had accrued on and prior to February 26, 1910. It is contended that the court had no authority to allow interest from date' last mentioned, as the jury in its verdict had not allowed same. The charge of the court was faulty in not instructing the jury to allow interest from February 26, 1910. The jury having found that Rood was entitled to recover the sum of $1,500 on account of the various items set up in reconvention, he was likewise entitled, as a matter of law, to recover interest thereon from the date of injury, to the end that he might be fully compensated. The date of his injury was not in controversy, and, in allowing interest from the date mentioned, the court only allowed that to which he was indisputably entitled.

The verdict of the jury and uncontroverted facts rendered proper the allowance of this interest, as a matter of law. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Barron v. Bank, 138 S. W. 142; Mallory v. Bahn, etc., 154 S. W. 282; Railway Co. v. Jackson, 62 Tex. 209; Steger v. Barrett, 124 S. W. 175; Railway Co. v. West, 149 S. W. 206.

Affirmed.

Chief Justice HARPER did not sit in this case.


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. WALKER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Release .(§ 12) — Consideration—Notes.
    Where notes, and not their payment, were accepted as part of the consideration for the release of a cause of action, the release could not be set aside on the ground that the notes-were not paid.
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 18-20; Dec. Dig. § 12.]
    2. Release (§ 17) — Impeaching or Setting Aside — Fkaud.
    Where an agent of a railroad company fraudulently induced a person injured by falling into a subway'to settle his claim by taking, the notes of the contractor, representing that the contractor was the one liable and solvent, such release could not be set aside, there being no fraud upon the part of the contractor, and hence it extinguished the cause of action, and the remedy of plaintiff was against the railroad company for the fraud.
    [Ed. Note. — For other eases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.]
    3. Release (§ 24) — Estoppel—Feattd—De-lay in Rescinding.
    Where one injured through the negligence of another was induced hy fraudulent representations to release the other from liability, his delay after discovering the fraud does not es-top him from rescinding the release, and bringing an action for the injuries.
    [Ed. Note. — For other eases, see Release, Cent. Dig. §§ 41-46; Dec. Dig. § 24.]
    4. Street Railroads (§ 28) — Rights in Streets — Public Improvements.
    Where a city granted to a railway company certain permits upon condition that, if accepted, it would construct subways, the construction of such subways was not a purely public improvement in the sense that it did not inure to the benefit of the railway company.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 63-OS; Dec. Dig. § 28.]
    5. Appeal and Error (§ 171) — Review.
    Where a case was tried upon two theories —one upon an original cause of action for an injury, seeking a rescission of a release, and the other for damages for fraud — and the case was submitted to the jury, and judgment rendered on the original cause of action, the judgment could not be sustained on appeal on the theory of fraud which was not submitted to-the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig.* § 171.]
    6. Appeal and Error (§ 742) — Assignment op Error — Proposition Accompanying Assignment.
    Where assignment of error complaining of the refusal to give instructions was submitted-as a proposition within itself, and for evidence a reference was made to statements under other assignments, it would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. DÍg. § 742.].
    Appeal from District Court, Bexar County;- R. B. Minor, Judge.
    Action by John T. Walker and others-against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden, of San Antonio, and W. P. Ezell, of San Antonio, for appellant. A. G. McNeill, of San Antonio, H. I. Myers, of Palestine, and Webb & Goetb, of San Antonio, for appellees.

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

   MOURSUND, J.

Appellee sued appellant, alleging that he suffered damages in the amount of $50,000 on account of injuries sustained by him, caused by his falling into a subway being erected by appellant on Nolan street in the city of San Antonio, attributing his fall to the negligence of appellant, and those constructing the subway for it, in failing to place a railing on top of the walls of said subway, or lights or other means of warning at said place at night; the facts relied upon to show negligence, as well as the injuries sustained, being fully set out. • It was then further alleged that within a few hours after plaintiff was injured he was visited by agents of defendant authorized to settle claims against it, who advised him that he need not hurry to take any steps towards recovering compensation for his injuries, as he would be properly provided for, and that said agents paid him frequent visits, and voluntarily promised on behalf of defendant to protect him in the matter of damages, and persuaded him to rely upon them in said matter, which he did; that they represented to him, he being ignorant of his rights in the matter, as they knew, that W. S. Hipp, who was constructing the subway for defendant, was the only person liable to plaintiff for his injuries, and that they would induce him to promptly and adequately compensate plaintiff for all- of his injuries; that, although plaintiff insisted that defendant was liable to him for such injuries, they wrongfully and fraudulently represented to him, and induced him to believe, that this was not true, and persuaded him to go with one of them to Houston, Tex., where they wrongfully and fraudulently brought about a pretended settlement of plaintiff’s claims against defendant and said Hipp, by the terms of which plaintiff was to receive $3,000; that plaintiff was not acquainted with Hipp, and said agents wrongfully and fraudulently represented to plaintiff that Hipp was a wealthy man, fully solvent, when in fact he was insolvent and heavily in debt, as they knew, or, if they did not have such knowledge, they wrongfully and fraudulently represented to plaintiff that they did, and induced plaintiff, who believed and relied upon their said representations, to accept in part payment of said sum of $3,000 ten promissory notes of said Hipp for $200 each,- the first due 60 days from date, and one thereafter at the end of each 60 days; that, as a result of said wrongful and fraudulent acts and representations, he was induced to sign a release of defendant and Hipp, purporting to protect them against all claims-which plaintiff held against them by virtue of said injuries, and that said representations were made for the very purpose of obtaining said release,' and relieving defendant, a solvent corporation, from further liability; that the first note was paid, but Hipp failed and refused to pay any of the others; that plaintiff, upon the failure of Hipp to pay the second note, made inquiry and since October 1, 1909,. discovered that Hipp was insolvent, and had been insolvent and heavily in debt at the time he executed-the notes, and that the representations made-by defendant’s agents were false and" fraudulent as before set out; that, as the-result of said wrongful and fraudulent acts and representations of said agents, which he-believed and relied upon, plaintiff was prevented from filing suit against defendant to-recover damages for his injuries until more-than two years after he received such injuries; that he expended the money received from Hipp in payment of expenses incident to the treatment of his injuries before discovery of the fraud perpetrated upon him, and has no money to make tender of the amount to Hipp, should Hipp be entitled thereto; that Hipp and defendant have, since October 1, 1909, repudiated the settlement, and refused payment of the amount due him by virtue thereof; that, on account of such repudiation and failure to pay, and the fraud and wrong practiced upon plaintiff, the release made by him is void. Plaintiff’s prayer was for damages upon his original cause of action, and in the alternative, if the settlement should be held binding, then for "the balance due him under the settlement, and, should he not be entitled thereto, then that he recover, on account of said fraudulent representations, the difference between the amount he was entitled to receive by reason of said injuries and the amount actually received under the terms of the settlement.

By supplemental petition filed November 15, 1911, plaintiff alleged his willingness to have allowance made of the money paid him by Hipp, as a credit upon the sum due him on account of the negligence and fraudulent acts and omissions set out in his petition, and tendered the remaining nine notes made-by Hipp.

Defendant answered by general demurrer, 12 special exceptions, a general denial, and pleaded: The ordinance requiring the construction of the subway; the contract for its construction; that the subway was in an unfinished state, and the conditions of which plaintiff complained were a necessary incident in the course of the proper carrying out of the wurk; that lighted lanterns and barriers were properly placed, and all practical means taken to guard against the danger produced by said conditions; that during such construction the street was necessarily closed to the public and to public travel; that the said conditions and the dangers incident thereto were open and obvious; that plaintiff was intoxicated; that be negligently approached and went to where he fell by an untraveled way, ignoring the disturbed conditions of the street and the warning given by means of the lanterns and barriers, and stepped upon the wall, and into the subway, and thus was guilty of negligence, and in view of the conditions he assumed the risk; that' Hipp was an independent contractor, for whose acts or negligence defendant was not responsible. The defendant also pleaded the statute • of limitations of two years, the execution of the release by plaintiff, denied the false representations concerning the settlement and release plea.ded by plaintiff, and averred that the facts relating to liability of defendant on plaintiff’s original cause of action, and the facts relating to the solvency of Hipp and the other matters alleged by plaintiff in avoidance of the release, were known to him, or would have been discovered by him by the use of due care and diligence on his part within less than 30 days after making the settlement; that defendant thereafter, without notice of the misrepresentations alleged by plaintiff, settled with Hipp, ■and plaintiff never repudiated the settlement made by him, or notified defendant that he disavowed the same, until the filing of this suit; that by reason of such delay in disavowing the settlement and release, defendant has been deprived of material evidence in defense of plaintiff’s action for damages, and on account of his delay and laches plaintiff is estopped from maintaining suit upon the original cause of action, or to set aside the release and settlement. Defendant also pleaded that plaintiff appropriated $1,200 paid by Hipp, and had never repaid or offered to repay the same, and by reason of such fact, and of his knowledge of the facts pleaded by him in avoidance of the release, his delay, and laches, he had ratified the settlement, and was estopped from setting the same aside. Defendant incorporated in its answer an action over against Hipp and the Fidelity & Deposit Company of Maryland, setting up the contract between defendant and Hipp, whereby Hipp was to indemnify and save harmless the defendant against all claims and suits for damages growing out of the construction of the subway, Hipp’s bond to defendant to secure his performance of the contract, upon which said Fidelity & Deposit Company was surety, and asked judgment against them for any judgment plaintiff might recover against defendant.

Plaintiff, by trial amendment, alleged that he did not discover the fraud used by defendant’s agents until about August 13, 1911, and as soon thereafter as practical filed this suit; that he thoroughly relied upon said fraudulent representations, and in the exercise of proper care did not discover the falsity thereof until just prior to filing suit.

The Fidelity & Deposit Company of Maryland answered, asserting that the release was obtained, without its knowledge or consent, by Hipp and the railway company acting together; that the agreement of settlement made by them with plaintiff changed the obligations of its bond; that, if any ground existed for setting aside the release,' it was only because of the alleged fraud and misrepresentations of the railway company, and therefore the railway company was not in any event entitled to recover over against it. In answer to this plea, the railway company pleaded that the settlement was made by Hipp, the principal of the deposit compans'’, and. asserted that the obligation and bond was not performed and discharged until it was released of all liability on the cause of action sued on by plaintiff.

A verdict was returned in favor of plaintiff against defendant railway company for $1,800, and against the railway company upon its action over against Hipp and the deposit company; the latter portion of the verdict being pursuant to a peremptory instruction by the court. Judgment was rendered in accordance with the verdict, from which the railway company has appealed.

The first 11 assignments of error are based upon the refusal of the court to give special charge No. 2, requested by the railway company, to the effect that plaintiff could not recover upon his original cause of action.

Negotiations between appellee and Hipp, the contractor, resulted in an agreement (which, in deference to the verdict of the jury, we find was only a tentative one) that appellee would accept, in full and complete satisfaction of his claim for damages because of his injuries, the sum of $1,000 in cash and ‘Hipp’s ten notes for $200 each. On the following day this agreement was made final, the money and notes delivered to appellee, ■and a release made by him of all claims against both Hipp and the railway company, which release recites that the consideration so received by Hipp was paid and accepted, “not only for time and wages lost, and expenses incurred, but also in full and final settlement of all claims of every nature” due appellee because of his fall into the subway. This accord and satisfaction being based upon the giving of the notes, and said notes, and not their payment, being accepted as a portion of the consideration paid in making the settlement, the release ‘could not be set aside on the ground that the notes were not paid. Railway v. Harriett, 80 Tex. 73, 15 S. W. 556; Railway v. Wood, 29 S. W. 411; Wettermark v. Burton, 30 Tex. Civ. App. 509, 70 S. W. 1029. But the evidence is sufficient to support the finding that this accord and satisfaction would not have been consummated, nor the release executed, had it not been that the agent of the railway company represented to appel-lee that Hipp was a man of means and backing, had large business interests, and that said agent knew him to be responsible, and to have money behind him and big work, and to be good. Hipp, in fact, was .insolvent at tbe time. It was not necessary for such agent to know that his representations were false in order to create liability for the injury suffered because of such representations. Magill v. Coffman, 129 S. W. 1146; Gibbens v. Bourland, 145 S. W. 274; Wells v. Driskell, 149 S. W. 205; Texas Central Railway Company v. Neill, 159 S. W. 1180. It follows that, if both the railway company and Hipp had engaged in the use of the fraudulent representations complained of, the accord and satisfaction could be annulled, and the release set aside. But Hipp had nothing to do with such representations. The railway company’s agent did not represent 1-Iipp, or assume to represent him, in the matter, so it cannot even be said that Hipp profited by the fraud, though unauthorized, of his agent, or a person assuming to be his agent. Railway v. Huyett, 99 Tex. 630, 92 S. W. 455, 5 L. R. A. (N. S.) 669. It is not even contended that Hipp had any knowledge of the making of such representations by the railway company’s agent. Railway v. Huyett, 49 Tex. Civ. App. 395, 108 S. W. 502; Railway v. Bright, 156 S. W. 310. The fraud of the railway company’s agent, therefore, cannot be invoked to set aside the release as to Hipp. Nor can such release be set aside as to him because he did not pay his notes. Moore v. Cross, 87 Tex. 557, 29 S. W. 1051; Railway v. Cade, 93 S. W. 124; Carter v. Ware Commission Company, 46 Tex. Civ. App. 7, 101 S. W. 525.

It was not alleged nor do the facts show any intent on the part of Hipp at the time he gave the notes not to pay same. In fact he paid the first note. That as to Hipp the accord and satisfaction, and release evidencing the same, is binding is admitted by appellee, and Hipp was not ma'de a party to the suit by appellee, and, after appellant filed its cross-action against 1-Iipp, appellee still failed to allege any wrongdoing on,the part of Hipp, or ask any 'relief against him. The payment of damages by one joint tort-feasor, without any reservation as to the other joint tort-feasor, settles the claim for damages, and relieves both of further liability. Blake v. K. C. S. Ry. Co., 38 Tex. Civ. App. 337, 85 S. W. 430; Robertson v. Trammell, 37 Tex. Civ. App. 53, 83 S. W. 258; St. Louis, I. M. & S. Ry. v. Bass, 140 S. W. 860.

The release executed by appellee is not merely a contract not to sue 1-Iipp. Robertson v. Trammell, 98 Tex. 364, 83 S. W. 1098; Musolf v. Electric Company, 108 Minn. 369, 122 N. W. 499, 24 L. R. A. (N. S.) 451; Matheson v. O’Kane, 211 Mass. 91, 97 N. E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267. Nor does the language imply that the consideration for same was received only in partial satisfaction of the damages. Kropidlowski v. Pfister & Vogel Leather Company, 149 Wis. 421, 135 N. W. 839, 39 L. R. A. (N. S.) 509. Nor is it contended that the true agreement was that the right- to sue the railway company was reserved, and such reservation should have been written into the release. Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, 19 L. R. A. (N. S.) 618. When by means of fraud a release has been executed which is a complete release of all joint tort-feasors, when in fact the agreement made by the parties was that only a portion of them should be released, and the right to sue the others retained, in a suit upon the original cause of action against those who were not to be released, the release given may be defeated and set aside as to those who were not to be included therein. Western Union Tel. Co. v. Walck, 161 S. W. 902. The effect of setting aside such release as to those against whom the right to sue on the original cause of action was retained by the terms of the agreement made is simply to reform the release so as to make it speak the true agreement of the parties, which was that the right to sue some of the parties was expressly retained.

But in this case we are confronted with a serious question, and that is whether, because of the fraud of the railway company’s agent inducing the execution of the release, suit can be brought against said company upon the original cause of action. To permit this, we must not only change the release so as to eliminate the railway company’s name, but, in addition, must insert therein an express reservation of the right to sue the railway company, or change the wording so as to make it evidence only a covenant not to sue Hipp or a partial satisfaction of the damages suffered, instead of a complete and unconditional satisfaction and accord. If the release can be so changed, it can be left in force as to Hipp, and still a suit be maintained against the railway company upon the original cause of action. But there is no contention that to make such changes in the release would be to express the true agreement between Hipp and appel-lee ; on the contrary, it is admitted that the agreement as written expresses the contract made between Hipp and appellee, and that same remains in full force and effect as between appellee and Hipp, but it is contended that, because of fraud inducing such release, the railway can be sued upon the original cause of action despite the existence of the release. We have found no precedent on this question; but, after the most serious consideration, we conclude that plaintiff cannot sue the railway company upon the original cause of action, that, as there has been a full and complete accord and satisfaction between Hipp and plaintiff, which remains in full force and effect, without the reservation of the right to sue the railway company, plaintiff’s cause of action for his injuries has been extinguished, and his remedy is only for the damages suffered by him by reason of the fraud of the railway company. There can be but one satisfaction of a cause of action, and when that is had the canse of action is extinguished". For the reasons stated, the court erred in refusing to give special charge No. 2.

There is no merit in the contention that said charge should have also been given because of laches of plaintiff in bringing his suit, or on the ground that such suit was barred by the statutes of limitation. Railway v. Cade, 93 S. W. 126; T. & P. Ry. Co. v. Jowers, 110 S. W. 948; Port Arthur Rice Milling Company v. Beaumont Rice Mills, 105 Tex. 514, 143 S. W. 926, 148 S. W. 283, 150 S. W. 884, 152 S. W. 629.

It is further contended that said charge should have been given because Hipp was an independent contractor, and the acts alleged to constitute negligence were done solely by Hipp and his employés; that, as the subway was a necessary public improvement, and was being constructed pursuant to an ordinance of the city, which had complete control over the street, and power to interfere with public travel for the purpose of making such improvement, the railway company was exempt from liability for the acts of its independent contractor. It appears that certain “permits” were granted appellant by the city upon the express condition that, if any “privilege or permit” so granted was accepted, appellant would be bound to build certain subways; one being the one into which appellee fell. While this work benefited the public, it cannot be said that it was a “purely public improvement,” as contended by appellant, in the sense that it did not inure to the benefit of appellant. When appellant undertook for privileges and permits deemed valuable to it to construct this subway, it appears to us that it would be held to as strict liability as would a person who contracts for repairs to a sidewalk. We do not think that this case can be distinguished in principle from that of Kampmann v. Rothwell, 101 Tex. 535, 109 S. W. 1089, 17 L. R. A. (N. S.) 758. See, also, Robertson v. City of Paducah, 146 Ky. 188, 142 S. W. 370, 40 L. R. A. (N. S.) 1153.

The eighth, ninth, and tenth assignments of error, respectively, raise the issues whether the evidence shows negligence on the part of those who constructed the subway, pfoxi-mately causing appellee’s injuries, whether he was guilty of contributory negligence, and whether he assumed the risk of injury. We conclude that there is no merit in these assignments.

As we have held that appellee could not recover upon the original cause of action, it is useless to decide whether, in order to do so, he should have tendered to appellant the money received from Hipp and the Hipp notes.

Appellee contends that, even though we should sustain any of the assignments of error complaining of the submission of the original cause of action to the jury, we should nevertheless affirm the judgment under rule 62a for the Courts of Civil Appeals (149 S. W. x). The case was submitted as one for rescission of the release and recovery upon the original cause of action. Under the charge the jury found all facts necessary to entitle appellee to a judgment upon a suit for damages for deceit, and the verdict upon such findings could not consistently have been less than it was had the case been submitted as one of damages for deceit. Appellee, according to his pleadings, was not certain whether he was entitled to rescission of the release and settlement, or whether he would have to abide by same, and sue for damages, and therefore his prayer was in the alternative; but the court submitted only the cause of action for rescission, and it must be assumed that ap-pellee agreed to such act, and thereby made his election. The two remedies are inconsistent, and he had to elect which one he would ask for. Griffin v. Williams, 142 S. W. 981. When such election is made, the case is as well defined as if the pleadings had only included the prayer for rescission. Having decided that appellee mistook his remedy when he let the case go to the jury on the issue of rescission, we cannot affirm the judgment upon the theory that, had the real remedy been elected and submitted to the jury, the same verdict would, in our opinion, have been returned. We cannot sustain the judgment as one for damages for fraud, because such theory was not submitted to or passed upon by the jury. Urtz v. Railway Co., 137 App. Div. 404, 121 N. Y. Supp. 883. We do not think rule 62a is intended to aid judgments to the extent contended for in this case. Railway v. Wilkinson, 152 S. W. 203.

By the twelfth assignment appellant contends that the court erred in refusing to-give its special charge No. 3, to the effect that appellee was not entitled to recover on any cause of action growing out of or arising from the alleged representations of its claim agent concerning the solvency of Hipp. By the thirteenth assignment complaint is made because of the refusal of special charge No. 1, which was a peremptory instruction to find for appellant. Each of these assignments contains a very long statement of the-various reasons relied upon to show error, and each is submitted as a proposition in itself, without any accompanying propositions, and for statement of evidence reference is made to three long statements under other assignments. These assignments will not be considered. Crosby v. Ardoin, 145 S. W. 709; Russell v. Deutschman, 100 S. W. 1164; El Paso & S. W. Co. v. Hall, 156 S. W. 356.

With the exception of assignments Nos. 28 and 29, the remaining assignments of error are overruled. Most of those here overruled relate to issues rendered immaterial upon another trial by our holding that no recovery could be had against appellant upon the-original cause of action, and we conclude that same show no error requiring a reversal, if appellee had been entitled to recover on the original cause.of action as held by the trial court.

By assignment No. 28 it is contended that an exception should have been sustained to that part of the petition seeking a recovery upon the original cause of action, and No. 29 asserts error in submitting such issue. These two assignments are sustained.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The Fidelity & Deposit Company of Maryland has filed a motion for rehearing, praying that the judgment of the lower court be affirmed as to such company. Having held that plaintiff cannot recover upon the original cause of action, it follows that there can be no cause of action in favor of the Railway Company upon its cross action against said Fidelity & Deposit Company of Maryland. We are also of the opinion that even though a recovery could have been permitted ' upon the original cause of action, still no recovery could be had against the Fidelity & Deposit Company upon said cross action. Said motion for rehearing is therefore granted, and the judgment of this court reformed so as to provide that as to the cross action of the Railway Company against said Fidelity & Deposit Company the judgment of the lower court is affirmed, in other respects our judgment to remain as entered. The motions for rehearing filed by appellee Walker and by appellant are overruled.