author: HENDRICKS, J.

text:
    DALLAS FAIR PARK AMUSEMENT ASS’N v. BARRENTINE.
    (No. 996.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1916.
    On Motion for Rehearing, June 23, 1916.)
    1. Master and Servant @=^154(1) — Master’s Liability — Warning a Minor Servant.
    The purpose of the rule requiring a master to warn and instruct a minor servant is to give information of unknown and unappreciated dangers, and, if the minor knows and appreciates the risks and dangers of his employment, the reason of the rule does not exist, and the law does not impose an unnecessary act.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. <©==> 154(1).]
    2. Master and Servant <S=p158 — Warning Minor Servant — Negligence—Proximate Cause.
    If a minor servant really possesses the knowledge, understands the risk, and appreciates the danger, the master’s failure to warn is not the proximate cause of his injury, without which there can be no actionable negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 304; Dec. Dig. <S=vl5S.]
    3. Master and Servant <@^154(1) — Assumption of Risk — Knowledge—Minor.
    A minor must not only know the danger, but also the extent, and have the capacity to appreciate it, in order to assume the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. 154(1).]
    4. Master and Servant <@^>289(1) — Mas.ter’r Liability — Contributory Negligence.
    If a servant assumes the risk, the auestinn of contributory negligence does not arise, for by his assumption of the risk he absolutely precludes himself from a recovery for any injury that may result to him from such danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1089; Dec. Dig. <§=> 289(1).]
    5.Master and Servant <S^204(1) — Employers’ Liability Act — Assumption of Risk.
    Under Employers’ Liability Act (Acts 33d Leg. c. 179) § 1, par. 3 (Yernon’s Sayles’ Ann. Civ. St. 1914, § 5246b), assumed risk as a defense is eliminated in cases to which the act applies.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. <©=> 204(1).]
    On Motion for Rehearing.
    6.Master and Servant <®=3l54(l) — Personal Injury — Minor—Assumption of Risk.
    A minor, aged 19, who for 2 years prior to the accident had been working about a merry-go-round _ and who had been closing the doors during different periods of such time, who was directed to close the doors after the lights were out, and who knew the danger of stumbling-over stobs, set in the ground between, the doors, as well as the master, was not entitled to warning not to stumble over the stobs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. <^> 154(1).]
    7.Appeal and Error ®=»1066 — Prejudicial Error — Instructions.
    Where the master was not required to warn a minor servant to be careful of stobs standing in the ground between the doors inclosing a merry-go-round, the charge that a failure to warn if a man of ordinary prudence would have done so was material error.
    Lüü. JNote. — nor other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. @=^1066; Trial, Cent. Dig. § 558.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Thomas Barrentine against the Dallas Fair Park Amusement Association. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for a new trial.
    W. I-I. Atwell, of Dallas, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of D'allas, for appellee.
   HENDRICKS, J.

Thomas Barrentine, the appellee, was injured while in the employ of appellant, the Dallas Fair Park Amusement Association, at a merry-go-round. This particular merry-go-round was about 225 feet in circumference and 60 feet in diameter. It was inclosed by a series of doors, about 75 in all, the doors being about 3% feet in width. In the center of the inclosure were the horses upon metal carriages, with sufficient room to make the circuit within the inclosure and to leave walking space for the patrons to get on and off the horses and still remain within the building or the main inclosure. The upper portion of the doors was glass, and at each unit there were two doors, swinging back to back, which could be fastened together and held in that position, and between each of the doors was a stob, driven into the ground, from 1 foot to 3y2 feet in lieiglit, according to tile variation in testimony. The doors, when open, were also probably fastened to these stobs. The appellee, at different times, for about 2 years prior to the accident, had been working around the carousel and, according to his own testimony, was familiar with the different kinds of work in the operation of said amusement feature. At the particular time, when the accident and injury occurred, the appellee was working “extra” and not on “weekly pay roll,” though prior thereto he had enjoyed a considerable term of continuous employment. According to plaintiff’s theory, the manager of the merry-go-round had ordered him to turn out the electric lights in that part of the inclosure where the accident occurred, and after a short intervening time he was also ordered, with others, to close the doors, containing the glass panels mentioned, preparatory to closing for the night; that in performing the particular work one of the doors would not close readily, and, in making the effort, he stumbled against one of the stobs, lost his balance, and in the attempt to guard his fall, pushed his hand and wrist through the glass panes of the particular door, producing the infliction of a severe wound, the loss of considerable blood, and the severing of some of the tendons in the wrist of that arm. He testified, on account of the turning out of the lights, it was “too dark to see a stob on the outside.” On cross-examination, he testified:

“I have been closing those doors ever since I had been there for nearly 2 years. I have been going to those stobs every night, but I have never been warned about them. * * * I did not have to be warned about running over the stobs, '* * * but I did not know anything about what the danger was of those stobs; I never had been told about it being dangerous to stumble over those stobs. If anybody had given me any warning about those stobs being dangerous, _ I certainly would have watched them. * * * I do not think that the reason I got hurt was solely on account of the fact that I had not been warned not to stumble over those stobs; that is not altogether the reason; it was on account of the darkness.”

The appellee was 19 years of age at the time of the injury; had been working at the particular merry-go-round at intervals, for about 2 years, as stated, and had been upon his own responsibility for several years, independent of his father’s control and support. The stobs had previously been painted white. The paint, however, had worn off by the weather and time, and the stobs were of the color of the ground. The inference is conclusive that appellee understood the details of the work contributing to the operation of the merry-go-round, and was thoroughly familiar with the surroundings of its make-up, and the presence and situation of the stobs as an obstruction in walking around the carousel under any conditions, whether night or day; the latter part of this statement limited in its meaning by the fact that on account of the darkness he could not see the particular stob at the time injured.

The following is one of the grounds of the motion for new trial, constituting the ninth assignment of error, in appellant’s brief:

“Because the court erred in the third para-, graph of his charge to the jury, wherein he instructed the jury, in substance, as follows, to wit: ‘And if you further find and believe from the evidence that a person of ordinary care, under the same or similar circumstances as you may find surround the defendant, would have' warned plaintiff o-f such dangers or perils, if any, then you are further instructed that the defendant was guilty of negligence as the term is hereinafter used, because said charge placed a greater burden upon the defendant than the law requires, in that it required that the defendant should have warned the plaintiff even though the plaintiff knew of the danger of his employment; that is to say, the danger of stumping or stumbling or running against a stob which was driven into the ground.’ ”

The purpose of the rule requiring the master to warn and instruct the minor servant is to give information of unknown and unappreciated dangers. If the minor knows and appreciates the risks and dangers of his employment, the reason of the rule requiring an employer to warn does not exist. The law does not impose an unnecessary act. Tucker v. National Loan & Investment Co., 35 Tex. Civ. App. 474, 80 S. W. 879; Wiggins v. E. Z. Waist Co., 83 Vt. 365, 76 Atl. 36; Ewing v. Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 201, 29 L. R. A. (N. S.) 487; Mitchell v. Comanche Cotton Oil Co., 51 Tex. Civ. App. 506, 113 S. W. 158; Labatt on Master and Servant, vol. 3 (2d Ed.) § 1155.

If the minor in reality possesses the knowledge, understands the risk, and appreciates the danger, the failure to warn is not the proximate cause of the injury, without which there can be no actionable negligence. Ewing v. Lanark Fuel Co., supra.

Of course it is the rule in this state that a minor must not only know the danger, but also the extent, and have the capacity to appreciate the same, in order to assume the risk. Justice Gaines said:

“It is not sufficient that he knows .the employment is dangerous, but he must also bo aware of the extent o-f the danger, and have the discretion to understand the risk, before he can be held to have assumed it. These are questions of fact to be determined by the jury.” Texas & Pacific Ry. Co. v. Brick, 83 Tex. 602, 20 S. W. 513.

Appellee says that the Brick Case is conclusive of this case on the question of assumed risk. The plaintiff in that case, at the time of the accident, was nearly 19 years of age, in the employment of the receiver of the railway company, as brakeman, in the switchyards of a city. I-Ie was on some coal cars, being pushed up the incline to a coal chute track, for the purpose of coupling onto a car standing upon the level. He was on the front car, in going up the incline, for the purpose of being present to make a cou-' pling, and, when within a few feet of the. stationary car on the level track, he jumped from tlie moving car, struck a piece of coal, which turned witli idm, causing him to be thrown between the rails and injured. The track between the rails was not covered, and the coal chute was elevated several feet above the ground, constructed on a trestle. It was not distinctly shown “that he ever served upon the coal chute before the day of the accident,” though he had served the receiver as brakeman for three months. He testified that if the track between the rails had been covered, he could have saved himself from injury. On the particular question, we do not beJieve, weighing the facts of that case and testing the decision as applied to the character of employment and the circumstances surrounding that plaintiff, that it is, by any means, wholly analogous to, and controlling of, this case. Quoting the syllabus of the case of Tucker v. National Loan & Investment Co., which fairly reflects the opinion (35 Tex. Civ. App. 474, 80 S. W. 879):

“An experienced farm hand, though a minor, is held to have assumed risks incident to loading sheaf oats on a wagon frame and riding' thereon over a road well known to him, and cannot recover for injuries sustained by the oats sliding and causing him to fall.”

Associate Justice Ply said, adopting the language of the Court of Appeals of New York:

“He is bound to take notice of the ordinary operation of familiar laws, and to govern himself accordingly; and, if lie fails to do so, the risk is his own.”

In that case the verdict was against the minor, but it was affirmed upon the theory that erroneous instructions -were harmless because the facts of the case would have supported a peremptory instruction. The case of Houston & Texas Central Ry. Co. v. Martin, 21 Tex. Civ. App. 208, 51 S. W. 641, decided by Justice Williams, when on the Galveston court, discloses this condition: Appellee was a section hand, engaged in unloading cross-ties from a flat ear upon a railway switch track, and was hurt by some of the ties from the car falling upon him. The particular car was moved by use of pinch bars inserted behind the rear wheels, and was stopped by thrusting a piece of scantling in front of the wheels. The plaintiff himself placed the end of the timber upon the rail, standing beside it, and holding it in front of him, and when the wheel struck it, the piece of timber struck him, knocking him down, and the jolt of the car, passing over the timber, caused the ties to fall off the ear and upon appellee. Appellee was a minor, employed for more than 2 years at the section, and was familiar with the duties of his employment. Justice Williams said:

‘The risk incurred seems clearly to have been one of those known to appellee to be incident to this particular service, and was therefore assumed by him. But, if not, it was open and patent; was in fact one which arose from the operation of the plainest natural laws. The facts affecting the risk were all known to him, as well as to any one else. He did not realize or foresee the danger, but it was one which, with Ms knowledge of the facts, he was required to foresee as well as another. It arose from conditions open to his observation. * * * The fact that he acted under the foreman’s direction or orders cannot avail him. There was no fact affecting the danger known to the foreman which was not also known to him.”

The court reversed and rendered the case in favor of the railway company. Writ of error was refused. Apparently, upon superficial analysis, it might be said that the emphatic declarations of Justice Williams are weakened on account of the fact that appel-lee had “been cautioned by the foreman to be careful and avoid getting himself hurt.” Evidently the decision did not turn upon the general warning suggested in the opinion. Of course we are not advised as to the actual terms of the warning given, but the one indicated in the opinion would not suggest to an employe any better method, or any greater appreciation, or cause the danger to he lessened, to the minor on account of such an instruction. The real principle controlling the case was based upon familiarity and knowledge of the minor with the particular character of work performed by him, and his experience in that particular business. The case of Producers’ Oil Co. v. Barnes, 103 Tex. 515, 131 S. W. 531, decided by Justice Brown of the Supreme Court, and cited by appellee, is an authority detrimental, instead of in his favor. Barnes was a minor, and injured at night while standing on planks laid horizontally on the framework of a derrick, 45 feet above the ground, caused by his foot slipping on the planks. “Barnes was about 19 years old at the time of the accident. I-Ie had worked in other oil well derricks about two months before he commenced to work at this, but he worked upon the floor of the derrick and never upon the double boards. He had been at work at this place about 15 daj^s when the injury occurred,” and, upon the particular occasion, volunteered his services to the foreman, necessary to be performed at night upon the boards above the ground, as stated. It was alleged by him that there were no lights at the place where he was required to work in the nighttime; that there were water, mud, and oil accumulated upon the boards upon which he was required to stand; that the boards upon which he was required to stand were slanting so as to cause his foot to slip. The Supreme Court granted the writ of error because they were inclined to the opinion that the evidence did not show with sufficient certainty the negligence of the oil company, nor that the slant of the boards contributed to the injury which Barnes received. Justice Brown said:

“It is evident when Barnes went upon the double boards he knew there was no light in that part of the derrick; therefore he assumed the risks incident to the absence of the light. The undisputed evidence shows that the manner of doing the work necessarily caused water and mud to be upon the double boards, and Barnes assumed the risk incident to that condition.”

Upon the third question, as to the slanting boards, and as to the negligence of the company in allowing them to he slanted, Justice Brown, upon analysis of the testimony, resolved it in favor of Barnes, and upon that question alone affirmed the judgment. If not for that question, it is clearly deducible the cause would have been rendered. The case of Stamford Oilmill Co. v. Barnes, 103 Tex. 415, 128 S. W. 875, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111, affords some analogy to the particular question at issue. Barnes was 12 years of age at the time of the injury; he was at the oilmill upon implied invitation sent by his father in company with an older brother on business, and as a licensee had the right to be at the mill. As we interpret, and test the case, the serious question was whether a boy of that age was entitled to a warning with reference to the dangers attendant upon the character of property owned and operated by defendant. There was a bridge, made for the use of employés hauling hulls in dump carts to be thrown into the ''conveyor” of the oilmill. Young Barnes had walked to the part of the bridge over the conveyor and was watching its operation when, on being called by his brother and starting to leave, he was “overbalanced.” He testified that he knew of the presence of the conveyor, and the effect of getting his foot into it, and “knew that the simple way to avoid that danger was to keep his foot out of the conveyor.” Justice Williams said:

“It is necessarily true, therefore, that it was not from a lack of knowledge and experience, nor because of the absence of warning or restraint by defendant’s employé, but from a mishap such as might be suffered by an adult as well as by one such as be, that the unfortunate boy suffered his injury.”

He further said:

“We do not mean that contributory negligence is to be charged to the boy as a matter of law, but that the omission of the defendant in not instructing and protecting him does not constitute actionable negligence, since he had the knowledge which instruction would have given him, and knew how to avoid this particular danger.”

The question of contributory negligence is also pertinently raised by an assignment reproduced in the motion for new trial. “If he assumes the risk the question of contributory negligence does not arise, for by his assumption of the risk he absolutely precludes himself from a recovery for any injury that may result to him from such risk.” St. L. & S. F. Ry. Co. v. Mathis, 101 Tex. 351-352, 107 S. W. 535.

The injury occurred subsequent to the enactment by the Thirty-Third Legislature of an act relating to employers’ liability and changing the common-law rule with reference to contributory negligence, fellow servant, and assumed risk. Gen. Laws of Texas, pp. 429, 430 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h et seq.). This law provides that it shall not be a defense if an employé is guilty of contributory negligence, but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such employé. Section 1, par. 1. Paragraph 3, § 1, eliminates assumed risk as a defense unless the injury was caused by the willful intention of the em-ployé, and section 2 of the act provides:

“The provisions of this act shall not apply to actions to recover damages for * * * personal injuries sustained by domestic servants, farm laborers, nor to the employés of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to em-ployés of any person, firm or corporation having in his or their employ not more than five employés.”

The cause was tried in March, 1915, in the district court of Dallas county, and we feel persuaded that able counsel in this case were cognizant of the terms and purport of the act. The case was tried, however, as being controlled by the principles of the common law affecting the questions of negligence and assumed risk, and involving the proposition of minority, without any mention in the brief or in the argument therein of the statute. The cause having been pitched upon those lines, we are regarding it, as to. this particular record, as controlled by those principles. We are assuming that under the view of counsel as to the provisions of this act, on account of the record not showing that appellant did not have in its employment more than five employés, the act does not apply. This court held the act constitutional, in the case of Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309, and repeated the holding in the case of Postex Cotton Mill Co. v. McCamy, 184 S. W. 569.

If, upon another trial of the cause, proof should be different, and the act applicable, the matter of assumed risk as a defense is, of course, eliminated. As stated, at common law, assumed risk precludes contributory negligence in ending the case, and Chief Justice Phillips, in the case of G., H. & H. R. Co. v. Hodnett, 106 Tex. 194, 163 S. W. 13, presents a clear disquisition of the difference between the defenses. If the act applies, the cause, of course, should be tried under that act. The case of Railway Co. v. Mathis, supra, by Chief Justice Gaines, presents on certificate an opinion upon assumed risk, as well as contributory negligence, answering both questions of the Court of Civil Appeals. An engineer was guilty of assumed risk, by falling into the unlighted pit of a turntable, in passing from the roundhouse of a railway to the depot, because he chose that path of travel instead of another which was safer. After so deciding, Chief Justice Gaines said:

“As pointed out in the case of Texas & Pacific Railway Co. v. Bradford, 66 Tex. 732 [2 S. W. 595, 59 Am Rep. 630] between the doctrine of assumed risk and contributory negligence, as applicable to sueb case, in contributory negligence the question usually arises, What would a prudent man have done under the circumstances? If a prudent man, under the exigencies of the case, would have taken the chances and acted as plaintiff acted, he is acquitted of negligence.”

He also cited the case of Gulf, Colorado & Santa Fé Ry. Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227, holding that it was a question for the jury whether a plaintiff, who knew of certain defects on a bridge and crossed it, and was injured, was guilty of contributory negligence, although there was another safe way he may have gone and thus avoided the injury. Upon the facts propounded in the certificate the Supremo Court, in the Mathis Case, held Mathis guilty of assumed risk, though not conclusively guilty of contributory negligence. In this case, appellee Barrentine, testified that he was ordered to turn out the lights, and after a short period of time he was then ordered, with others, to close the doors for the purpose of discontinuing the business for the night. The care he used in the performance of his duty is not very clear in this particular record. Cases, of course, can exist where an ordinarily prudent man can exercise care in the dark in performing his work and at the,same time stumble over an obstruction, the position of which in the daytime he would be acquainted with.

Upon the condition of the record we do not think the case should be reversed and rendered on the doctrine of assumed risk; hence reverse and remand it for another trial.

On Motion for Rehearing.

Bearing in mind the ninth assignment of error, challenging the instruction of the court, on the question of the master warning the plaintiff, we have probably traveled from the main issue, to some extent, in the opinion. Applying the controversy over the rule, to the actual record as presented, the question is, Should the master be required to warn Barrentine, before he started around the inclosure, to close the doors, after the lights were out? He knew it was dark, and the inability to see the stobs was as imputable to Mm as any other person. He had been closing the doors during the different periods of time he had been engaged in work for nearly 2 years; he testified he did not have to be warned about running over the stobs, though he did say he did not know of the danger resultant from the stobs. Of course he did not have to be warned about running over the stobs, but, was he as cognizant of the danger in stumbling over the stobs, as the master ? To say that the master, under such conditions, would have to warn a minor of the experience Barrentine is shown to have had not to stump his toe upon the stobs it seems to us exceeds the limit of the persons attributable by the law, requiring instructions to minors by employers. Bessey v. Newichawanick Co., 94 Me. 61, 46 Atl. 806; Wagner v. Plano Man. Co., 110 Wis. 48, 85 N. W. 643. There is no duty imposed upon the master to instruct a minor servant when he could not enlarge the minor’s knowledge in the premises. Northern Alabama Coal, Iron & R. R. Co. v. Beacham, 140 Ala. 422, 37 South. 227. An employer is not required to instruct a 14 year old boy of average intelligence of allowing a portion of his body to project beyond the sides of an elevator on which his duties required him to ride, where he already knows that if he does so he is likely to be.caught between the elevator and passing floors and injured. Cronin v. Columbian Mfg. Co., 75 N. H. 319, 74 Atl. 180, 29 L. R. A. (N. S.) 111. See, also, a discussion by Justice Presler, when on the Ft. Worth Court of Civil Appeals, in the case of Mitchell v. Comanche Cotton Oil Co., 51 Tex. Civ. App. 507-511, 113 S. W. 158.

If the appellant was not required to warn the appellee, Barrentine, to be careful of the stobs, and avoid them, the charge that a failure to warn, if a man of ordinary prudence would have instructed Barrentine, constituted negligence was material error.

It is true that the criticism embodied in the particular assignment could have been leveled at the whole paragraph of the charge, on the particular question. However, we think the assignment, based upon the exceptions to the charge of the court, sufficiently raised the error to the trial court, as that we should regard it on this appeal.

The motion for rehearing is overruled.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. v. GILCREASE.
    (No. 1005.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1916.
    Rehearing Denied June 28, 1916.)
    1. Evidence <@=3470 — Opinion Evidence — Matters for Jtjky.
    A witness should state facts, where they are such as can be detailed to the jury, and leave it to the jury to draw the proper conclusion and deduction arising therefrom.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2220; Dec. Dig. <@=>470.]
    2. Evidence <@=>473 — Opinion — Inferences from: Collective Facts.
    The conclusion of a common observer, testifying as to the result of observation made at the time in regard to the common appearance of facts and conditions of things which cannot be reproduced by description, is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. <@=>473.]
    3. Evidence <@=3501(3) — Opinion — Conclusion — Bodily and Mental Condition.
    A witness may give his opinion as to the mental or physical condition of a party, after relating the facts upon which such opinion is based.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2297; Dec. Dig. <@=>501(3).]

      4. Evidence &wkey;501(3) — Opinion Evidence-Foundation.
    Opinion as to mental or physical condition may be given before or after testimony of the witness as to the facts upon which his opinion is based.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2297; Dec. Dig. &wkey;501(3).]
    5. Evidence <&wkey;477(2) — Opinion Evidence —Bodily Condition.
    After testimony of a witness as to his observation of the effect of labor upon plaintiff in personal injury suit, he could give his opinion whether the plaintiff could perform light or heavy labor and could do so continuously.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2238; Dec. Dig. &wkey;477(2).j
    6. Appeal and Error <&wkey;1048(7) — Harmless Error — Exclusion oe Testimony on Former Trial.
    In personal injury action, the exclusion of testimony of doctors on former trial as impeaching evidence was not prejudicial to defendant; where its admission could not have affected the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4160; Dee. Dig. 1048(7).)
    Appeal from District Court, Collin County.
    Action by R. D. Gilcrease against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wallace Hughston and W. R. Abernathy, both of McKinney, and C. C. Huff, of Dallas, for appellant. F. E. Wilcox and R. C. Merritt, both of McKinney, for appellee.

      Writ of error pending in Supreme Court.

   HUFF, C. J.

The appellee sued for injuries sustained while employed by appellant, as a section hand on appellant’s railroad, and obtained a verdict and judgment for $3,000. It is substantially alleged and so found by the jury, that one J. D. Faulkner, a colaborer with appellee on the section, and with whom appellee was working, gave a heavy, unusual jerk of a railroad tie; that he jerked it suddenly and before appellee was ready, quicker than was usual and customary ; jerked it sideways instead of giving it a steady, straight pull, as it was usually and ordinarily done. This negligence was alleged and found to be the proximate cause of the injury, without any negligence on the part of the appellee contributing to his injury, and, further, that he did not assume the risk. His injuries alleged and shown were to his back, his kidneys, bladder, and other portions of his body. The evidence is conflicting between the physicians as to the nature of his injuries. If the jury accepted appellee’s testimony, they could find he was severely injured and suffered severely, and so continued to suffer; that it incapacitated the appellee to do manual labor, and which was his only means of earning a living; and, while they find his injury was not permanent, there are facts which will warrant the finding that its continuance will probably be of long duration, and that he will continue to suffer for a long time. This particular issue was not submitted to the jury or passed on by them, and we must presume the court so found the issue in favor of appellant, and do so in sustaining the judgment of the court for the amount, found by the jury. The first assignment of error is in admitting the testimony of one M. L. Brock:

“I think R. D. Gilcrease is able to do light work on the farm occasionally, but I do not think that ho will be able to do any work regularly every clay. R. D. Gilcrease is not able to do any heavy work on the farm or anywhere else.”

The appellant objected because:

“(a) The same is the opinion or conclusion of the witness, and not a statement of any fact; (b) prejudicial; (c) and such evidence is the opinion of a nonexpert witness, concerning matters about which he is not competent to speak; (d) and said witness is not qualified to express an opinion.”

The trial court added the following qualification to the bill of exception:

“This witness had also testified as follows: That plaintiff came to his place in November, 1914; that he gave him plowing to do; he gave him that kind of work to do because he apparently was not able to do hard work; that it had the appearance of making plaintiff weak and worn out, or to do a hard day’s work; that he noticed during the time he was at work that he was weak and worn out after the day’s work was over and to be suffering greatly; that after doing a day’s work R. D. Gilcrease appeared to be very weak and worn out.”

The evidence objected to is clearly the opinion of the witness. Railway Co. v. Demsey, 40 Tex. Civ. App. 398, 89 S. W. 787; Wells Fargo, etc., v. Boyle, 39 Tex. Civ. App. 365, 87 S. W. 164; Roth v. Travelers’ Protective Association, 102 Tex. 241, 115 S. W. 31, 132 Am. St. Rep. 871, 20 Ann. Cas. 97. Unless the facts recited by the trial judge in his qualification to the bill are sufficient as a predicate for the opinion, the evidence should have been excluded.' The witness was a nonexpert. The witness must, under such circumstances, relate the facts upon which his conclusion is based. The testimony of this witness, as given by him is set out in appellant’s brief, and is concurred in by ap-pellee, and is as follows:

“My name is M. L. Brock; my age 45 years old. My business is farming, and I live five miles west of Ferris in Ellis county. I have been engaged in fanning all my life. I have known R. D. Gilcrease since November, 1914. He has worked for me. R. D. Gilcrease is now living in a tent on J. M. Bachelor’s farm on Bear creek, about three miles west of Ferris, Tex. I gave R. D. Gilcrease farm work, plowing. I have given him 20 days’ plowing from that time until now. I gave R. D. Gilcrease, when he came to my place in November, 1914, that kind of work to do because he apparently was not able to do any hard work. It had the appearance of making R. D. Gilcrease weak and worn out to do a day’s work, and after the day’s work I noticed, during the time that R. D. Gilcrease was at work, that he was weak and not able to do a day’s work, and was worn out after the day’s work was over. He appeared to be suffering considerable. I don’t think that R. D. Gilcrease is able to make a full hand on the farm, because I don’t think he is physically able to make a full hand on the farm. After doing a day’s work R. D. Gilcrease appears to be very weak and worn out. I think that R. D. Gilcrease is able to do light work on the farm occasionally, but I don’t think that he would be able to do any work regular every day. R. D. Gilcrease is not fit for any heavy work on the farm or anywhere else. He don’t seem to be physically able to do hard work. * * * I have known R. D. Gilcrease since November, 1914.”

The fifth assignment objects to the statement of this witness that he gave appellee that kind of work because apparently he .was not able to do any other kind or hard work.

The sixth is to the testimony that it had the appearance of making appellee weak and worn out after the day’s work, and he noticed during the time the appellee was at work that he was weak and not able to do a day’s work, and was worn out after the day’s work was over.

The seventh, that he did not think he was able to make a full hand on the farm.

The eighth, that he was able to do light farm work. The ninth, that he does not seem to be physically able to do hard work.

It has been repeatedly said by our courts that the correct practice is for the witness to state facts where they are such as can be detailed to the jury, and leave it to the jury to draw the proper conclusion and deduction arising therefrom. Clardy v. Callicoate, 24 Tex. 170-173. There are exceptions, however, to the general rule, as well established as the rule. The conclusion of a common observer, testifying as to the result of his observation, made at the time, in regard to the common appearance of facts and a condition of things which cannot be reproduced and made palpable to the jury, is said to be admissible. McCabe v. San Antonio, etc., 39 Tex. Civ. App. 614, 88 S. W. 387. So, also, where the facts which constitute the cause from which the opinion of the witness deduced the effect cannot themselves be so presented or communicated to the mind of the jury as to impart to them the knowledge actually possessed by the witness. Turner v. Strange, 56 Tex. 143. Under these exceptions and the like, the statement of the witness that it appeared the work done made appellee weak and worn out after the day’s work, that he noticed he was weak and worn out, are admissible. The courts of this state recognize these exceptions in the following cases: Railway Company v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010; Railroad Company v. Adams, 121 S. W. 876; Railway Co. v. Parnell, 56 Tex. Civ. App. 265, 120 S. W. 951; Railway Co. v. Dellmon, 171 S. W. 799; San Antonio Traction, etc., v. Flory, 45 Tex. Civ. App. 425, 100 S. W. 202; Railroad Co. v. Pruitt, 157 S. W. 236; Railway Co. v. Sandlin, 57 Tex. Civ. App. 151, 122 S. W. 60.

The witness having testified to the apparent suffering, weakness, and worn-out condition after a day’s work at light labor were the facts observed by him which the trial court says was the testimony which authorized the admission of the opinion set out under the first assignment.

A witness may give his opinion as to the mental or physical condition of a party when they have related the facts upon which such opinion is found, and it is not material whether the facts are given before or after such opinion. It would hardly have fallen within the province of the trial judge to have excluded the opinion of the witness because he did not agree with him from the facts detailed. Garrison v. Blanton, 48 Tex. 302, 303; Railway Co. v. Jarrard, 65 Tex. 560; Railway Co. v. John, 9 Tex. Civ. App. 342, 29 S. W. 558. It has been held that a non-expert witness may testify as to the effect upon the injured party’s capacity to work or labor. Railway Co. v. Smith, 90 S. W. 926; Railway Co. v. Watts, 36 Tex. Civ. App. 29, 81 S. W. 326; Railway Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445, and the other authorities cited herein.

We believe the witness, having observed the effect of labor upon the appellee, as to exhausting him, wearing him out, and noticing his suffering, and also that he wasi weak, could give his opinion whether he could perform heavy or light labor or could do so continuously. As to the testimony of Brock, objected to, we find no error on the part of the court in overruling the several exceptions thereto, and the assignments thereon will be overruled.

The second assignment is to the testimony of Frank Smith that, “Yes; R. D. Gilcrease seems to have a weak back and kidneys.” The witness was a half-brother of appellee, and saw him work before and after his injury; saw him at work after the injury, plowing and picking cotton, which he had to do by crawling on his knees; that stooping gave him great pain. He noticed that ap-pellee flinched when he would stoop; that he would have fever at night after this work; that he would have to stop often to let his kidney act; and that he seemed to suffer a great deal with his kidneys. Railway Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 155; Railway Co. v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783, and authorities heretofore cited. Mrs. Smith, the mother of appellee, also testified as to the condition of his kidneys, without objection; her testimony being in its nature substantially the same as Frank Smith’s.

The third assignment is also to Smith’s testimony, to the effect that he was not able to make a full hand. This is disposed of by what has heretofore been said by us.

The fourth assignment is to the testimony of McDonald, to the same effect as that of Smith, and part of Brock’s testimony. We believe this evidence also admissible, while the witness did not testify quite so fully as to his observation of the appellee as did the others, but simply states he seems to be weak in the back and suffering with his back and kidneys. This assignment is overruled.

The eighth and tenth assignments are also overruled, to the evidence admitted over the objection of appellant, for the reasons heretofore given.

We do not think any material error, if error at all, is shown by assignments 11 and 12, in excluding the testimony of Dr. Ben Bargent and Dr. J. E. Hunter, given on a former trial of this case. It appears the court stenographer was placed on the stand to show that the two doctors, on the former trial, testified that they then found appellee with fever when they examined him for the purpose of testifying. The testimony offered as part of their then evidence we do not regard as explaining their statement with reference to his fever or their statement of that fact. The witnesses on the present trial had testified he had no fever, when they first examined him, and their former testimony on that point was offered in the nature of impeachment. We do not think the offered testimony explained the apparent contradiction, and could not, if it had been received, have affected the case either one way or the other.

The thirteenth assignment assails the verdict as being excessive. While the verdict is more than we would have awarded upon this record, we are yet unable to say that a remittitur should be filed. It was a matter which the jury and trial court could better determine than we, and it is not so grossly excessive in our judgment as to demand that it be set aside, or that a remittitur be ordered.

The ease will be affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered' Digests and Indexes

      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & N. O. R. CO. et al. v. JONES.
    (No. 1000.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1916.
    On Motion for Rehearing, June 21, 1916.)
    1. Carriebs c&wkey;31S(9) — Injury to Alighting Passenger — Sufficiency of Evidence.
    In action by husband for wife’s injuries while alighting from passenger train, caused by bumping of cars, conflicting evidence strongly contradicting plaintiff’s claim, and unexplained absence of testimony by plaintiff and daughter, both present at accident, held not to support verdict for plaintiff.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1314; Dec. Dig. &wkey;318(9).]
    2. Evidence <&wkey;76 — Presumptions—Failure of Plaintiff to Testify.
    The failure of plaintiff to testify as to facts material to her case and directly under her observation allows a presumption against her that such testimony would operate to her prejudice.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. <&wkey;>76.]'
    3. Appeal and Error <&wkey;1003 — Review — Questions of Fact — Sufficiency of Evidence.
    It is the undoubted duty of the appellate court to interfere and set aside a verdigt, where it has the conviction that the verdict is wrong and clearly against the preponderance of evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. &wkey;> 1003.]
    On Motion for Rehearing.
    4. Appeal and Error <&wkey;731(5) — Assignment of Errors — Specifications—Sufficiency of Evidence.
    An assignment of error, “because the verdict and the judgment are against the great preponderance of the evidence,” specifying the evidence, followed by a statement, purporting to be a part thereof, that “said verdict and judgment being so clearly against the great preponderance of the evidence, the court should, in its discretion and the power invested upon it under the law, set the verdict aside and grant a new trial herein,” held sufficient statement of a manifestly wrongful verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3021; Dec. Dig. &wkey;731(5).]
    5. Appeal and Error <&wkey;1003 — Review — Question of Fact.
    Although there may be sufficient evidence to carry a case to a jury, yet, if the verdict rendered is so against the preponderance of the evidence as to show that manifest injustice has been done, it may be set aside on appeal although in so doing it is necessary to disregard evidence overborne.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. <&wkey;> 1003.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.

    Action by A. J. Jones against the Texas & New Orleans Railroad Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    G. R. Smith, of McKinney, and Baker, Botts, Tarker & Garwood, of Houston, for appellants. Clarence Merritt, of McKinney, for appellee.
   HENDRICKS, J.

The appellee, A. J. Jones, sued the appellants, the railway companies, for injuries alleged to have occurred to his wife, Mary Jones, as a passenger, at and near the depot in Dallas, Tex., while in the act of alighting from a train. The ap-pellee and wife were residents of Collin county, Tex., and before the occurrence, charged as negligence, Mrs. Jones had been on a visit to some relatives in Houston county, Tex. She was accompanied by her five children, ranging in age from three to eleven years, and on the return trip, arriving at Dallas, at the Elm street station in that city, her husband was present at the depot to meet her, from which place they continued the journey over an interurban line from Dallas to McKinney.

As the journey proceeded on the interurban to McKinney, Mrs. Jones’ condition developed the preliminary pains of miscarriage, necessitating, upon arrival at McKinney, an immediate attendance of a physician, and after arrival, within a few hours, the miscarriage became complete. According to opinion testimony, at the time of the miscarriage,' her condition of pregnancy had been of about three months’ duration, and during which time the periodic menstrual flow of Mrs. Jones had continued. A cross-examination of Mrs. Jones developed that, a short time previous to her departure from Houston county for her return to Collin county, she had picked cotton, while visiting one of her relatives, for the period of about a week, necessitating the dragging of a cotton sack between the cotton rows. It was in evidence that she had made admission of a previous miscarriage, of not as severe a character, though,, as the one in question. Her testimony on the stand was that she was not sure that the previous trouble was a miscarriage, and, if so, it occurred about eight years prior to the present injury, and subsequent thereto she had given birth to two children.

It was alleged in the petition that upon arrival of the train at Dallas, on account of the train standing upon the crossing at Elm street, the same was uncoupled at the Elm street crossing and the front end of said train was pulled north toward the Union Station, leaving plaintiff’s wife and children in a coach south of the crossing, and that, while she was alighting and on the platform steps of the coach, the front of the train which had been uncoupled backed against the coach on which she was situated with unusual violence, throwing her against the floor and platform thereof as she was descending the steps, causing the injury. The alleged negligence submitted by the trial court as a special issue was:

“Whether or not the train upon which Mrs. Jones was riding' gave a violent and unusual jar, or jerk, while she was attempting' to alight therefrom, * * * caused by reason of the front coach on said train being propelled against the portion of the train upon which she was riding and from which she was attempting to alight.”

The appellant specifically denied the allegation of negligence, and previous to the trial took the depositions of three different women friends of Mrs. Jones, who visited her at her home in McKinney, the testimony in which disclosed statements of Mrs. Jones, without any declarations of any jar or bump of the train causing the particular injury, and which, in its nature, such testimony of said statements is incompatible with the theory of negligence asserted in the petition ; hence the appellee, A. J. Jones, the necessary and only party plaintiff to this suit, was upon notice before the trial of the proffer of a sharp contest of the issue whether or not the bump or jar of the coach, from which Mrs. Jones was alighting, ever actually occurred. The jury found that it did occur, and further found that the miscarriage of appellee’s wife was not.the natural sequence “of her general condition and her acts and habits prior to the time she arrived at Dallas.”

The appellants vigorously assert that the verdict and judgment are against the great preponderance of the evidence, reciting the particulars, according to their theory, to sustain said -position. Two other women friends of Mrs. Jones, who visited her at the home in McKinney while she was sick, testified by deposition on behalf of appellee that Mrs. Jones stated in their presence that the cause of the miscarriage was a jar of the train, causing her to be thrown against a “seat.” Mrs. 1-Iart testified:

“She said the car gave a sudden jerk, and that another car ran against it very suddenly, and she was knocked over against the seat, and that she came very near falling after she got up [from the seat], but caught herself.” (The interpolation is ours.)

The testimony of Mrs. Jones was that, upon arrival at the station in Dallas, she saw her husband through the window on the platform of the station, and that all of the children preceded her from the coach in alighting, the little girl, eleven years old, carrying a three year old baby, and assisted by her husband to the platform, and a boy ten years of age carrying a small suit case, and that she was the last to leave the particular coach. She also said:

“I was on the platform, and had started down the steps, a step or two, and the train come back against the coach with such force, full force, and just knocked it winding, and me, .too. It was a hard jerk or knock, and I fell down; it threw me 'up against the baluster like, and struck me in the side, and I fell back on the floor [of the platform]. * * * ”

She further said:

“Nobody helped me down out of the coach [referring evidently to the absence of railway employes]; only my husband took bold of me and helped me down, after I fell and got up; he took hold of me and helped me down himself.”

It is clearly inferable from the situation of the husband, the appellee herein, at the steps of the coach, that such an occurrence, if it happened, was under his direct observation. She testified to two jars, or bumps, of the train — another immediately succeeding the one which knocked her down, but which she withstood.

The little girl, eleven years of age at the time of the alleged occurrence, and twelve at the time of the trial, was one of usual size and intelligence of a child of that age, and the mother testified that she was at home, and she supposed she could come to the trial and testify. It may be, of course, that the position of the child, having preceded. the mother from the coach, was such that she could not see the fall of her mother back upon the platform, if it occurred; but the noise of a jar, such as testified to by the parent, producing such a fall, could have been easily heard, and the jar itself, as an occurrence producing an accompanying fall of her parent, it is reasonable to say, would have been cognizable,, and impressive, to a Ehild of that age. Neither the husband of the injured wife, nor the little girl, were witnesses on the stand at the trial, nor were any justifying circumstances adduced, explaining the absence, or breaking the force arising from the fact, of such withheld testimony. Appellee says:

“The argument that plaintiff was present when the car came into Dallas, and did not testify, is without force, because defendant had the same right to use him as a witness as did the plaintiff in his own behalf.”

Such a weak statement to break the force of withheld testimony of a plaintiff actually cognizant of the main controverted fact, and sharply contested as a pivotal issue in the case, by able counsel in this case, reflects a mental - condition of recognition that the absence of such testimony, under the conditions, is hard to explain, and the force of which is perplexing to avoid as a logical inference that plaintiff’s real knowledge of the alleged occurrence would have militated on the stand against his own case. Lord Mansfield said that it is certainly a maxim:

“That all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side% to have contradicted.” Blatch v. Archer, Cowp. 63, 65.

Starkie says:

“The conduct of a party in omitting to produce that evidence in elucidation of the subject-matter in dispute which is within his power, and which rests peculiarly within Ms knowledge, frequently affords occasions for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to Ms prejudice.” Evidence, 54; Jones on Evidence, Blue Book, vol. 1, § 20, pp. 128, 129.

The decisions of the appellate courts of our state in substance announce the same principle. Thompson v. Shannon, 9 Tex. 536; Bailey v. Hicks, 16 Tex. 222; Chandler v. Meckling, 22 Tex. 36-44; Needham v. State, 19 Tex. 332; Insurance Company v. Tillman, 84 Tex. 31, 19 S. W. 294; Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801; Railway Company v. Walker, 38 Tex. Civ. App. 76, 85 S. W. 28.

Dr. Hunter, the physician who administered to Mrs. Jones the night she arrived in McKinney, testified that he had no recollection of any complaint having been made that Mrs. Jones was knocked down On the train. He said, however, that several days after he had treated her (the time not definitely stated) Mr. Jones, the plaintiff, came to his office, and asked him “whether a person falling on a train, it could produce an abortion”; and he told him “it depended upon the condition of the woman and the nature of the injury.”

Appellants’ contention for reversal is that the charge of negligence was fabricated, and stresses, with other circumstances, the inquiry by the plaintiff of Dr. Hunter, as above stated. As a circumstance Of suspicion, it is weakened by the testimony of two of the women who visited Mrs. Jones a short time after the alleged occurrence of statements by her' that she was jerked' against'a “seat.” The five ladies, three for the defendant and two for the plaintiff, who visited Mrs. Jones, are, of course, apparently disinterested witnesses. Two of plaintiff’s witnesses are explicit that Mrs. Jones stated that she was taken sick before ever she arrived in Dallas; one of them testifying, “Mrs. Jones told me she was very sick before she got to Dallas, but did not say anything about experiencing pains; she said she kept getting worse and worse until she got to McKinney;” another stating that Mrs. Jones said, “She took sick on the way, and got very sick before she got to Dallas.” Two of these witnesses said that upon subsequent occasions she further stated that it was the jar and the fall which was the cause of the miscarriage.

Henry Lair, a blacksmith, and a witness for the defendants, testified that, about a week after Mrs. Jones’ miscarriage, Jones, the plaintiff, was in his shop, and upon inquiry by him (Lair) as to the cause of his wife’s condition, Jones stated that he did not know what it was that produced such condition “unless it was dragging a cotton sack.” It is true that plaintiff established the reputation of Lair for truth and veracity as bad, and the credibility of the witness was necessarily weakened. However, the particular fact of Jones’ alleged statement that he did not know the cause of his wife's condition unless it was dragging a cotton sack was unc'ontradicted; and the dragging of a cotton sack, extending over the period of a week, just' prior to her return to Collin county, was an admitted fact. Jones on Evidence says that what a party has said or done at a time when litigation was not thought of, having regard to the circumstances of time, place, and person, should furnish a substantial reason for his defeat when his' case is founded on facts inconsistent with those evidenced by statements to which he has given publication. Volume 2, § 236, bottom of page 358 and top of page 359 (Blue Book). Necessarily a statement of a principle of this character is to be received with caution.

We will not analyze and reproduce the theories derivable from the testimony of the physicians as experts, with reference to the susceptibility of this woman to a miscarriage, or state their opinions, based on different hypotheses, as to what caused the injury; but, after deliberate reflection on the whole record, we think this verdict and judgment should be set aside.

Neither will we- detail the testimony' of other passengers to the effect that, so fax as they knew, no jar or jerk occurred; nor the testimony of the railroad witnesses that the passengers were all discharged from the c'oaches before the train was moved; nor set out the contradictory inferences adduced by plaintiff that the uncoupling of the train could have occurred, and the backing up of same happened, in corroboration of the affirmative testimony of Mrs. Jones, for tire reason that the nonproduction of the testimony of the little girl, and particularly the withholding and absence of the testimony of the plaintiff, cognizant of the sharply Controverted fact, if it occurred, produces such a persistent and abiding conviction of strong doubt, in connection with other testimony in the case, of the impropriety of this verdict.

It is the undoubted duty of this court to interfere and set aside a verdict where we have the conviction that it is wrong and clearly against the preponderance of the evidence. We admit the caution and reluctance of appellate courts in the manifestation of this power as against verdicts upon conflicting evidence. The purpose 'of withholding this testimony of the plaintiff and of the child, of course, is not shown. We impute to learned counsel a knowledge of the force of the principle of presumption, where unexplained there is a withholding of the testimony of witnesses of crucial facts, and in this case of the plaintiff, as we believe it should be imputed to this court, that we are entitled to the belief that the reasons for taking chances before the jury without such testimony is just as much attributable to the fact that the same would have injured very materially plaintiff’s cause, and the accompanying inference that it was thought that the jury would believe against this kind of a defendant the uncorroborated affirmative statement of the wife testifying to the crucial fact, notwithstanding the husband’s and child’s mouths were closed. Though we are unable to find a particular case presenting a sharp analogy to the instant case, we unhesitatingly set aside this verdict. Short v. Kelly, 62 S. W. 914; American National Insurance Co. v. Fulghum, 177 S. W. 1008: Zapp v. Michaelis, 58 Tex. 275; Nowlin v. Hall, 97 Tex. 441, 79 S. W. 806; Kohlberg v. Awbrey & Semple, 167 S. W. 829; Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282.

Reversed and remanded.

On Motion for Rehearing.

The assignment in appellants’ brief, upon which this court reversed and remanded the cause, is that the trial court erred “because the verdict and the judgment are against the great preponderance of the evidence in this,” following the statement with succinct and particular specifications wherein the testimony, by numerous witnesses, by strong inference, was opposed to said verdict. It is now contended that there was no complaint by appellant that the verdict was the result of prejudice or passion, or an improper motive by the jury, and hence we should not have considered said assignment.

This objection, unless the statement in the brief, to the effect that said assignment is a mere statement, argumentative, and not in accordance with the rules, is made the first time in this motion for rehearing. The case of Benford Lumber Co. v. Knox, 168 S. W. 33, in a sense, sustains the position of the appellee, wherein the ctourt says that a complaint presented by an assignment that the preponderance of the evidence did not justify the jury’s findings does not raise the question that a finding is so manifestly against the great weight and preponderance of the evidence as to lead to the conclusion that the jury was influenced by an improper motive. We admit the technical distinction; However, it would seem that an assignment that a verdict is against “the great preponderance of the evidence” would present the thought, and import a meaning, of a manifestly wrongful verdict, because any verdict against the “great” preponderance of the evidence (in accentuating preponderance) is against the greater weight of the evidence to that extent as to exhibit an injustice. Evidently, though not probably appropriately merged into the assignment, that is the idea intended to be conveyed by the appellant, for at the close of the assignment, and purporting to be a part thereof, it is said:

“We submit to the court that, sjiid verdict and judgment being so clearly against the great preponderance of the evidence, the court should, in its discretion and the power invested upon it under the law, set the verdict aside and grant a new trial herein.”

Upon the whole, we shall let the assignment stand.

Serious complaint is made that this court has improperly exercised such power. Necessarily, the exercise of a power of this character carries with it the idea of some discretion, for the reason that, in all cases of this character, there is testimony, though the appellate court thinks it is overborne, to sustain the verdict avoided. The appellee quotes the language of Chief Justice Stay ton in Niagara Insurance Company v. Lee, 19 S. W. 1030, wherein he says:

“The Supreme Court will not reverse on the ground of the insufficiency of conflicting- evidence to sustain the verdict, though it may be of opinion that the evidence somewhat preponderates the verdict.”

The discretion exercised in cases of this character as to the amount of preponderance, it may be true, involves a difference at times of individual judgment on the part of the judges, which arises from the nature of the question and the temperamental composition of different courts. Take the case of Choate v. San Antonio & Aransas Pass Ry. Co., 90 Tex. 83, 36 S. W. 247, 37 S. W. 319. A passenger positively testified that in attempting to pass from one car to another, as a train was about to stop at a station, he was thrown from the cars by a sudden jerk. However, the testimony of several unimpeached witnesses was to the effect that plaintiff thereafter stated to them that he had stepped off the train when it stopped at the depot, and that when he went to step back he missed the step, or slipped, and the wheel caught his foot. The Court of Civil Appeals said, stressing particularly the undisputed admissions of plaintiff, that the jury was not warranted in finding the injury was caused as alleged, and necessarily the appellate court disregarded the testimony of the injured passenger. The Supreme Court, after granting the writ, first argued that there was no evidence to show that the jerk was anything unusual in stopping and starting the train, under ordinary circumstances. On motion for rehearing the question of the railway’s negligence was reconsidered, the court holding there was evidence in that respect, hut saying, however:

“Although there may be sufficient evidence in a case to require the court to submit it to the jury, yet if the verdict rendered thereon is against the preponderance of the evidence, to that degree which shows that manifest injustice has been done, the trial court may, and should, grant a new trial. The judge should not invade the province of the jury and take from it the decision of a question which properly belongs to it; neither should he abdicate the functions of his officejand permit the prerogatives of the jury to be perverted to the accomplishment of wrong.”

The cause was necessarily reversed and remanded, as the Supreme Court has no power over the action of a Court of Civil Appeals in that respect.

In regard to our comments of the failure of the plaintiff to testify, it is said that it is not shown in this case that the husband was in attendance upon the trial. He was the plaintiff in the case, and the recovery belonged to the community estate, and the duty, under the law, devolved upon him to take care of the litigation; that is the principal reason the law makes the husband the sole party plaintiff. It - is shown that he challenged the witness Lair the day before the trial (though he failed to contradict his statement on the stand), who testified that Jones stated to him that his wife’s sickness was caused by the dragging of a cotton sack. It is true the wife’s testimony was positive that the jerk of the train threw her to the platform of the coach. The inferences, however, from' the testimony of numerous witnesses that the train was not disconnected, and that there was no jerk or jar after it was at rest, for the purpose of permitting passengers to alight at Elm street; the testimony of certain women friends, in effect that Mrs. Jones stated that she was taken sick before she ever arrived at Dallas; the testimony of Lair, though his reputation for veracity was impeached, of the statement of the husband of the dragging of a cotton sack being the cause of his wife’s sickness, undenied, however, as to the particular fact; the fact that Mrs. Jones admitted that she dragged a cotton sack between cotton rows for a week just prior to the alleged injury; the admissions in this case that the woman was sick before Dallas was reached, though attributed by her to snuff and the heat; the fact that her husband, the plaintiff, saw the fall and did not see fit to corroborate her weakened testimony, after having been so strongly assailed by the appellant; the fact that a 12 year old daughter, normal so far as this record shows, immediately preceded the mother to the depot platform.and necessarily heard the jar and the jerk of the train, testified to by her mother (if she did not see the mother fall), and shown to have been in the courtroom at a particular time of the trial, and not placed upon the witness stand to bolster the mother’s assailed testimony on the pivotal point of the ease, added to the testimony of the defendant’s witness producing the inferences from its standpoint that no such jerk and collision ever occurred — impel this court to again reiterate, stronger than the statement in the original opinon, that according to this record this is an unjust verdict.

“Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth. When a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist.” Bastrop State Bank v. Levy, 106 La. 586, 31 South. 164-166.

The rule, of course, is not as strong in this state, as stressed by Justice Blanchard of the Supreme Court of Louisiana, where there is-testimony sufficient to require the submission of the case to the jury; however, it has a commendatory ring as a forcible presentation, persuasive and appealing in certain character of cases. Notwithstanding the forcible and able argument of plaintiff’s counsel, this court will not upon such a record make a fetish of a jury’s verdict.

The motion for rehearing is overruled.
      <®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS GLASS & PAINT CO. v. REESE.

    (No. 967.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1916.
    On Motion for Rehearing, June 7, 1916.)
    1. Master and Servant &wkey;>297(l) — In Jury-Negligence — Place to Work — Findings.
    Findings on special issues in an action for injuries to plaintiff, a night watchman, thrown down an elevator shaft, through striking his head on a plank of a scaffolding projecting into a doorway, through which his duties required Mm to pass, that the plank caused the accident, and that defendant proprietor by the exercise of ordinary care should have known of its existence, sufficiently finds that defendant was negligent in its duty of providing plaintiff a reasonably safe place to perform his services.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1195; Dec. Dig. <&wkey;> 297(1).]

      2. Evidence &wkey;sS14(l) — Hearsay — Watchman’s Record.
    A watchman’s record made by his punching or pulling boxes resulting in marks on a tape, in a central office, against which an operator puts down the time they came in, is not admissible on the question of such time, without testimony of the operator as to the accuracy of time put down by him, being hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Big. § 1168; Dec. Dig. &wkey;314(l).]
    On Rehearing.

      3. Master and Servant <&wkey;217(l) — Assumption of Risk — Master’s Negligence.
    An employe does not assume the negligence of the master unless he knows or should have known thereof.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574; Dec. Dig. <S&wkey; 217(1).]
    4. Master and Servant &wkey;280 — Assumption of Risk — Knowledge—Evidence.
    That a night watchman, before hitting his head on a plank negligently left projecting into a doorway, passed through several times in safety, is not conclusive that he knew or ought to have known of it relative to assumption of risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986 ; Dee. Dig. <&wkey;> 280.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by G. W. Reese against the Texas Glass & Paint Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. Muse & Muse, of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

The appellee sued appellant company for damages for alleged personal injuries. It is alleged: That appellant, for the purpose of installing a passenger elevator in its four-story building, had constructed a temporary stairway and in doing this work had negligently “left a plank or timber from the side of said walls across said doorway on said fourth floor at the stairway, at its opening into the elevator shaft on the fourth floor of said building, so that one undertaking to enter said stairway from the south side would strike their head on said plank or timber so negligently across a portion of said opening or doorway to the stairway aforesaid, endangering the life and safety of those using the stairway.” That under a written contract between the Smith Detective Agency and appellant the agency was to furnish a guard for the premises on the inside during the nighttime. The duty of the watchman during the night was at stated hours to visit the basement and each of the several floors and register upon a punch clock on each floor, thereby verifying the performance of his duty, for which service the agency was paid a consideration by appellant; and that appellee was employed by the agency in such duty for the appellant under the contract. Negligence was also alleged in failing to furnish sufficient lights to the appellee, as it is alleged appellant was bound to do. The findings of the jury eliminated this ground of negligence upon which recovery was sought. That while in the discharge of his duty, as night watchman, after registering on the fourth floor and in leaving the doorway to the stairway on the side upon which the plank or timber extended across the door, and in ignorance of the same, appellee struck his head and face against the timber, which caused him to fall or be thrown from the fourth floor of the building, through the elevator shaft down to the basement, thereby inflicting injuries of which complaint is made. Appellant, by its answer, in some particulars, admitted the allegations of the ap-pellee, and in others denied, pleading contributory negligence and assumed risk on the part of the appellee. The case was submitted, upon special issues, to a jury. The jury find that appellee’s injuries were occasioned by his head coming in contact with the projecting timber over or across the stairway landing on the fourth floor of" appellant’s building, thereby causing him to fall through the elevator shaft from the fourth floor of the building to the basement; that he had no knowledge of the existence of the timber pri- or to striking his head against it; that he could not have known of the existence of such projecting timber by the exercise of ordinary care in the discharge of his duties as such night watchman; that appellant company, in the exercise of ordinary care, should have known of the existence of such projecting timber prior to the injury and that the injury was sustained by appellee while he was in the performance of his duties of night watchman, in the appellant’s building; that appellee exercised ordinary care in such duties at the time of the accident. They also find it was necessary for the appellee to pass under the timber to go through the door in entering and in leaving the room on the fourth floor. They find the lantern used was such that an ordinary prudent watchman would use in his duties as such, that appellee was not guilty of contributory negligence, and that he sustained damages in the sum of $1,000.

We think the facts found by the jury are supported by the evidence; that these findings of fact may be legitimately inferred from the testimony of the witness. In making this finding, we do so without deeming it necessary to set out the evidence upon which it is based. We therefore overrule assignments 1 to 7, inclusive.

The eighth assignment is overruled for the reason that the findings of fact, in answer to issue No. 2, is to the effect that appellee had no knowledge of the timber across the door and could not have known of the same by the exercise of ordinary care. This issue included substantially the facts sought to be passed upon by tbe requested charge, No. 2, of appellant.

Assignments 9 to 14, inclusive, are overruled, upon tbe ground stated in overruling 1 to 7.

Tbe jury having found that tbe timber caused tbe injury, and that appellee did not know and could not have known of tbe same by tbe use of ordinary care, and that appellant, by tbe exercise of ordinary care, should have known of its existence, sufficiently found that appellant was negligent in tbe performance of its duty towards appellee, who, in the discharge of bis duty in appellant’s service, owed to him tbe duty of providing him a reasonably safe place to perform that service. That the place was not a reasonably safe one is shown by the fact that in tbe door where appellee was required to enter and leave tbe room in tbe performance of bis necessary work, a timber was placed so that it would strike bis bead, thereby rendering it probable that be would be precipitated into tbe well of tbe elevator. This scaffolding or platform, so erected by appellant, it must have known was dangerous, or by tbe use of ordinary care that it would be so to this night watchman.

Tbe fifteenth assignment of error asserts error in tbe action of tbe court in rejecting two slips of paper of tbe record of tbe detective agency of tbe morning of October 23, 1912, tbe date of the injury, which slips were tbe purported records of appellee’s visits to tbe several floors of appellant’s building on tbe night of October 22d and 23d. It appears the watchman punches or pulls tbe box every hour, and the record of tbe box pulled goes into tbe detective office on a wire, and tbe night manager in tbe office takes tbe number of tbe box and time on a record tape. In tbe morning, tbe agency would send one of them to appellant and it would keep tbe duplicate. Tbe number is given by a ring in tbe office, and this number is designated by dots or a code. These rings do not give tbe hour. “Tbe night manager looks at tbe time when tbe next one comes on tbe tape; be marks tbe time on it.” Tbe slips offered in evidence were not made out by tbe witness whose testimony was rejected, but by the night manager, who was not offered to show tbe accuracy of tbe report. Tbe witness testified:

“On October 23d, we bad one operator, Mr. Cunningham, and the accuracy of the report depends upon the accuracy of the operator in making the report. * * * The tape shows only the hieroglyphics — just like a telegraph operator. So many dots for each number, and you give him a key, and anybody can read the number.”

Tbe slips offered show the hours from tbe time appellant went on duty, 7 p. m., October 22d, to 6 o’clock a. m., October 23d, purporting to register each box on all five of tbe floors, from the basement to the fourth floor.

The appellee objected that tbe validity of tbe paper depends upon tbe accuracy of tbe night operator, and, unless there was testimony of the operator who made them that tbe slips were correct, they should not be admitted; that tbe hours, as shown by tbe record offered, depended upon tbe accuracy of tbe act of tbe operator. Tbe effect, if admitted, would be to admit hearsay evidence of tbe operator, Cunningham. The court sustained these objections, and we believe properly. Tbe record made was not automatically done by tbe instrumentalities used as to tbe time, but this was made by tbe operator at the time' of receiving tbe number of tbe box pulled. Tbe time was tbe important question sought to be presented by this testimony. If tbe entries bad been shown to have been made correctly, as to tbe time by tbe party making them, perhaps the slips would have been admissible. As we understand, evidence of this character is not admissible in this state. Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103; Id., 124 S. W. 217.

We find no reversible error, and tbe case will be affirmed.

On Motion for Rehearing.

Tbe appellant assumes that this court affirmed tbe case, on tbe theory that tbe Workman’s Compensation Law, passed October, 1912, and effective September, 1913, controls it. We do not refer to the act in tbe opinion and are unable to see upon what appellant based its assumption. Tbe mere fact that one of tbe judges asked a question during tbe oral argument, before tbe court, certainly does not warrant any such presumption.

The employé does not assume tbe negligence of tbe master unless be knows, or should have known, thereof. Tbe fact that be may know tbe master is repairing a stairway does not charge him with tbe knowledge that tbe master has negligently placed a timber in tbe door through which bis duties require him to pass every hour of tbe night, in such a position as to endanger him. The fact that be was fortunate enough to miss it in making bis trips theretofore during the night does not conclusively show that he knew it was so placed in tbe door, or that be ought to have known it was there. He bad tbe right to assume it was not there and that tbe master bad done its duty. There was nothing shown by tbe facts to put him upon tbe inquiry as to whether the plank was so dangerously placed in tbe doorway. On tbe question of negligence in maintaining tbe premises as a reasonably safe place, we cite Memphis, etc., v. Gardner, 171 S. W. 1082-1085.

Tbe motion for rehearing will be overruled.
      tg^oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gr»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes