author: HUFF, C. J.

text:
    PECOS & N. T. RY. CO. v. HOLMES et al.
    (No. 785.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 8, 1915.
    On Motion to Reform Judgment, June 5, 1915.)
    1. Evidence <©=506 — Expert Testimony — Matters Directly in Issue.
    In a suit for injuries to cattle in shipment, a witness, though an expert, cannot state his conclusion as to the depreciation which the cattle would have suffered by ordinary shipment and the depreciation they suffered as it was; the question of depreciation being for the jury’s determination, and the witness assuming it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. <@=506.]
    2. Evidence <©=>558 — Opinion Evidence — Expert Testimony. •
    Cross-examination as to the means of knowledge of an expert witness goes to the credibility of his testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. <®=558J
    3. Trial <©=■260 — Instructions—Befusal.
    The refusal of requests covered by the charge given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=260.]
    4. Carriers <©=229 — Carriage of Live Stock —Measure of Damages.
    The measure of damages for injuries .to cattle shipped for pasturage is the same as for injuries to those shipped to market for sale.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <@=229.]
    5. Carriers <©=218 — Actions—Defenses.
    Where a shipper gave notice of injuries to cattle, the fact that the claim filed with the notice was not so large as the amount sued for will not defeat recovery, although it should be considered on the question whether the amount sued for was excessive.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <©=218.]
    On Motion to Beform Judgment.
    6. Appeal and Error <©=1173 — Determination.
    In an action against two railroad companies, there was a judgment in favor of one, and the other appealed. There was no complaint as to the judgment in favor of the company which did not appeal, nor was there any allegation of partnership or agency between the com-pañíes. Seld that, though the judgment against the appealing railroad company was reversed, the judgment in favor of the other should not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4502-4572, 4650; Dec. Dig. <@=>1173.]
    Appeal from District Court, Wheeler County; P. P. Greever, Judge.
    Action by Ered and Henry Holmes against the Pecos & Northern Texas Railway Company and another. From a judgment for plaintiffs, the defendant named appeals.
    Reversed and remanded as to the defendant named, and affirmed as to the other defendant.
    Terry, Cavin & Mills, of Galveston, and Hoover & Dial, of Canadian, for appellant. C. E. McVey and M. Reynolds, both of Shamrock, and N. H. Lassiter, of Ft. Worth (Gustavus & Jaclrson, of Amarillo, of counsel), for appellees.
   HUFF, C. J.

Appellees Holmes brought suit against the Pecos & Northern Texas Railway Company, and the Chicago, Rock Island & Gulf Railway Company, in the district court of Wheeler county, alleging damages to a shipment of 333 head of grown cattle and 250 head of calves, from Shamrock, Tex., on the'line of the Chicago, Rock Island & Gulf Railway Company to Amarillo, Tex., thence to Lamesa, over the Pecos & Northern Texas Railway Company, alleging delay and negligence in handling the stock, jerking, bumping, suddenly stopping the train, etc., greatly bruising and injuring the cattle, to their damage in the sum of $1,501. Judgment was rendered in favor of the ap-pellees against the Pecos and Northern Texas Railway Company, the trial court having instructed a verdict in favor of the Chicago, Rock Island & Gulf Railway Company.

The facts in this case show that there were sudden stops, hard jolts and bumps, so that the cattle were thrown against the side of the cars, etc., on both lines of road. The evidence also shows that bumps, jars, and stops are ordinarily made in shipments of this kind and character. There is no evidence that we are able to find in the record tending to show what the damages are to cattle where they are handled in the usual and ordinary way incident to shipments of this character; or how much such handling would depreciate their value from Shamrock to Lamesa. The evidence shows that there was one head of cattle so badly crippled at the time of arrival that it was necessary to kill it, and that its value was $45. . The Pecos road appeals, making its codefendant and the plaintiffs in the court below, the Holmes-es, parties appellees in this suit.

The first assignment of error presents error on the part of the trial court in permitting Fred Holmes, one of the appellees, to testify over its objection:

“I know what the market value of these 30 head of cattle that I say were worse injured than the others were at Lamesa, in the condition they were in at the time they arrived there. Their market value was about $25 per head. I know what the market value of those cattle was at Lamesa at the time we arrived there if they received the injuries I have mentioned, except such thereof as was necessary to the shipment from Shamrock to Lamesa. It was about $40 per head.”

The objection made to this testimony was that it was the opinion of the witness on a mixed question of law and fact; that he was not qualified to speak; and that it was equivalent, in law, to permitting the witness to testify that the cattle were negligently transported; and that the same was misleading to the jury and highly prejudicial.

The third assignment is urged to substantially the same evidence which refers to 302 head of cattle in the shipment, and the same objection is urged thereto as to the 30 head; and the fourth assignment was urged to this witness’ testifying as to the calves, which testimony and objection are substantially the same as to the 30 head of cattle.

It will be observed that this witness undertook to give the value of the cattle in the condition in which they should have arrived at Lamesa, after deducting “Such thereof as was necessary to the shipment from Shamrock to Lamesa.” Assuming that this witness was qualified as an expert to give his opinion as to what the depreciation would be under an ordinary and usual shipment between Shamrock and Lamesa, he yet did not testify what it was. He gave no fact upon which the jury could determine by what method he arrived at such depreciation. I-Ie-stated there would necessarily be some depreciation incident to the shipment, and then testifies what that would be, together with the unusual and unnecessary handling of the’ cattle. Did he allow enough for the necessary and ordinary depreciation? 1-Iow could the jury determine whether he did or not? We believe that his testimony is susceptible of the construction that he assumed there was unusual and unnecessarily rough handling. He, in other words, testifies in terms to the measure of damages submitted by the court to the jury for their determination. He testified to the law which the court was to-submit and the facts the jury were to find. The jury must reach their conclusion from the evidence adduced upon the trial, and not the opinion of the witness; that is, was there unusual and unnecessary jolting, jamming, stopping, etc? It occurs to us the jury should have the facts upon which they could find what the necessary injury would be and what the unnecessary handling would produce. They should form the conclusion, and not the witness. In Railway Co. v. Wright, 1 Tex. Civ. App. 402, 21 S. W. 80, it is said:

“From the general answer of these witnesses, giving the gross amount of damage per head, we are unable to state in arriving at this amount they confined themselves to legitimate items of damages to be taken into consideration in making the estimate. As to what is the effect of a given kind of treatment npon an animal, either in reducing or increasing its weight, or in injuring or benefiting its appearance, is a proper matter of opinion to be stated by a witness to the jury; but as to whether these several items constitute the legal damage in a given case, and the amount of such damage, the jury must decide under proper instructions of the court.” Railway Co. v. Hughes, 31 S. W. 411; Railway Co. v. White, 32 S. W. 322; Kauffman v. Babcock, 67 Tex. 241, 2 S. W. 878; Railway Co. v. Kapp, 117 S. W. 904.

Where a witness was permitted to testify to the market value of cattle at their destination if they had been transported with ordinary care and dispatch, the court held the admission of such testimony to be erroneous. Railway Co. v. Bishop, 154 S. W. 305; Railway Co. v. Kimble, 49 Tex. Civ. App. 622, 109 S. W. 234; Railway Co. v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422. Both cases cite the Supreme Court in Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808.

“The elements or facts which should be considered were first to be determined in part by the court in the admission and exclusion of the evidence, and the conclusion to be drawn from them as to the time reasonably required to carry the cattle to their destination with ordinary diligence was then to be drawn by a jury by applying to the facts admitted in evidence their own judgment as to what would constitute ordinary diligence, and a reasonable time. The opinion of the witness therefore was given in part from questions of law addressed to the court and in part upon conclusions of fact to be drawn by the jury.”

The witness in this case, in effect, stated if the' cattle had been handled with proper care there would have been some “necessary” injury, and, deducting that injury, the cattle would have been of the value of $40 per head. This is based upon some fact in the mind of the witness, but the court and jury were not informed upon what fact or facts there would have been necessary injuries; and how miich such necessary injury would have been. What kind of jolts did he consider ordinary or extraordinary? What would have been the depreciation in weight or appearance by the necessary injury from their normal condition? The witness decides this entire question for the jury. The court could as well have instructed the jury that the witness gave the proper measure of damages as to have permitted him so to testify. . There was no other testimony in the record on this subject but that of this witness. We think the court was in error in .admitting the testimony, which necessarily reverses the case.

The second assignment will be overruled. We think there was sufficient knowledge shown by the witness of the market value at Lamesa to have authorized the court to permit him to testify thereto. • The cross-examination, showing his means of knowledge or want of knowledge, etc., go more to its weight than to its admissibility.

The fifth assignment is overruled. The trial court gave one of appellant’s instructions involving substantially the same proposition embodied in the charge refused, of which complaint is made by this assignment. The measure of damages is the same on cattle shipped for pasturage as to market for sale. Railway Co. v. Stanley, 89 Tex. 42, 33 S. W. 109. On the propriety of a charge calling attention to the improvement or recovery of cattle after injury, and after being placed upon the range, we call attention to Railway Co. v. Mulkey, 159 S. W. 111, and are inclined to approve what is there said; but, aside from what is there said, we believe the trial court sufficiently submitted appellant’s theory by giving its requested charge, and it was unnecessary to give the one upon which the assignment is founded.

The sixth assignment is overruled. It appears the trial court, in the general charge, and in the specially requested charges, given by the court, sufficiently covered the proposition contained in this assignment.

The seventh assignment is overruled. The fact that the claim filed with the notice of damages, with appellant, is not as large as the amount sued for, would not defeat his right to sue because no notice was given. The notice was given, but the claim for damages was less than sued for. Appellees were not confined to any special amount by the contract, but it required notice in order that appellant might investigate before the witnesses or evidence were beyond its reach. The amount of the claim was a proper matter for the jury in considering the damages sustained by appellees, and we think could be considered by them for that purpose.

The eighth, ninth, tenth, eleventh, and twelfth assignments are overruled. We deem it unnecessary to discuss them at this time, as they relate to the sufficiency of the testimony to support the verdict. Our discussion of the first assignment disposes of some of the grounds urged and presented in these assignments. The trial court sufficiently instructed the jury not to find against appellant for damages occasioned by the negligence of the Chicago, Rock Island .& Gulf Railway Company.

Eor the reasons heretofore stated, the case will be reversed and remanded.

On Motion to Reform Judgment.

The Chicago, Rock Island & Gulf Railway Company has presented its motion to correct the judgment of reversal and affirm the judgment as to it. There was no complaint in this court, and none was presented in the court below, to the judgment rendered in favor of the Chicago, Rock Island & Gulf Railway Company. There was no allegation of partnership or agency between the tw,o railways in the petition of appellee. The judgment of this court will be reformed, and the judgment of the trial court as to the Chicago, Rock Island & Gulf Railway Company will not be disturbed but affirmed; and the judgment as to the Pecos & Northern Texas Railway Company alone reversed and a new trial ordered as to that road; and the judgment as to the Chicago, Rock Island & Gulf Railway Company will be affirmed. That is, that appellees take nothing, as to that railroad company, and that it recover its costs in the court below and in this court. Railway Co. v. Hamm, 47 Tex. Civ. App. 196, 103 S. W. 1127; Railway Co. v. Moore, 119 S. W. 697; same case, 103 Tex. 349, 127 S. W. 797. The motion of the Chicago, Rock Island & Gulf Railway Company is granted, and the judgment ordered corrected in accordance with this opinion.
      <g=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    PYRON et al. v. HODGES.
    (No. 7205.)

    (Court of Civil Appeals of Texas. Dallas.
    April 24, 1915.
    Rehearing Denied June 19, 1915.)
    1. Judgment <@=3256 — On Teiai of Issues— Conformity to Findings.
    Where a special verdict is returned, the court must enter judgment in accordance therewith, however erroneous such verdict may appear to it; for a judgment must conform to the verdict.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <@=3256.]
    2. Judgment <@=3256 — On Trial of Issues— Conformity to Findings “Paid in Full.”
    In an action to recover a broker’s commission, on the sale of a hotel, that was not to be paid unless the purchase-money notes given for such hotel were paid, where no issue was raised by the pleadings whether the notes were paid in money, the parties trying the case on the issue that the contract was rescinded, and not that money was paid in settlement of the notes, while the jury found that a rescission of the purchase was made in good faith because of the buyer’s inability to pay the price, and that the seller in rescinding and taking a reconveyance did not intend to defeat the broker’s right to his commission, a special finding by the jury that the purchase-money notes were “paid in full” meant that the notes were canceled by the rescission of the purchase contract, not paid in money, so that entry of judgment for the defendant upon the special verdict was not improper as inconsistent with the findings.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 446-454; Dec. Dig. <@=3256.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by R. B. Pyron and others against Charles O. Hodges. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Thompson, Knight, Baker & Harris, of Dallas, for appellants. Etheridge, McCormick & Bromberg, of Dallas, for appellee.

       Writ o£ error pending in Supreme Court.

   RAINEY, C. J.

Appellant brought suit against appellee to recover commissions for services in selling the St. George Hotel, in the city of Dallas, Tex., the sale having been made to one Oliver on a credit for $250,000, and for a part of the consideration Oliver executed his four promissory notes for $12,-500 each. Appellee answered that the commission to be paid was $5,000, conditioned on the said notes being collected; that said notes were not collected, because Oliver was insolvent, and in order for appellee to regain possession of said hotel the contract of sale was rescinded and by which said 'notes were canceled. The cause was submitted on special issues, and upon the return of a verdict judgment was entered for appellee, from which this appeal is taken.

Appellant contends that the court erred in rendering judgment for appellee upon the-verdict returned, but instead the verdict required a judgment for appellant.

There is no statement of facts in the record, and our decision will be based upon the pleadings and the verdict as returned by the jury. The jury found that the contract made between Hodges and Pyron was that Pyron was to receive $5,000 commissions “conditioned upon the payment to Hodges of the four notes of $12,500 each, which were made by Oliver and indorsed by Pyron.” To the third question submitted by the court, “Were the said four $12,500 notes paid to Hodges either in whole or in part, and, if they were paid in part, how much was paid thereon,” the jury’s answer was, “Paid in full.” Appellant insists that this finding of the jury shows conclusively that the condition expressed in the contract for commissions had been fulfilled, which entitled a recovery by Pyron, which required the entry of judgment for Pyron, even if the court considered such finding wrong. On the other hand, appellee contends that the other findings of the jury show conclusively that by the said finding the jury did not mean or intend to convey the idea that said notes were paid to Hodges in money, but that they were paid in full by their cancellation in the rescission of the trade, by which Hodges took back the hotel.

We understand the law is that the judgment must conform to the verdict, and, when there is a special verdict returned, the court should enter judgment in accord therewith, no matter how erroneous the verdict may be; but, in view of the pleadings and other findings of the jury, the finding, “Paid in full,” the court did not violate the rule just announced, and we think it evident that the jury meant the notes were paid and canceled by the rescission of the contract. There was no issue raised by the pleadings that the notes were paid off and discharged by payment in money, but that they were canceled by the rescission. The findings of the jury, other than this one, which force us to the conclusion that they did not mean payment in money, are the answers made to questions 4 and 5, which answer to question 4 is in effect:

“That the rescission contract between appel-lee and wife and Oliver and wife of date December 8, 1910, was entered into in good faith, because of Oliver’s inability to comply with his purchase from appellee and for the purpose of rescinding the sale • on that account and of restoring each party to his respective right.”

And the answer to 5 is in effect:

“That appellee, in rescinding his sale and conveyance of his Dallas hotel property to Oliver, and in procuring a reconveyance thereof from Oliver, did not thereby intend to defeat Pyron in the payment of his agent’s commission or brokerage earned, if any, in the original sale of said property by appellee to Oliver.”

These findings show that a rescission of the contract between Oliver and Hodges was made, restoring each party to his respective right on account of Oliver’s inability to comply with the terms of sale, and that the rescission was made in good faith without any intent on the part of Hodges to defeat Pyron out of his commission, and this we think precludes the idea that Hodges received any payment on the notes, but was only restored to his original right in being placed in statu quo.

There is an apparent conflict between the findings of the jury in the respect mentioned, but we think these can be harmonized, or rather the verdict should be sustained. Both parties tried the ease on the issue that the contract was rescinded, and not that money was paid in settlement of the notes. There being no plea of payment, therefore payment in money was not a material issue, and the court did not err in rendering judgment for appellee.

The following authorities sustain the views we have expressed, to wit: Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. B. A. (N. S.) 672; Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Telegraph Co. v. Bich, 101 Tex. 466, 108 S. W. 1152; Kelley v. Ward, 94 Tex. 289, 60 S. W. 811; Furst-Edwards v. Railway Co., 146 S. W. 1024.

The judgment is affirmed.
      <S=Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    ATCHISON, T. & S. F. RY. CO. v. HARGRAVE.
    (No. 435.)

    (Court of Civil Appeals of Texas. El Paso.
    May 27, 1915.
    On Rehearing, June 17, 1915.)
    1. MASTER AND SERVANT @=293 — INJURIES TO Servant — Instructions—Applicability to Evidence.
    In an action for injuries to a railroad brakeman’s eye caused by hot sand from the engine flues, an instruction permitting recovery if the jury found that it was' negligence to sand out the flues at that time, when they knew the brakeman was on the top of the caí-, was not erroneous as predicating negligence on an act by the operatives of the engine which was necessary and was done in the usual and customary manner, where there was no evidence that it was necessary to sand out the flues at that particular time.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. @=>293.]
    2. Master and Servant @=>286 — Injuries to Servant — Sufficiency of Evidence — Negligence.
    In an action for injuries to a railroad brakeman, evidence held sufficient to take to the jury the negligence of the engineer in making an emergency stop when the signal for the ordinary stop was given, whereby the train was pulled in two, and the air rhshing from the broken hose blew rust and dirt into the brakeman’s eye.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. @=>286.]
    3. Appeal and Error @=>499> — Presenting Questions in Lower Court — Bequested Charges — Submission to Court and Counsel. >

    The refusal of requested charges will not be reviewed where the bills of exceptions thereto do not show that the charges were presented to the court and submitted to opposing counsel for examination within a reasonable time after the charge of the court was given to the attorneys for examination, as required by Acts 33d Leg. c. 59.
    [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2595-2598; Dec. Dig. @=>499.]
    4. Trial @=>121 — Misconduct of Counsel-Argument — Comment on Evidence.
    In an action by a railroad brakeman for loss of his eye, where negligence by the company’s agents in the treatment of the eye was charged, and the company physician testified that he made a superficial examination of the eye, and ordered plaintiff to go to a hospital, argument by plaintiff’s attorney that, though he was compelled to treat the ease in a general sort of way, he was not going to treat it as superficially as defendant’s doctors treated plaintiff’s eye, does not require a reversal of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dee. Dig. @=>121.]
    5. Damages @=>132 — Personal Injuries — Loss of Sight.
    Where a railroad brakeman, who had previously had good health and was earning from $125 to $145 per month, received injuries which caused great suffering and resulted in the total loss of sight of one eye, with danger to the other eye, a verdict for $10,000 damages is not so excessive as to show an abuse of the jury’s discretion as to the amount of damages, nor to indicate passion or prejudice, or an improper conception of the measure of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. @=>132.]
    Appeal from District Court, El Paso County ; P. B. Price, Judge.
    Action by C. E. Hargrave against the At-chison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed, and motion for rehearing overruled.
    Turney & Burges, of El Paso, Terry, Cavin & Mills and John G. Gregg, all of Galveston, and Goldstein & Stiller, of El Paso, for appellant. Bobt. T. Neill and Brown & Terry, all of El Paso, for appellee.

       Writ of error pending in Supreme Court.

   WALTHALL, J.

Appellee, O. E. Har-grave, instituted this suit in the district court of El Paso county against appellant, the At-chison, Topeka & Santa Fé Bailway Company, for damages for personal injury sustained by him by reason of the loss of the sight of his right eye while in the service of the company as a brakeman, and while engaged in the handling for it of interstate commerce. The case was tried before a jury-on two allegations of negligence, the first alleging that he gave to the engineer a signal which required an ordinary stop of the train, but that the engineer, instead of making an ordinary stop, negligently made an emergency stop, resulting in the rear car and the one on which appellee was riding being jerked loose from the remaining cars, the air hose connecting said cars being torn loose, the air in the hose caused to rush therefrom and throw sand and' rust from said hose or the ground into appellee’s eyes. The second allegation of negligence charges that shortly thereafter, and at another time and place, while the train was going through the station of Pinevita, and while appellee was on the top of the cars, and while going toward the engine of the train, the engineer or fireman sanded out the flues of the engine, whereby particles of hot sand coming therefrom were thrown into appellee’s face and into his eye, thereby causing injury. Plaintiff alleged the complete loss of the sight of his right eye. Appellant answered denying each allegation of negligence, and pleaded assumed risk and contributory negligence. The trial resulted in a verdict and judgment for appellee.

In the eleventh paragraph of the trial court’s general charge, the jury are instructed as follows:

“If you believe from a preponderance of the evidence that on or about October 22, 1913, the plaintiff was directed by the defendant to go on one of defendant’s freight trains as a brakeman, and did g’o on said train in such capacity from Winslow, Ariz., to Seligman, Ariz., and that after leaving Flagstaff, but before reaching Seligman, and shortly before reaching the station of Pinevita, the plaintiff got out on the top of the cars in the performance of his duties, under the rules of the defendant, and that, after he had performed his duty on the top of said cars, was going towards the engine, where the rules of the company required him to go, and the engineer or fireman knew that plaintiff was on top of said cars, and that, without any warning or notice to plaintiff, the engineer or fireman proceeded to sand out the pipes or flues, which caused the engine through its smokestack to emit hot sand, and as a result great quantities of hot sand or particles of hot sand were thrown and hurled into plaintiff’s face, and into his right eye, and if you believe from the evidence that it was negligence for the engineer or fireman to sand out said flues or pipes under all the circumstances, if they did so sand out said pipes and flues, and that such negligence on the part of the defendant’s engineer or fireman, if it was negligence, proximately caused plaintiff’s injury, your verdict will be in favor of plaintiff.”

The defendant objected to this paragraph of the charge as a basis for negligence, the evidence showing that plaintiff knew that it was his duty to go on top the cars at the time and place he did and take station thereon, and knew that the flues of the engine might be sanded out at any time and place when same, in the judgment of the fireman and engineer, became necessary, and that it was the usual and customary proceeding to sand out said flues or engine at any place or at any time where it appeared to said fireman or engineer to be necessary and proper, and, such being the rule of the company to which plaintiff subscribed and the common, ordinary, and usual practice established by the evidence, plaintiff would have no cause for damage -for the doing of it. Defendant under this assignment makes the proposition that negligence cannot be predicated upon the doing of an act by the operatives of a train where such act is necessary in the operation of the train and was done in the usual and customary manner.

The appellant’s first and second propositions under this assignment all depend upon the question of fact, as to the necessity for sanding out the engine flues at the time they were sanded out, and the appellee’s knowledge of the fact of the necessity for so doing. None of the witnesses testified that it was necessary to sand out the flues just at the time and place the evidence shows they were sanded out, or that the appellee knew that a necessity had arisen for them to be’sanded out. The evidence shows that it was their duty and the custom for the engineer and fireman to perform that service when, in their judgment, it was necessary to be done, and that appellee knew that such was their duty, and that it was eustomery for them to perform that duty, but there is no evidence that the appellee, the brakeman, whose duty, under the rules, called him to the place he was, knew that a necessity had arisen or would likely arise for the sanding out the engine flues while he was on top of the cars and in a position of danger from the hot sand emitted from the flues when sanded out. We think that to place appellee on top the cars in the discharge of a duty, and then to bring about an extra risk to him on the ground of necessity, the evidence should be at least satisfying that the necessity had arisen, and that appellee knew of it. It would not, it seems to us, be sufficient to simply show that it was convenient to sand out the flues at that time, but that, an actual necessity had arisen.

Appellant’s first two propositions under this assignment are clearly without the evh dence necessary to invoke the legal propositions contained in them. The evidence goes no further than to show the duty to sand out the engines when necessary, and that such was the custom. The witnesses Draper and Sawyer, the engineer and fireman on the train, did not even remember sanding out the engine at the time and place appellee was injured, and made-no statement to the effect that it was necessary to then do so, and that the engine flues were then sanded out because of the necessity. The third proposition under this assignment, it seems to us, is not germain to the assignment, and is here raised for the first time. We think, however, the evidence of the' physician that a corneal ulcer, such as he found plaintiff had, could be produced by injury and infection, would be sufficient to justify the charge. The assignment is overruled.

Objection was made and a proper bill of exception taken to the sixth paragraph of the court’s general charge submitting to the jury the question of negligence in applying the emergency air under the circumstances stated in the charge, thereby causing the train to come to a sudden stop, and the air hose to part, and the appellee, in anticipation of and fearing the shock about to result from the application of the air brakes, jumped or stepped down from the ladder on the car, when the air hose came apart, and the air released with force, with the result that particles of rust, dirt, or other foreign substances in the air brakes or train line pipes or dust or sand from the earth were discharged or blown into appellee’s face and into his right eye, thereby causing injury. Appellant claims that it is error for the court to submit such issue of negligence, where the strongest evidence upon such issue showed that there was an occurrence which could have been caused by an emergency application of the brakes, where the party in charge of the brakes testified that no such application was made, where the undisputed evidence showed that the same result could have been due to other causes, and where ap-pellee, the only witness for himself, testified he did not know that the engineer had made the emergency application; that a person, though guilty of a negligent act, is only responsible for consequences proximately caused, and which could reasonably have been foreseen; that it would be requiring an engineer to be more than human to hold that in applying the brakes to his train he could foresee that a brakeman would descend from the ear, the drawbar be pulled out, the hose be broken, and thereby foreign substances be thrown into the eyes of a person standing near. It would extend this opinion to too great length to quote the evidence on the facts testified to and submitted by the court in his charge on this assignment of negligence. The only controversy pn the sufficiency of the evidence on the facts submitted arises on the question as to whether the engineer applied the emergency air. Appellant testified that:

He gave the engineer the easy signal; that is, the ordinary stop. “He [the engineer] stopped all at once, and the air went into the emergency, and it caused the car I was riding on to pull the drawbar out of that car. When you give a signal which is known, as the ‘dynamite’ signal, as the boys call it, you jump out and commence waving your hands, meaning for you to stop right there, which is sometimes referred to by railroad men as a washout or dynamite signal. Now, I gave this signal (indicating the easy signal), and he stopped the train, and the air went into the emerg'ency. * * * I do not know that he threw the air into the emergency, but I know the air went into the emergency, because I could hear it and tell what it was. * * * You can hear the application of the air, and I heard it. * * * Yes; I say the air was put in emergency; I don’t know whether the engineer applied the air or not. It might have been caused from something else. It could have been caused by a defective triple valve. We hadn’t had any trouble on this trip with the triple valve; it had worked all right.”

The engineer, Bressford, testified that be received the ordinary stop signal and applied the air in the usual manner by making a service application of the air, drawing off the air from the train line, and stopping the train. Other witnesses testified to the use made of air in the air and train line. The use made of the air and its effect upon the train were questions of fact for the jury to determine. The issues of fact submitted in the paragraph of the charge were pleaded. We think the evidence was sufficient to submit to the jury the question as to whether an emergency application of the air was made, its effect upon the train, and whether the facts found constituted negligence and proximate cause. The case was submitted upon two issues of negligence, and the jury returned a general verdict in favor of the appellee. The evidence shows that the ap-pellee’s eye was partly injured on each of the two occasions. The assignment is overruled.

Appellant’s third, fourth, and fifth assignments complain of the failure of the court to submit special charges presented Objection is made to a consideration of these assignments becáuse the bills of exceptions taken to the action of the trial court in refusing to submit the charges do not show that the charges were prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge of the court was given to the parties or their attorneys for examination, as required by articles 1973, 1974, and 2061, Rev. St., as amended by chapter 59, Acts 33d Leg. The articles of the statute referred to require that this be done; otherwise the ruling of the court in refusing to give the requested charge is regarded as approved. As said by the sixth Court of Appeals in St. Louis Southwestern Railway Co. v. Wadsack, 166 S. W. 42, the effect of the amendments to the articles referred to is to place the rulings of the trial court in giving or refusing charges in the same category with other rulings not appearing of record as to the formalities required for their consideration on appeal, and appellate courts can now no more review the action of the trial court in giving or refusing charges than they can the rulings admitting or excluding testimony without proper bills of exception. Gulf, T. & W. Ry. Co. v. Dickey, 171 S. W. 1097; Ratliff v. Wakefield, etc., Co., 172 S. W. 198; Eldridge v. Railway Co., 169 S. W. 375; Floegge v. Meyer, 172 S. W. 194. This court so held in Atchison, Topeka & Santa Fe Railway Co. v. Skeen, 174 S. W. 655. For reasons stated, assignments 3, 4, and 5 cannot be considered.

On trial of the case plaintiff’s attorney in his argument to the jury used the following language:

“That, while I have to treat this case in a very general sort of way, I hope I shall not treat the same as superficially as the defendant treated it in the beginning at Winslow, Ariz.; that I will not treat it as superficially as the defendant’s doctors did treat it, as Dr. Simpson said he only made a superficial examination of the eye at Winslow, Ariz., and I am not going to make any such superficial treatment of the case.”

Appellant’s sixth assignment complains of this remark. The trial court, in approving the bill of exception taken, explains that the remarks of counsel were used in connection with the testimony of Dr. Simpson. Dr. Simpson was a witness for defendant. The witness said that he lived in Winslow, Ariz.; was a consulting physician for the defendant’s hospital; does not claim to be an eye specialist; saw plaintiff when he came for treatment; his eye was diseased — badly inflamed. Witness examined plaintiffs eye superficially, found it inflamed, discovered that some one had seen the eye before witness had, and had either taken out some foreign body or attempted to; advised plaintiff to go to the hospital in Los Angeles for certain treatment; and offered to get him the necessary admission, transportation, etc. What we have stated from Dr. Simpson’s evidence is not all he said, but enough to show the reference in the remark. One of the issues presented by the pleadings and submitted to the jury by the ’court on the trial was a charge of negligence in the treatment of plaintiff’s eye. No reversible error is shown, and the assignment is overruled.

Appellant complains that the verdict and judgment for $10,000 is excessive. The evidence shows that prior to the injury plaintiff was in good health, 38 years of age, had been in the railroad service many years, and in the train service as brakeman since 1907, and earning from $125 to $145 per month. The evidence showed that plaintiff suffered intensely from the effect of the injury to his eye, and sustained a loss of the sight of his right eye, with a minimum of danger as to the left eye. We cannot say that the verdict is so large as to show an abuse of the discretion left to the jury to fix the amount of the loss; nor does the damage awarded indicate passion or prejudice or an improper conception of the measure of damages on the part of the jury. .

The case is affirmed.

On Rehearing.

Appellant complains of the action of this court in refusing to consider its third, fourth, and fifth assignments of error over objections made that the bills of exception taken to the action of the court in refusing to submit the charges do not show that the special charges were prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination, and says :

“We do not believe that any court has gone as far in refusing to consider assignments as was done in this case.”

Counsel, in preparing the motion, has evidently overlooked article 1973, Revised Statutes, as amended in 1913, referred to in the opinion, the latter part of which reads as follows :

“Such instructions [prepared by counsel after receiving the court’s general charge], shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

The Court of Civil Appeals for the Third District, after commenting on this provision of the law, in Floegge v. Meyer et al., 172 S. W. 194, said:

“The bill, we think, is fatally defective in failing to show that the special charge was requested before the charge of the court was read to the jury, and is further defective in failing to show that such special charge was submitted to opposing counsel for their consideration, as abovb indicated, for which reason this assignment cannot be considered by us.”

The Fourth Court of Civil Appeals, in International & G. N. Ry. Co. v. Jones, 175 S. W. 488, said:

“There is nothing in the bill of exceptions indicating that the issues were ever submitted to counsel for appellees, and the assignment could not be considered.”

The motion is overruled.
      @=>For other cases see same topic and KEY-NUMBER in al! Key-Numbefed Digests and Indexes


author: RAINEY, 0. J.

text:
    McGOWAN v. EUBANK.
    (No. 7382.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.)
    1. Beokehs <@=361 — Right to Compensation —Failure to Complete Contract.
    That a broker, employed by defendant to procure a purchaser for land, knew that defendant’s title to the land was defective, did not defeat his right to commissions, where he procured a purchaser but the purchaser refused to take such defective title, if defendant agreed with the broker to cure the defect in the title before the contact was made.
    [Ed. Note. — ofor other cases, see Brokers, Cent Dig. §§ 77, 78, 92, 9S; Dec. Dig. <@=361.]
    2. Brokers <@=301 — Right to Compensation —Failure to Complete Contract.
    Where defendant contracted to convey land clear of debt to a purchaser procured by a broker, an unpaid note given a former owner of the land for the purchase price was an indebtedness which defendant was bound to discharge, and, failing ft) do this, the purchaser had the right to refuse to comply with the contract.
    [Ed. Note. — For other cases, Cent. Dig. §§ 77, 78, 92, 93; 61.] see Brokers, Dec. Dig. <@=>
    Appeal from Hill County Court; J. B. Stephenson, Judge.
    Action by Matt McGowan against Jim Eu-bank. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    T. H. Jackson, of Hillsboro, for appellant.
   RAINEY, 0. J.

Appellant, a real estate broker, sued appellee for services in procuring a party ready and willing to exchange property, which exchange was not consummated because of the lack of title in appellee. The cause was tried without a jury, and judgment was rendered for appellee, from which this appeal was taken.

Appellant procured one Elias Holt to contract to exchange land with appellee, which was agreed to by appellee, who contracted to convey his land clear of debt. Holt, after investigation, concluded the title was bad and refused to make the exchange, because the title was bad to one of appellee’s lots.

The theory urged by appellee to the right of recovery was that appellant knew the title was defective, and he thereby took the chances of consummating the exchange of the property. Berg v. Street Railway Co., 49 S. W. 929. But this defense will not prevent a recovery if appellee agreed with appellant to free the lot from debt before the contract was made, and there was a debt on the lot and the appellee did not .discharge it.

All the witnesses speak of the title to one of appellee’s lots as being bad, but fail to show in what particular it is defective, except in one instance where one witness says the railroad company,, about 30 years ago, sold one of the lots for $25 cash and note for $75, which is not shown to have been paid. If said note had never been paid, it was an outstanding indebtedness, which appellee under his contract was bound to discharge, and, failing to do this, Holt had the right to refuse to comply with the contract of exchange, and if this was the only defect in the title appellant was entitled to recover.

If there was any other defect in the title, the statement of facts does not definitely show it, nor does it show that appellant knew of any other defect in the title. In the state of the evidence, we do not feel justified in affirming the case, nor in rendering it for appellant. Therefore we have concluded to reverse the judgment and remand the cause for a new trial.
      <@=3Ror other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: TA.LBOT, J.

text:
    MIMS v. FOSTER et al.
    (No. 7386.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.)
    Appeal and Error <@^407 — Perfection of Appeal — Mode.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2092, provides that service of citation in error shall be made by delivering to the defendant or defendants in error in person a copy of the citation. Article 2095 provides that, if it appears from the return of the sheriff or constable that the party cannot be found in the county of his residence, the citation in error shall direct the officer to summon the defendant by making service on his attorney of record. Citation in error was served directly upon the attorney of record for defendants in error, but it did not appear from the return of the officer that he was unable to serve defendants. Held that, where defendants did not appear or waive service, the appellate court was without jurisdiction, and the writ must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2120, 2128-2132: Dec. Dig. <S=?407.]
    Error from Kaufman County Court; James A. Cooley, Judge.
    Action between L. C. Mims and Jess Foster and others. There was a judgment for the latter, and the former brings error.
    Dismissed.
    Ross Huffmaster and Wynne & Wynne, all of Kaufman, for plaintiff in error.
   TA.LBOT, J.

This cause must be stricken from the docket of this court. The record discloses that the defendants in error are three in number, namely, Jess Foster, P. C. Letcher, and E. F. Morrow, and that all of them reside in Kaufman county, Tex., where the judgment in the cause was rendered, and that a copy of the citation in error was served directly on their attorney of record, and does not show why service was not had upon the defendants in error themselves. Article 2092 of Vernon’s Sayles’ Civil Statutes prescribes that service of citation in error shall be made by delivering to the defendant in error, and, if more than one, then to each of them, in person, a true copy of the citation. In article 2095 of said statute it is provided that, if it appears from the allegations in the papers of the cause that the party is a nonresident of the state, or if it appears from the return of the sheriff or constable that the party cannot be found in the county of his residence, the citation shall direct the officer to summon the defendant,by making service on his attorney of record, if there be one. It does not appear from any return of the sheriff or constable of Kaufman county, or otherwise, that an effort was made to secure service on defendants in error as required by law, and that they could not be found in said county. In this condition of the record it must be held that the service had of the citation in error upon the attorney of the defendants in error was unauthorized and insufficient, and, the defendants not having waived service nor appeared, this court has no jurisdiction. Adkins v. Forehand, 10 Tex. 270; Hughes v. Burleson, 10 Tex. 290; Oge et al. v. Froboese et al., 63 S. W. 654; National Cereal Co. v. Earnest, 84 S. W. 1101; Aspley v. Alcott, 90 S. W. 886. Again, the writ of error directs the sheriff to summon the defendants in error, and in such case there is no service if the writ is served on the attorney. McCloskey et al. v. McCoy, 89 S. W. 450.

It follows that the cáse must be stricken from the docket of this court; and it is so ordered.
      <@r»For other ceses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    M. ALEXANDER & CO. v. FLETCHER & WHITFIELD.
    (No. 7383.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.)
    1. Appeal and Error @=499 — Reservation op Grounds oe Review — Exceptions to Evidence.
    Where bills of exception did not show what objection was urged and sustained to the introduction of evidence, assignments of error, predicated upon the exclusion of such evidence, could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. @= 499.]
    2. Trial @=350 — Submission oe Special Issue-Point Not Issuable.
    In an action by a partnership for the price of goods sold, where undisputed evidence showed that a certain person deceased had owned a one-half interest in the firm, the refusal of the trial judge to submit a requested special issue as to the extent of the interest of such person in the firm was not error; the fact not being at issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=850.]
    3. Appeal and Error @=742 — Briefs—Assignments oe Error — Propositions and Statements.
    Where neither of two assignments of error was briefed as a proposition, no proposition was made thereunder, and no statement of the evidence adduced on trial in support of the contention made was subjoined to either of them, such assignments were not presented for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. @=742.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by Fletcher & Whitfield against M. Alexander & Co. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Ed. R. Bumpass, of Terrell, for appellant. Dashiell & Coon, of Terrell, for appellee.
   TALBOT, J.

Appellee, Fletcher & Whitfield, sued the appellant, M. Alexander & Co., in the justice court of precinct No. 3 of Kaufman county, Tex., upon an account for the sum of $131.43 and recovered a judgment therefor. Appellant appealed to the county court of Kaufman county, Tex., and upon a trial before a jury on special issues a judgment was rendered upon said account for the appellee. Appellant filed a motion for a new trial, and, same being overruled, he perfected an appeal to this court. Appellee’s cause of action was for goods, wares, and merchandise, and the appellant did not controvert the account that he had purchased the items mentioned, but pleaded: (1) General demurrer; (2) general denial; (3) that the defendant is a firm name, but is owned and operated by this defendant, M. Alexander; that for years past one of the plaintiffs, J. B. Whitfield, owed this defendant’s company in various amounts for groceries and other items purchased by said J. B. Whitfield of this defendant to maintain himself and family, and that the said J. B. Whitfield on or about April 30, 1912, was in debt to this defendant for goods, wares, and merchandise in the sum of $206, and was so known to each member of plaintiff’s firm, and that on April 30, 1912, this defendant purchased of the said plaintiff a one-horse delivery hack and other small items of merchandise amounting to $131.45 (account sued upon); that plaintiff and defendant were merchants, each transacting business with the other, and that he credited J. B. Whitfield on his account for said amount, and that same was made at the instance and request of the plaintiffs and each of them, and it was understood and contracted by them at said time by and between said plaintiff and this defendant that said item of $131.45 (said wagon and other small items) should be credited on said account due by said J. B. Whitfield to this 'defendant; that no objection was raised by either member of said plaintiff’s firm until a short time before suit was filed hereon; that the said defendant gave tlie said plaintiff credit for said amount, leaving the said J. B. Whitfield due this defendant the sum of $74.55 as per April 30, 1912, which has not been paid, and it was understood and contracted between the parties hereto that said credit should be applied in that way; that said plaintiffs furnished a statement of said account sued upon, amounting to $131.45, to this defendant, and credit was allowed on said account of J. B. Whitfield for said amount, and was so known, understood, and sanctioned by the other member of the firm of plaintiffs, and nothing was ever said or done otherwise until a short time before the filing of this suit and since the demise of the said J. B. Whitfield; that after said date the said J. B. Whitfield continued to trade and to make an account with said defendant up to the time of his demise, the 14th day of December, 1912; that on or about November 25, 1912, the said J. B. Whitfield paid this defendant again on said account the further sum of $50 by check and $25 in cash, leaving a balance due by said J. B. Whitfield to this defendant of $141.50; said amount is still due and unpaid, and all offsets, credits, counterclaims, and payments of any and all kinds have been allowed, including the amount sued for by plaintiffs in this cause, as pleaded above; that said account sued upon is not just, due, or unpaid, but that same has been paid and satisfied by allowing the credit as above indicated, which was ratified by the other member of the firm, and that the said Fletcher, party plaintiff herein, is now estopped from setting up said claim by indorsing said transactions and ratifying same; that had he not indorsed or ratified said purchase of this defendant of the plaintiffs for said wagon and other small items, he could have collected said claim in whole, or if he had ever objected to said credit during the lifetime of the said J. B. Whitfield, he could have collected same.

In the county court appellee filed a trial amendment, alleging that since the commencement of this suit, he, as surviving partner of the firm of Fletcher & Whitfield, sold, conveyed, and delivered all of the assets of said partnership, including stock, fixtures, notes and accounts, and ehoses in action, particularly including this suit, to the W. D. Fletcher Saddlery Company. Wherefore he prays that the said W. D. Fletcher Saddlery Company be permitted to prosecute this suit in its name, or that he be permitted to prosecute this suit for the use and benefit of the W. D. Fletcher Saddlery Company, whichever the court may see proper to do. By supplemental answer defendant alleged that J. B. Whitfield, heretofore mentioned in his previous answer, was a member of the firm of Fletcher & Whitfield, and as such was entitled to one-half of the profits, and sustained one-half of the loss, and that said J. B. Whitfield is deceased, and his estate is insolvent, and if he has not allowed credit as pleaded by him in his original answer, he will lose his debt, or a part thereof; that the W. D. Fletcher Saddlery Company, who now prosecutes this suit, is a firm, and one member thereof, W. D. Fletcher, is the same W. D. Fletcher mentioned in the original petition, and at the time they acquired the claim sued upon by plaintiff herein, by purchase or otherwise, they had notice of the claim of defendant as originally pleaded by him herein.

The first assignment of error charges that the court erred in refusing to allow the appellant to introduce in evidence a stated account the defendant had against J. B. Whitfield, said account showing credit and payment for the bill sued upon by plaintiff, and the second is that the court erred in not permitting M. Alexander to testify that he had had business dealings with the plaintiffs for a period of many years, that they had mutual accounts between one another, and at times he would owe the firm of Fletcher & Whitfield, and J. B. Whitfield would owe his firm, and that they always adjusted the mutual accounts between plaintiff and defendant by defendant giving J. B. Whitfield credit for anything that defendant may be due the plaintiff. Appellee objects to a consideration of these assignments because the bills of exception reserved to the court’s rulings do not show what objection was urged and sustained to the introduction of the evidence. The objection is well taken, and the assignments cannot be considered. It is well settled that a bill of exceptions to the exclusion of evidence which fails to show the objection made to its 'ntroduction is fatally defective, and will not be considered on appeal, and, likewise, that an assignment of error based on such a bill will not be considered. Railway Co. v. Blocker, 138 S. W. 156; Hill v. Hanan & Son, 146 S. W. 648; Stratton v. Riley et al., 154 S. W. 606; Progressive Lumber Co. v. Marshall & E. T. Ry. Co. (Sup.) 155 S. W. 175.

The third assignment of error asserts that the court erred in refusing to submit, at the request of the appellant for the determination of the jury, the following issue, to wit: “What interest had J. B. Whitfield in the firm of Fletcher & Whitfield, plaintiff herein?” There was no error in this action of the court. The trial judge in refusing to submit this issue gave in writing as his reasons therefor that it was not an issuable fact in the case, and this conclusion of the judge is supported by the record. The undisputed evidence shows that J. B. Whitfield, as a member of the firm of Fletcher & Whitfield, owned an equal one-half interest in the firm’s assets and business. There was therefore no error in refusing to submit the question to the jury.

The fourth and fifth assignments of error assert that the judgment of the trial court is contrary to the law and evidence in the case in the respective particulars therein stated, but a consideration of them is objected to by appellee, and the objections must be sustained. Neither of the assignments is submitted as a proposition, no proposition is made thereunder, and there is not subjoined to either of them any statement whatever of the evidence adduced on the trial in support of the contention made. But if the assignments were properly briefed, they could not, we think, be sustained. The case, as heretofore shown, was submitted to the jury on special issues, and every material issue arising on the pleading and evidence was found by the jury, upon evidence warranting such findings, against appellant.

The judgment is affirmed.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, G. J.

text:
    W. H. NORRIS LUMBER CO. v. HARRIS.

    (No. 5491.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    Rehearing Denied June 25, 1915.)
    1. Logs and Logging <§=>3 — Contracts — Action for Breach—Sufficiency of Evidence.
    In an action to recover money advanced to defendant, under a contract by which plaintiff was to market defendant’s stock of lumber and the output of his mill for one year, and to advance money to carry on defendant’s business, on defendant’s order, when necessary for his pay rolls, etc., in which defendant by cross-action set up the contract, and alleged plaintiff’s breach thereof to his damage, evidence held sufficient to show that plaintiff’s refusal to comply with the terms of its contract had damaged defendant in the sum of at least $7,000, the amount found by the jury.
    [Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig.

      2. Appeal and Error <§=>742 — Assignments c® Error — Sufficiency.
    In an action to recover money advanced on a lumber contract, wherein defendant by cross-action claimed damages for plaintiff’s breach, and there was an affirmative verdict for defendant, an assignment of error “because the verdict of the jury is not sustained by sufficient evidence,” followed by the proposition that “the evidence does not show there was a breach.of the contract on the part of the plaintiff,” did not require the appellate court to search the record to find some error which the assignment failed to indicate; and an assignment of error “because there was no competent evidence in the record to support a finding for damages in favor of the defendant and against this plaintiff on his cross-action,” followed by a proposition that “no evidence was presented or offered showing damages that are recoverable for the alleged breach of the contract,” was too indefinite to inform the court as to the respect in which the plaintiff desired to attack the verdict.
    [Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    3. Damages <§=>40 — Breach of Contract — Profits.
    Profits of a lumbering business to be conducted by defendant, and which were in the contemplation of the parties when plaintiff’s contract to advance money to carry on the business was executed, and which the evidence shows would probably have accrued from the contract if it had not been breached by plaintiff, were recoverable by defendant.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. <®=>40.]
    4. Appeal and Error <§=>757 — Assignments of Error— Motion for New Trial.
    Assignments of error not shown by the brief to have been embodied, in the motion for a new trial will not be considered.
    [•Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. <§^757.]
    5. Appeal and Error <§=>742 — Assignments of Error — Statement.
    References to a statement of facts do not constitute statements under the assignments of error within the requirements of the rules.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    Error from District Court, Trinity County; S. W. Dean, Judge.
    Action by the W. H. Norris Lumber Company against J. R. Harris, with cross-action by defendant. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    N. C. Abbott, of Houston, and R. E. Minton, of Groveton, for plaintiff in error. C. W. Nugent, of Conroe, and Nelms & Platt, of Groveton, for defendant in error.

       Writ o£ error pending in Supreme Court.

   ELY, G. J.

This is an action instituted by plaintiff in error against defendant in error, the parties being designated herein as plaintiff and defendant, to recover the sum of $2,-206.94, alleged to be money advanced .to defendant under the terms of a certain contract by which plaintiff obligated itself to market the entire stock of lumber then on hand and the output of defendant’s mill for a period of one year from January 1, 1914; that by said contract plaintiff agreed to advance to defendant the money necessary to carry on his business, not to exceed $7,500 at any one time, $3,500 of which was to be advanced at the date of the contract, and $2,500 to take up a note which defendant owed, said money to be advanced only when necessary, and on the order of defendant, “none to be drawn except where absolutely necessary to pay the pay rolls and commissary bills.” Plaintiff also alleged a breach of the contract on the part of defendant on his refusal in September to deliver the lumber to plaintiff as stipulated in the contract. A lien on all of defendant’s property was alleged, and foreclosure of the lien was prayed for by plaintiff.

Defendant set up a cross-action against plaintiff alleging the execution of the contract on or about December 27, 1912; that defendant was operating a sawmill and planer and a tramroad, with which to haul logs from the forest to the mill; 'that said mill could not be successfully operated without the aid of said tramroad and the rolling stock thereon; that said mill was being operated successfully, and so long as plaintiff complied with its contract, that is, until about May 1,1913, defendant made an average profit of $1,000 a month; that said contract was made because defendant needed financial assistance to operate his mill and lumber business; that it was intended by said contract that plaintiff would furnish the funds necessary to run said business for one year, not exceeding at any one time $7,500, which plaintiff failed and refused to do, and deliberately breached the contract, to defendant’s damage in the sum of $7,000, less the sum of $2,206.94, which defendant owed plaintiff. He prayed for judgment for $4,793.06, with interest from December 27, 1913, at the rate of 6 per cent, per annum. The cause was submitted to the jury on special issues, as follows:

“No. 1. Did the plaintiff herein, the W. H. Norris Lumber Company, keep the defendant, J. R. Harris, supplied with orders during the life of the contract pleaded?
“No. 2. Did the plaintiff, the W. H. Norris Lumber Company, advance to the defendant, J. R. Harris, such sums of money as was needed by him properly to carry on his business from the 1st day of January, 1913, to the 31st day of December, 1913, and did the said W. H. Norris Lumber Company advance to the said J. R. Harris, when necessary, upon the order of said J, R. Harris, amounts absolutely necessary to pay the pay rolls and commissary bills, keeping such indebtedness within the sum of $7,500 at all times, and notice of the plaintiff to defendant on demand to advance that it would not furnish necessary money or any money for labor for removing the tramroad was equivalent to refusing to furnish money for a pay roll already made or incurred?
“No. 3. If you answer the two foregoing special issues in the affirmative, then you need answer no further, but, if you answer either or both of the foregoing special issues in the negative, then you will answer the following special issue: What, if anything, do you find that the defendant, J. R. Harris, had been damaged by the breach of said contract as pleaded by him, and established by the preponderance of the testimony?”

The first and second issues were answered in the negative, and the answer to the third was $7,000. On those findings the court rendered judgment for defendant in the sum of $4,793.06.

On December 27, 1912, plaintiff and defendant entered into a contract, in substance that plaintiff bound itself to receive and market the lumber on hand and the entire output of defendant’s mill for one year from January 1, 1913, agreeing to pay therefor the full market price, less $1.50 per 1,000 feet, which plaintiff was to retain for its services, to keep defendant supplied with orders, aDd to advance to defendant such sum of money as may be needed to carry on his business, not exceeding at any one time $7,-500, in sums as follows: $3,500 cash on execution of the contract, $2,500 during February, 1913, to pay a note which defendant owed a bank, the note to be assigned to the plaintiff; the balance of the $7,500 to be advanced when necessary on the order of defendant, “stating object and purpose thereof, with the understanding that none should be drawn except where absolutely necessary to pay pay rolls and commissary bills.” In the prosecution of the lumber business, about June 1, 1913, it became necessary to move the tramroad, which led to territory denuded of timber, to other timber, at an expenditure of $750. Plaintiff refused to advance that sum of money. At that time defendant had on hand 700,000 feet of lumber, of which 500,000 was in condition for market. Plaintiff gave only three orders for lumber in June, and the only advance made by it after June 1st was $400. No lumber was manufactured after June 1st by defendant, because of the refusal of plaintiff to advance the money to move the tramroad. Defendant could have moved the road with no expenditure of money, except the pay of the men who moved it; no additional material being needed. Defendant had a sufficient supply of timber to manufacture lumber for the remaining seven months of the year, but could not run his mill, because plaintiff failed and refused to advance the money, as it had contracted to do. Defendant had not exceeded the $7,500 contract limit. Defendant had no money, and could get none, because plaintiff had a mortgage on all his property. Defendant fully complied with all the terms of the contract. The average profit of defendant during the five months of 1913, was $1,000 a month, and he would have made at least that much for the remaining seven months if plaintiff had not breached the contract. Plaintiff fully understood all matters appertaining to defendant’s business, and knew that he would be compelled to move the tramroad, which was the only means for conveying the logs to the mill. The evidence was sufficient to show that plaintiff’s refusal to comply with the terms of its contract damaged defendant in the sum of at least $7,000, the amount found by the jury.

The first assignment of error is:

“Because the verdict of the jury is not sustained by sufficient evidence.”

That is as general as an assignment of error could well be, and yet not more so than the only proposition, which is:

“The evidence does not show there was a breach of the contract on the part of the plaintiff.”

No intimation whatever is given in the assignment of error or proposition as to the particulars in which the evidence fails to show a breach of the contract. No duty devolves upon an appellate court to search the record to find, perchance, some error which the plaintiff fails to indicate.

The second assignment of error is:

“Because there was no competent evidence in the record to support a finding for damages in favor of the defendant, and against this plaintiff, on his cross-action.”

The elucidation of this indefinite assignment of error by proposition is:

“No evidence was presented or offered showing damages that are recoverable for the alleged breach of the contract.”

What point as to the evidence is desired to be presented by that proposition? In what respect did the evidence fail to show damages recoverable for a breach of the contract? Is the attack made upon the sufficiency of the evidence to show damages, or did it show damages which did not proximately result from the breach? Or was there a failure to prove a proper measure from which damages could be calculated? This court does not know in what respects plaintiff desires to attack the verdict in the two assignments of error, but from a consideration of the evidence has reached the conclusion that the evidence showed a breach of the contract, and that the damages found by the jury resulted therefrom.

The third assignment of error is overruled-. There was no uncertainty as to the damages sustained by defendant. Profits, of which a person has been deprived by the fault of another, are not always speculative and remote, but in certain instances form a firm and enduring base for a claim for damages. Clearly the profits out of the business to be conducted by defendant were in contemplation of the parties when the contract was executed. There could have been no other valid reason for making the contract, and, if plaintiff by its breach of the contract destroyed the profits which the evidence shows would probably have accrued from the contract, defendant should recover. Calvit v. McFadden, 13 Tex. 326; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Railway v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Fraser v. Chalmers, 9 Tex. Civ. App. 210, 28 S. W. 714; Henry v. McCardell, 15 Tex. Civ. App. 497, 40 S. W. 172; Howard v. Stillwell Mfg. Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; Weston v. Railway, 190 Mass. 298, 76 N. E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825; Wells v. Association, 99 Fed. 222, 39 C. C. A. 476, 53 L. R. A. 33, and notes.

In the cited case of Howard v. Stillwell, the Supreme Court, after stating tliat, as a general rule, profits prevented by a breach, of a contract cannot be recovered, field:

“But it is equally well settled that the profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into.”

In the present ease there can be no doubt that profits arising out of the business of manufacturing lumber were within the intent and mutual understanding of plaintiff and defendant. If, as the United States Supreme Court holds, the recovery of profits is permitted only in certain cases which are exceptions to the general rule, the facts of this case bring it clearly within the compass of the exception.

The Arkansas case of Ford Lumber Company v. Clement, 97 Ark. 522, 135 S. W. 343, was one involving a lumber contract, and the court, in affirming a verdict of $9,000 based on lost profits, held:

“Where plaintiff entered into a contract to perform certain work for the defendant, which he was prevented from doing by the fault of defendant, plaintiff is entitled to recover the profits which the evidence makes reasonably certain that 'he would have made had defendant carried out its contract.”

The evidence in that case as to the profits was no clearer nor more satisfactory than in this.

The assignments of error from the fourth to the twenty-second, inclusive, are prepared without any consideration for rules whatever. If either of them were embodied in the motion for new trial, the brief fails to indicate it, and there is not a statement made under either of the assignments of error that complies with the requirements of the rules.' References to a statement of facts do not constitute statements under the assignments. The assignments will not be considered.

The judgment is affirmed.
      <®=jEor other oases see same topic and KEY-NXJMBBR in all Key-Numbered Digests and Indexes

      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HASSELL.
    (No. 7304.)

    (Court of Civil Appeals of Texas. Dallas.
    May 15, 1915.
    Rehearing Denied June 12, 1915.)
    1.TRIAL &wkey;>140 — INJURY TO PASSENGER — -EVIDENCE — Juey Question.
    ■ In- an action for personal injury to a passenger, though plaintiff, who gave the principal testimony as to his injuries, admitted that in settling a prior claim against a different railroad company he misrepresented Ms injuries, his credibility is still for the jury, and a verdict for him will not be disturbed on the ground that his testimony was not sufficient.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. &wkey;140J
    2. Appeal and Error <&wkey;548 — Bill oe Exceptions — Necessity. '
    Assignments of error complaining of the admission- of evidence cannot bs considered where there is no bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dee. Dig. <&wkey;> 548.]
    3. Carriers <&wkey;321 — Carriage oe Passengers — Actions—Instructions.
    Plaintiff claimed that as he was entering defendant’s train he was thrown down the car steps by the brakeman, although he had a ticket. The defendant denied plaintiff’s allegations and pleaded contributory negligence, in that plaintiff was carrying grips in both hands. The court charged that plaintiff had the right to board the train, so long as he was not interfering with other passengers, and that, if in attempting to board the train when the car steps were vacant the brakeman pushed or jostled him and -he was injured, verdict should be for plaintiff. Held, that,' in view of the pleadings, the charge could not be held erroneous, on the ground that, at the time when plaintiff attempted to enter, the brakeman was assisting a lady and several small children, and that he prevented plaintiff from entering for that reason.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. &wkey;321.]
    4. Carriers <&wkey;321 — Carriage oe Passengers — Instructions.
    In view of the charge that, if other persons were ahead of plaintiff and the brakeman shoved him back, there could be no recovery for injuries which he would not have received except that plaintiff was incumbered with suit eases, a charge that though the brakeman believed plaintiff was under the influence of whisky, or plaintiff attempted to board the train while the brakeman was assisting' a lady and children, yet, if plaintiff was not harming or inconveniencing them, the brakeman had no right to throw him from the steps, was not erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. <&wkey;>321.]
    5. Trial <&wkey;260 — Instructions—Refusal.
    Where the court charged, in an action by one thrown from the steps of a car which he was attempting to enter, that there could be no recovery if plaintiff attempted to enter when other persons were being assisted and for that reason the brakeman shoved or pushed him back, and he received injuries because he was incumbered with suit cases and bundles, the refusal of a request that the railroad company as a common carrier owed to its passengers entering trains the highest degree of care, and that if a lady and children were being assisted on the coach plaintiff could not recover for injuries received when he was shoved back for the protection of such passengers, was not erroneous, being covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260J
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by J. P. Hassell against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      E. B. Perkins and D. Upthegrove, both of Dallas, and R. S. Neblett, of Corsicana, for appellant. Richard Mays, of Corsicana, for appellee.

       writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellee sued appellant, to recover damages for personal injuries, alleging in effect that appellee having purchased at Corsicana a ticket entitling him. to. passage over .appellant’s road to the town of Dawson, and while attempting to board a train the brakeman cursed and abused him, grabbed him by the arm, and jerked him from the steps of the train, causing him to fall, injuring his back, etc. Appellant denied the allegations, and further pleaded contributory negligence, in that appellee had a grip in each hand and was unable to protect himself from injury in falling. Appel-lee recovered judgment for $4,025, and appellant appeals.

The first assignment of error is:

“The court erred in overruling appellant’s motion for new trial, because the evidence shows that the verdict rests on the testimony of plaintiff as to his injuries and the cause thereof, and the plaintiff has made such contradictory statements as to when his injuries, if any, were received, that his statements are not sufficient to sustain the verdict.”

The testimony of appellee, in effect, is that several years ago he was in the service of the International Railroad and received an injury. He made a claim against said road, the settlement of which pended for about two years, when he was paid by said road the sum of $25. In testifying about the injuries then received, he showed them to be very slight. During the pendency of the settlement with the International Railroad, he, on June 12, 1904, wrote a letter to G. L. Noble, vice president and general manager of said road, about a settlement of said claim, and, among other things, said:

“I am injured for life beyond a doubt, and I can assure you that it was not any carelessness on my part that did it. I have not been able to do any work at all since I was hurt. I have been on my people ever since.”

On June 19, 1904, he wrote to J. S. Flynn, an officer of the International Railroad, relative to the injuries he received, as follows:

“Now I believe I have made statement enough for the present. Hoping this may give satisfaction and that you are willing to do me right and allow me something reasonable, as I believe you will. You know this has been almost a year ago. I have waited very patiently and am not able to do a man’s work yet. Now I don’t think I ever will. I have been on my people all the time. Hoping this will be a satisfactory statement, and that I may hear from you soon, I am * * * ”

He further stated that Mr. Bowers, superintendent of the bridge building department, told him to write to the railroad that he “was injured beyond a doubt for life, and to make it scary as I could.” He further stated that “the statement to the railroad qompany -was falsie, and I knew it was false when I made it.” He further said:

“These letters were not sworn to.' I was just trying to make a settlement with the railroad; my statement here in this case is given under oath.”

Appellee on the trial of this case testified fully as to his tiding to enter the railroad coach, and to the conduct of the brakeman in knocking or shoving him down, and to the injuries he received. As to his having been knocked or pushed down, several witnesses corroborated him, and a recovery did not depend alone upon his testimony. Notwithstanding his testimony that the statements made in his letters to the International Railroad official of a former injury were false and he knew it when he wrote the letters, his credibility was a question for the jury, and, the jury having by its verdict said he was entitled to recover, the verdict will not be disturbed by this court.

The second, third, fourth, fifth, sixth, seventh, and ninth assignments of error all attack the evidence as insufficient to support the verdict. In this we do not concur. We are of opinion that the evidence is sufficient to support the verdict, and said assignments are overruled.

The admission of the testimony complained of in assignment 8 cannot be considered, there being no bill of exceptions to its admission contained in the record.

The tenth, eleventh, twelfth, thirteenth, and fourteenth assignments of error relate to admission of evidence. This testimony was either res gestae, or made at a time and under circumstances rendering it legitimate. Therefore the assignments are overruled.

Appellant’s fifteenth assignment of error is based on the action of the court in giving appellee’s eleventh special charge, which is as follows:

“You are further instructed that the plaintiff had the right in law to board said train and to make all reasonable effort to do so, so long as he was not at the time doing violence to, or hurt to, some other passenger’s right to enter the train who at the time was also attempting to get aboard said train. If therefore you believe from the evidence that at the time plaintiff, Hassell, attempted to board said train, the stool and steps leading up to the car were unoccupied, and that he was making' an effort to ascend the steps and g'et aboard the train, then you are instructed he had the right to do this, and the brakeman had no right to undertake to prevent him from doing so. And if you further believe that, in the attempt of said brakeman to prevent him from going upon said train, he was knocked or pushed down and over against the steps of the car, or other part of the train, and sustained injuries, then and in such event your verdict should be for the plaintiff.”

The proposition presented by appellant is:

“The charge complained of is material and reversible error, because, even if the steps which led from the ground to the platform of the coach and the step box were unoccupied, still, if the brakeman was engaged in assisting a lady and little children on the train and had placed two of the children on the platform and was engaged in an effort to place the others on the platform, he had the right to temporarily prevent the plaintiff from coming between them, and to use such force as was necessary, even though he was not doing violence or hurt to such passengers then entering the train.”

Appellee’s case as made by his petition and sustained by the evidence was that plaintiff had procured a ticket entitling him to transportation, and that he went to the steps of the coach and attempted to board the train, the steps not being then occupied; that the brakeman pulled him down, causing him to fall and be injured thereby. Appellant denied plaintiff’s allegations and pleaded contributory negligence, in that plaintiff was attempting to board the train with heavy grips in each hand. There was no plea of justification by appellant of the brakeman’s acts on account of appellee interfering with other passengers boarding the train.

Under the circumstances, the charge stated the law. It was not on the weight of the evidence, and the assignment is overruled.

Assignment 16 complains of the court’s action in appellee’s special charge No. 12, which is as follows:

“You are further instructed that the plaintiff had the legal right to board said train, provided he did no violence to other passengers in so doing. And you are further charged that, if the brakeman believed that plaintiff was under the1 influence of whisky, or that plaintiff attempted to board the train while the brakeman was assisting ' a lady and children on the train, and you further believe that the plaintiff was not doing violence to the rights of said lady and children, and that by such act they were not placed in position of danger, harm, or inconvenience, then and in such event said brakeman had no right to assault or lay hands upon the person of plaintiff, and pull him from, or shove him away from, the steps of the car.”

The proposition is:

“The charge complained of is material and reversible error, because if the brakeman reasonably believed that the plaintiff was under the influence- of whisky, and that in his condition, incumbered with his grips and bundles, it was difficult for him to balance himself, and the brakeman was then engaged in assisting a lady and small children into the coach, and that the plaintiff attempted to enter between them, and the brakeman reasonably believed that they might be placed in a position of danger or inconvenience thereby, he had the right to temporarily prevent the plaintiff from entering the train at that time, and to use such force as reasonably appeared to him to be necessary for that purpose.”

Also, that it was on the weight of the evidence. That it made appellant’s right to interfere depend upon the fact that appellee was then doing violence or hurt to some other passenger attempting to enter the train, while it was the right of the brakeman to use necessary force if appellee was interfering or injuring other passengers.

The charge is not subject to the criticism urged by appellant. It claimed that appellee was drunk; but, even if so, the brakeman had no right to assault him unless he was interfering with other passengers.

Furthermore, the court charged the jury, at the request of the appellant, as follows:

“You are instructed that if you believe from the evidence that the plaintiff attempted to enter the passenger coach of the defendant at a time when other persons were being assisted on the train by the brakeman, and who were ahead of the plaintiff, and that, in order that these persons might be properly assisted by the brakeman on the train, the plaintiff was shoved or pushed back, and that by reason of the fact that the said Hassell had a hand grip and a suit case in his hands and a bundle under his arm, he was caused to stagger and fall and receive the injuries, if any, of which he complains, and that, but for the fact that he had the hand grip and suit case in his hands and the bundle under his arm, he would not have fallen and received the injuries, if any, of which he complains ; and you further believe from the evidence that it was negligence on the part of the plaintiff, Hassell, to attempt to board the train at the time he did, and that but for such negligence he would not have been injured, if he was injured — then you will find for the defendant.”

The seventeenth assignment of error complains of the refusal of the court to give requested charge as follows:

“You are instructed that the defendant railroad company as a common carrier owed the duty to its passengers while entering its train to exercise that high degree of care which very competent and prudent persons similarly situated would exercise to protect its passengers and see that they had a safe and comfortable entonce into its trains and coaches. Now, if you believe from the evidence that a lady passenger and children were being assisted by the brakeman in an entrance to the coach on defendant’s train, who were ahead of the plaintiff and arrived at the entrance to the coach ahead of the plaintiff, and that the plaintiff with a grip in one hand and a suit case in the other, and a bundle under his arm, attempted to get in between said lady passenger and her children, and you further believe that the plaintiff in the exercise of ordinary care would not have so entered, or attempted to board the train at the time he did, and you further believe from the evidence that the brakeman, in the exercise of that high degree of care, as afore explained, for the protection of the lady passenger and her children, shoved or pushed the plaintiff back, and you further believe that in doing so the brakeman used no more force than reasonably appeared to him to be necessary, you will find for the defendant, although you may believe that the plaintiff, by reason of the shove or push of the brakeman, fell and received the injuries of which he complains.”

We think there was no error in refusing this charge, in view of the fact that the court gave a requested charge for appellant which is quoted under the assignment just preceding in this opinion, which presented correctly the defense pleaded by appellant. Appellant did not plead in justification the acts of the brakeman in shoving or knocking the1 ap-pellee down, but rested on a denial of said acts and contributory negligence of appellee. Having asked two special charges covering the defense pleaded, the court had the right to select one of them and refuse the other. Besides, the court, in his main charge and special charges given, sufficiently protected the rights of appellant under the case as pleaded and the evidence adduced.

All assignments of error not mentioned in this opinion have been duly considered; but, none showing reversible error, they are overruled.

The judgment is affirmed.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes