author: RAINEY, C. J.

text:
    WELLS FARGO & CO. et al. v. LOWERY.
    (No. 7792.)
    (Court of Civil Anneals of Texas. Dallas.
    June 23, 1917.
    Rehearing Denied Oct. 6, 1917.)
    1. CarRieks <&wkey;304(2) — Injuries to Persons Rightfully on Station Platforms — Liability.
    Where plaintiff was injured by falling over the tongue of an express truck on a station platform, it was immaterial on the question of the carrier’s liability whether he fell over the tongue, which was stationary, or whether he ran into the truck, knocked down the tongue, and then fell over it.
    2. Carriers ¡&wkey;348(l) — Injuries to Persons Rightfully on Station Platforms — Liability.
    Where the carrier and the express company pleaded that plaintiff negligently walked and ran into an express truck and received the injuries complained of, a charge that, if plaintiff’s alleged negligence was established and was the proximate cause of the injury, the jury should find for defendants, properly protected the rights of the defendants.
    3. Pleabing &wkey;>409(l) — Injuries to Persons Rightfully on Station Platforms — Liability — Evidence—Admissibility.
    Where the plaintiff who had gone upon the carrier’s platform to meet his brother, a passenger, set up an ordinance of the city regulating the moving and handling of express trucks on railroad platforms, and defendants filed no exceptions to the plea, objection made to the introduction of the ordinance came too late.
    4. Carriers <&wkey;304(2) — Injuries to Persons Rightfully on Station Platforms — “Handling Trucks.”
    An express truck placed on the depot platform merely long enough to be loaded and then removed, and while being loaded causing injury to a person rightfully on the platform, was being handled within an ordinance regulating the handling of express trucks.
    5. Appeal and Error <&wkey;882(12) — Scope of Review — Invited Error.
    An assignment of error to the court’s definition of “reckless” and “careless” will be overruled, where the objecting party requested a charge substantially as given.
    6. Carriers &wkey;>304(2) — Injuries to Persons Rightfully on Platform — Care Required.
    Where plaintiff went to the depot and on the platform to meet a brother who arrived on a passenger train, he was lawfully on the platform, and the carrier and an express company using the platform owed Mm the duty to use 'ordinary care in handling its trucks.
    7. Trial <&wkey;194(:iG) — Charge on Evidence.
    Instruction held not a charge on evidence ■as instructing that plaintiff was not guilty of contributory negligence.
    8. Caeriers <&wkey;304(2) — Injuries to Persons Rightfully on Platforms — Care Required.
    While an express company using a railroad station has the right to conduct its business in a legal way on the platform, it must, as to all persons having the right to be on the platform, use care to prevent injuring them by its negligence.
    9. Carriers <&wkey;304(2) — Injuries to Persons Rightfully on Platforms — Care Required.
    If an express company, using a station building and platform for its business, handles a truck in a reckless and careless manner contrary to the terms of a city ordinance and an injury resulted to plaintiff, it is negligent in law.
    10. Carriers &wkey;284(4) — Injuries to Persons Rightfully on Platforms — Negligence of Express Company — Liability.
    A railroad which permits an express company to use its depot and platform when large numbers of persons are going to and from trains along the platform is liable for injuries to such persons, if it knew, or should have known, of the negligent handling of the express company’s trucks.
    11. Carriers &wkey;286(l) — Injuries to Persons Rightfully on Platforms — Care Required.
    It is the duty of a railroad company to provide a platform for the transaction of its business and the accommodation of its passengers.
    12. Carriers <&wkey;344^-lNJURiES to Persons Rightfully on Platforms — Contributory Negligence — Burden of Proof.
    Where the carrier alleged contributory negligence of a person who fell over a tongue of an express truck on the platform, it had the burden of showing such negligence by a preponderance of the evidence.
    Appeal from District Court, Navarro County; II. B. Davis, Judge.
    Action by E. B. Lowery against Wells Fargo & Company and the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Baker, Bott, Parker & Garwood, of Houston, E. B. Perkins and W. B. Hamilton, both of Dallas, and Callicutt & Johnson and R. S. Neblett, all of Corsicana, for appellants. Richard Mays, of Corsicana, for appellee.
   RAINEY, C. J.

Appellee sued the express company and the St. Louis Southwestern Railway Company of Texas, appellants, to recover damages for personal injuries sustained by him upon the platform of the railway company by falling over the tongue of an express truck upon the hard vitrified brick platform of the railway company at its depot in Corsicana, where he had gone to meet his brother and was accompanying him from the passenger train to his automobile, which was stopped at the customary place. Separate and joint negligence was alleged against both appellants.

Each appellant filed answer, in effect, general demurrers, general denial, and specially, contributory negligence. A trial resulted in a verdict and judgment for the appellee, from which appeal is prosecuted by appellants.

The Wells Fargo Company was doing an express business and conducting it in the railway company depot, using the depot platform with its trucks in loading and unloading express on and from the railway trains. This was being done under contract between the appellants. Further conclusions of facts will be given under the assignments as treated.

The first assignment presented is:
“The court erred in failing and refusing to instruct the jury, as requested by defendant’s special charge No. 12, which is substantially as follows: You are further instructed that if you believe from the evidence that an empty express truck used by one of the employes of the defendant express company, or the defendant railway company, was pushed in the direction of the plaintiff diagonally across the platform, and that one wheel of the same struck something and that the tongue of said truck was thrown around and struck the plaintiff on his legs and caused him to fall and receive the injuries of which he complains, then you will find a verdict for the defendants.”

The proposition submitted under this assignment is:

“The plaintiff having pleaded that an express truck was placed stationary at right angles with the express car and that the tongue of the truck extended out from the end across the railway platform, which was being used by him at the time, and that he stumbled over the truck tongue and thereby received^ his injuries, and there being testimony at variance from the cause of action thus pleaded, which presented a different cause of action from that pleaded, then, if plaintiff’s injuries were received from being struck by the tongue of a moving truck which knocked him down, he could not recover in this case, and the special charge requested should have been given.

The issue made by the pleadings was that of the express truck and tongue thereof being placed as stated in the proposition submitted, and appellee stumbled over it and was injured thereby, or was the tongue at the time hooked up in a perpendicular position and the appellee ran against It, knocking it down and thereby injured as pleaded by appellants? The case was fought out on this issue and the jury found, in effect, by its verdict, that the tongue of the truck was lying down on the platform and not raised in an upright position when struck by appel-lee. This finding is in accord with a preponderance of the evidence. There was testimony of one witness, who stated the accident occurred as stated in the special charge, but only the one.

There is no question that appellee came in contact with the tongue of an express truck, was thrown and injured thereby, and we are of the opinion that the issue of whether he was injured by reason of the tongue of the truck being down on the platform or whether he^ ran against it when hooked np, knocked it down, and then fell over it, having been submitted to the jury, the testimony that the accident occurred in a different manner does not affect the question of liability, as it depends upon the negligent handling of an express truck.

The second assignment is too general and will not be considered.

Assignments Nos. 2a and 3 complain of the court for failing to charge on contributory negligence. Quite a number of special charges grouping the facts were asked by appellants, which were refused by the trial court, upon which assignments of error are based.

The appellants on the question of appel-lee’s negligence pleaded in effect that appel-lee knew or ought to have known, could see and did see, by the exercise of ordinary care, that trucks were being used and handled by the express company in transacting the business of the defendant on the platform; that persons passed near the trucks and appellee negligently failed to look «and keep a watch-out ; that his attention was attracted to and engaged upon other matters; that he had a large grip in his hand and carelessly walked and ran into an express truck, or against the tongue thereof, and fell and received the injuries, if any, which, combined with the negligence of defendant, if any, contributed to and was the proximate cause of the injuries, if any, it being in the daytime between 9 and 10 a. m.

Plaintiff’s witnesses tended to show that the handle of the truck was lying on the platform, that plaintiff’s foot caught in the hande on the end of the tongue, which caused him to fall. Some of defendant’s testimony tended to show that appellee walked against the truck, knocked the tongue down, which was hooked up, stumbled, and fell over the tongue.

The court, in paragraph 3, subdivision (b), charged:

“ ‘Contributory negligence’ in its legal signification, is such an act or omission on the part of the plaintiff, amounting to a want of ordinary care and prudence, as concurring or cooperating with some negligence on the part of the defendant, if any, is a proximate cause or occasion of the injury complained of.”

Paragraph 8 charges:

“You are instructed that plaintiff cannot be charged with the duty of anticipating and avoiding negligence, if any, on the part of the defendants or either of them, and he had a right, in carefully using said platform, to assume that the defendants and their employés had and would use ordinary care to prevent injury to him. But it was plaintiff’s duty to so conduct and care for himself as to avoid any danger or injury that was known to him, or that could have been known to him by the exercise of ordinary care, to threaten him by reason of negligence, if any, the defendants, if any, and also to avoid any injury that might result to him in the ordinary and proper operation of the businesses of the defendants under the circumstances of the situation at that time.”

Paragraphs 11 and 12 charge:

(11) “You are instructed that it was the duty of plaintiff to exercise ordinary care in going upon and^ walking along and upon the platform and premises of the defendants at the time and place of the accident, to .avoid injury to himself and for his own protection, and if you find that plaintiff failed to exercise ordinary care for his own safety under the circumstances of the situation at the time, and if you further find that the tongue or handle of the truck was down upon the platform, and that plaintiff, in the failure to exercise ordinary care, walked against and fell over same, and that this was the proximate cause of his injury; then if you so find you will find for both defendants.”
(12) “You are instructed that if you find that the tongue or handle of the ti'uck was hooked up, and you further find that plaintiff walked against said tongue or handle and knocked it down and fell over it, and thereby received his injuries; you will find for both defendants.”

Paragraph 13 is:

“You are instructed that if you find that plaintiff, by going upon and along the platform and from the train of defendant railway company with his brother, by the route and along the way he did go, was guilty of contributory negligence, and if you find that this was the proximate cause of his injury, if any, then, if you so find you will find for both defendants.”

The defendants having specially pleaded that plaintiff negligently walked and ran into an express truck or against the tongue thereof, and fell and received the injuries complained of, and defendant’s evidence tending to show, and the court’s charge being, in effect, that if it is found to be true and was the proximate cause of the injury to find for the defendants, we are of opinion the charge correctly protected the rights of appellants and the assignments are overruled. Wells Fargo Oo. v. Benjamin, 165 S. W. 120.

It is complained that the court erred in admitting in evidence an ordinance of the city of Corsicana regulating the moving and handling of baggage and express trucks on railroad platforms and depot grounds, because the pleadings were not sufficient to authorize its introduction, it not being sufficiently identified in the pleadings. This objection we do not think tenable. The ordinance was pleaded by appellee in his petition. There was no exception filed to' the plea as being .too general, and the objection made to the introduction of the ordinance came too late, and the assignment is overruled.

Other assignments are made to the introduction of said ordinance on various grounds. The ordinance introduced is as follows:

“An ordinance regulating the standing and the moving of baggage or express trucks or any other trucks or recklessly or carelessly handling of said trucks on the railroad or railway depot grounds or platforms within the city • of Corsicana, Texás, and providing a penalty for the violation thereof.
“Be it ordained by the city council of the city of Corsicana, Texas:
“Section 1. That it shall be unlawful for any person or persons to push or pull any baggage or express trucks, or any other trucks, two abreast on or upon any railroad or railway depot grounds or platform, or to leave any baggage or express trucks or any other kind of trucks standing on or upon any railroad or railway depot grounds or platforms two abi’east within the city of Corsicana, Texas.
“Sec. 2. It shall be unlawful for any person or persons to recklessly. or carelessly push or pull or handle any baggage or express trucks, or any other trucks, on any railroad or railway depot grounds or platforms of any railroad or railway within the city of Corsicana, Texas.
“Any person violating any section of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction in the. corporation court shall be fined in any sum not less than one dollar and not more than twenty-five dollars.”

' Objections made to its introduction are:

“(1) Because section 2, of the ordinance is void for uncertainty. (2) Because it is not applicable to the case, in that to push, pull, or handle trucks means a change in the position of the trucks, or the handling of trucks that produced the accident, and not the placing of the trucks, and said ordinance does not apply to the placing of the trucks. (3) Because the caption of the ordinance is not sufficient to authorize the second section thereof. (4) Because said section does not denounce any specific act as negligence, but is a mere reaffirmation of the common law with reference to the degree of care that should be exercised, and neither adds to nor takes from the degree of care fixed by the common law, and the mere passage of such ordinance would not fix a liability in a civil suit, and its admission in evidence before the jury would be prejudicial to the rights of the defendants. (5) Because the city council is without power or authority to fix a liability for negligence in a civil suit.”

We are of the opinion that none of the objections urged are tenable. As to the power to pass such an ordinance this question was raised in the case of Railway Co. v. Holt, 30 Tex. Civ. App. 330, 70 S. W. 591, and this court said:

“The appellate courts of this state have so often held that the violation of a city ordinance in the operation of trains was negligence, and that the trial court could so instruct the jury, that wo deem it only necessary to cite the authorities.”

A number of authorities were cited, for which see the opinion. Under the ordinance the reckless'or careless pushing or pulling or handling of any truck on the railroad depot grounds or platform was made a misdemean- or, etc. It is contended that under the evidence it is not shown that there was any reckless or careless handling of any truck, in that the truck that caused- appellee’s injury was standing, and it does not come within the terms of the ordinance. The truck had just been placed in the position it was in to remain long enough to be loaded, and then to be moved away, so we take it that the tongue was on the platform, and it being so placed and while so standing was being handled and operated within contemplation of section 2 of. the ordinance.

Objection is made to the charge of the court in defining the terms “reckless” and “careless” used in said ordinance. While this is embraced in the court’s main charge, the record shows that appellant requested a charge defining said terms substantially as given by the court, therefore said objection is overruled.

Complaint is made of the giving of paragraph 4 of the court’s charge, which is:

“4. You are instructed that, under the proof in this case, the plaintiff had a right to be upon the platform and grounds of the defendant railway company at the time and place where he claims to have been injured; and that defendant express company owed plaintiff the duty to use ordinary care in using and handling its express trucks, so as to avoid injuring plaintiff at the time and place.
“If therefore you find the defendant express company was guilty of negligence in the manner of using and handling its trucks, or the tongue or handle thereof, under the circumstances of the situation at the time, on August 24, 1914; and if you find that by reason of such negligence, if any, it allowed the trucks or tongue or handle thereof to be and lie upon the platform commonly used by passengers and others having the lawful right to use and be upon said platform; and if you find that plaintiff, in the exercise of ordinary care, while walking upon said platform with his brother, in going from the train to his automobile, struck the tongue or handle of said truck with his foot, and fell over the same upon the platform, 'and thereby sustained injury; and if you find that said negligence of defendant express company, if any, was the proximate cause of said injury to plaintiff, if any, then you will find a verdict in favor of plaintiff against defendant express company, compensating him for the damages sustained by him by reason of said negligence, if any.”

One objection is that the pleadings do not support it. To this we do not concur. Appellee went to the depot, and- upon the platform, to meet a brother whom he expected to arrive, and did arrive, on a passenger train, and for which purpose he was lawfully there, and the court rightfully instructed the jury. The charge was not upon the weight of the evidence, and did not instruct the jury that appellee was not guilty of contributory negligence at the time he was injured. While the express company had the right to conduct its business in a legal way on the railroad platform, it was under obligation to all persons who had the right to be on the platform to use care to prevent injuring them by its negligence. When it uses such care and a party rightfully there does not use care for his own safety, but is guilty of negligence that contributes to his injury, then the company is not liable for such injury. The court properly charged the jury in this particular.

Several assignments complain of the fifth paragraph of the court’s charge, which paragraph is:

“5. You are instructed that the ordinances of the city of Corsicana provide that it shall be unlawful for any person or persons to recklessly and carelessly handle any express trucks on any railway platform within said city.
“If, therefore, you find that plaintiff’s injuries, if any, were caused by the reckless or careless handling of the express trucks of the defendant express company, by its employés, by allowing said truck, or the tongue or handle thereof, to be and lie upon or across that portion of the platform of defendant railway company in use by passengers and others having the lawful right to go thereon; and if you find that it was reckless or careless for the employés of defendant express company to so leave said truck or the tongue or the handle thereof upon, or across said platform; and if you find that such reckless or careless handling of said express truck, or the tongue or handle thereof, by defendant express company’s employes in leaving said truck, or the tongue or the handle thereof, upon or across the platform, if they did, was the proximate cause of Plaintiff’s injury, if any, then, you are instructed that this was negligence in law, which would entitle plaintiff to recover against defendant express company.
“You are instructed that the word ‘reckless,’ as the same is used in this paragraph,_ means gross negligence and a failure to exercise any care for the rights and protection of others under the circumstances. And you are instructed that the word ‘careless,’ as used in this paragraph, means free from care, or without care.”

The criticism of this charge, we think, is not justified. If the handling of the truck was contrary to the terms of the city ordinance, it was negligence in law, and it was not error in the court in so telling the jury.

Paragraph 6 of the court’s charge is attacked as error. It reads:

“You are instructed that if you find that the defendant express company was guilty of negligence in the manner of handling its trucks, or the tongue or handle thereof, under the circumstances of the situation at the time it is claimed plaintiff received an injury ; and if you find that by reason of said negligence, if any, the truck, or the handle or tongue thereof, was allowed to be and lie upon the platform commonly used by passengers and others having the lawful right to use and be upon said platform; and if you find that defendant railway company knew or ought to have known in the exercise of ordinary care that defendant express company and its employés, in the use of its trucks, did allow the truck, or the tongue or handle thereof, to be and lie upon the platform, if it did; aud if you find that plaintiff, in the exercise of ordinary care, while walking upon said platform with his brother, going from the train to his automobile, struck the handle or tongue of said truck with his foot, and stumbled and fell upon said platform and thereby sustained injury ; and if you find that said negligence, if any, upon the part of defendant railway company, was the proximate causo of said injury, if any, to plaintiff, then, if you so find you will find for plaintiff against the defendant railway company a verdict compensating him for the damage sustained by reason of said negligence, if any.”

The criticism of the charge is, in effect, that same was not warranted by the pleadings and evidence; that it makes the railroad company liable,' if it knew or ought to have known in the exercise of ordinary care, that the express company allowed, did allow or would probably allow, the tongue or handle of the express truck to be upon the platform. The evidence showed, in effect, that the railway platform was narrow and not large enough for the transaction of the business ordinarily done on such occasions; that on this occasion two passenger trains had arrived at the depot, and were standing on parallel tracks with a narrow strip of the platform between where passengers were discharged and express matter unloaded on express trucks. There were quite a number of passengers and other persons on the platform as usual on such occasions, and employes of the railroad company were assisting in the discharge of passengers and attending to other duties incident to the arrival of trains.

We are of the opinion that the conditions surrounding this occasion, as well as the pleadings, warranted the submission of negligence on the part of the railroad company. It was the duty of the railroad company to provide a platform for the transaction of its business and for the accommodation of its passengers, etc. There was a contract existing between the railroad company and the express company in relation to express business, and the express company had the right to use the platform for such purposes, but such contract did not absolve the railroad company from its duty of using care to prevent injury to persons lawfully on said premises, and if it knew or should have known of the negligent manner of the express company in doing business and made no effort to abate it, it cannot escape liability for such. Wilson v. Wells Fargo Co., 165 S. W. 36; Wells Fargo Co. v. McIntyre, 136 S. W. 1196.

Appellants complain of paragraph 7 of the charge, which relates to the duty of the railroad company in using care to not injure parties lawfully using the platform. Under the facts of this case we see no error in this paragraph of the charge, and the assignment is overruled.

Complaint is made of paragraph 8 of the charge, which tells the jury that appellee had the right to assume that defendant would use ordinary care to prevent injuring him. We think this charge is not error.

The court charged in the fourteenth paragraph of its main charge as follows :

“You are instructed that the burden of proof is upon the defendants to prove by a preponderance of the evidence in this case their claim of contributory negligence on the part of plaintiff. Unless you find that this has been done, you will find against defendants on that claim.”

In this connection appellants requested a special charge, as follows, which was refused, to wit:

“You are further instructed that, in determining whether or not the plaintiff was guilty of contributory negligence, you will look to and consider all of the facts, circumstances, and evidence before you.”

Appellants assigned error based upon the charge on the burden of proof and the refusal of the requested charge just quoted, and presents the following conclusion:

“The court erred in the fourteenth paragraph of its charge to the jury, because said paragraph shifts the burden of proof from the plaintiff, and requires the defendants to prove by their testimony that the plaintiff was guilty of contributory negligence.”

We do not think this criticism is warranted as the court expressly confined a finding for defendants to “prove by a preponderance of the evidence in this case.” The burden of proving contributory negligence was on defendants, they having pleaded such as a defense, and the charge was not misleading, and it expresses as much as the special charge requested by appellants. •

Complaint is made that the verdict is excessive. While the verdict is large, we are of'the opinion that the jury having passed upon the question, and the evidence being such as to warrant such a finding, the verdict should not be disturbed.

Many assignments are presented that we have not discussed in this opinion, but which have been considered by us. The evidence in the whole case supports the judgment. We find no reversible error in the judgment of the lower court and it is affirmed.

Affirmed.
      <&wkey;iFor other cases see same topic and KEY-NUMBER- in all ICey-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: RASBURff, J.

license: Public Domain

text:
    DRAKE v. NORTHERN TEXAS TRACTION CO.
    (No. 7797.)
    (Court of Civil Appeals of Texas. Dallas.
    June 30, 1917.
    Rehearing Denied Oct. 13, 1917.)
    1. Trial <&wkey;244(4) — Instructions — Undue Prominence oe Matters.
    In a passenger’s action for injuries sustained in alighting from a street car, the court’s general charge told the jury that it was plaintiff’s duty to exercise ordinary care for his own safety, and that his failure to do so would constitute negligence and prevent a recovery. The court also gave five special charges, requested by defendant, telling the jury in effect that if, when plaintiff attempted to alight, his hands were incumbered, and he failed to seize the handholds, and stepped straight out from the car, instead of following its motion, and that if such conduct was a failure to use ordinary care and contributed to his injuries defendant was entitled to a verdict; that it was plaintiff’s duty to exercise ordinary care, and if he alighted while the car was moving, and in a manner and form contributing to his injury, and if in this respect he was negligent, to find for defendant; that if plaintiff failed to observe that the car was in motion, and if by looking he could have seen this, and if his failure -in this respect was negligence and contributed to his injuries, he could not recover; and that, even though he was injured in alighting from the ear, the verdict should be for defendant, unless his injuries were caused by defendant’s negligence. Held that, while these special charges applied correct principles of law to the evidence, they were er-, roneous, as emphasizing and giving undue prominence to the claim that plaintiff’s negligence contributed to his injuries.
    2. Cabrieks <&wkey;347(ll) — Injuries to Passenger — Contributory Negligence — Questions for Jury.
    Where in such action defendant’s witnesses testified that plaintiff alighted safely after the ear came to a stop, and after he was on the ground fell in catching his hat, which was falling from his head, while plaintiff testified that he went into the vestibule, that the conductor opened the car door, and that assuming the car had stopped, the night being dark, he started to alight without looking, and was thrown down, the question of contributory negligence was properly submitted to the jury, since while defendant’s testimony raised no such question, plaintiff’s own testimony did, as the jury might have found that plaintiff was negligent in assuming that the car had stopped.
    3. Carriers ¡&wkey;347(11) — Injuries to Passenger — Contributory Negligence — Questions for Jury.
    Whether a street car passenger was negligent in starting to alight from a moving car on the assumption that it had stopped was a' question for the jury, where there was evidence that the night was unusually dark, and that plaintiff’s vigilance was relaxed, and he failed to look because the conductor opened the door, thereby inviting him to alight.
    4. Trial <&wkey;191(9) — Instructions Assuming Facts — Injuries to Passengers.
    , An instruction that if plaintiff failed to observe the car was in motion, and if by looking he could have seen that it was, and if his failure in this respect was negligence and contributed to his injuries he could not recover, did not assume that plaintiff in alighting from the car while in motion was negligent per se.
    5. Carriers <&wkey;348(6) — Injuries to Passenger-Instructions.
    In a street ear passenger’s action for injuries, an instruction leaving it to the jury to determine whether an ordinarily prudent person would have alighted from the car under the facts related was equivalent to an instruction telling them to determine whether one in the exercise of ordinary care would have done so.
    6. Carriers <&wkey;348(13) — Injuries to Passenger — Instructions—Burden of Proof. _
    _ In a street car passenger’s action for injuries, an instruction that negligence could not be presumed, but 'must be proved as any other fact, correctly presented the issue of burden of proof, and, not being included in the general charge, was properly given as a special charge.
    7. Trial &wkey;>234(7) — Injuries to Passenger-Instructions — Burden of Proof.
    An instruction that negligence could not be presumed, but must be proved as any other fact, was proper, notwithstanding evidence claimed to justify the jury in presuming negligence, since correctly speaking the jury never presumes negligence from proven facts, but finds that proven facts constitute negligence.
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Amon Drake against the Northern Texas Traction Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    John Spann and Marcus M. Parks, both of Dallas, for appellant. J. Hart Willis and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   RASBURff, J.

Appellant sued appellee in the court below to recover damages for personal injuries alleged to be the result of the negligence of appellee’s servants in the operation of one of appellee’s street cars. The negligence relied upon as ground for recovery was that while appellant was a passenger upon appellee’s car in the city of Dallas, and when approaching the point at which he desired to alight, he stepped into the vestibule of the car, and while there appellee’s servants, before the car came to a stop, opened the door, whereupon appellant, assuming the car had come to a stop and being unable, because of the unusual darkness of the night to observe that the car was in motion, stepped- from the car and was thrown upon the ground and seriously injured. The pileading of appellee on the merits of the case consisted of the general denial and plea of contributory negligence. There was a trial before jury; tlie case being submitted upon a general and certain special charges. Verdict was for appellee, followed by like judgment. From the latter this appeal is prosecuted.

From the evidence tendered by appellant the following facts, in relation to how his injuries were inflicted, are deducible: Appellant, a negro 42 years of age, on the night he was injured boarded a car at the post office at 12:20 a. m. for his home in the southern part of the city of Dallas. When- the conductor called Third street, the point where appellant desired to alight, the latter signaled the car to stop for that street. The entry to and from the car is by a vestibule, the doors to which are customarily closed until the car stops. for taking on or discharging passengers. Shortly after signaling the ear to stop appellant walked from within the car to the center of the vestibule and halted. While so standing the conductor opened the door and appellant, assuming the car had stopped, without looking stepped down, he thinks, upon the ear step, though he is not sure, about which time he realized the car was moving and felt himself falling in a “swirl” to the ground. When appellant stepped from the car he had a paper sack containing two or three oranges in his hand, and was unable to recall whether he seized the handholds of the car when he stepped out. Appellant, had he looked, could have seen that the car was moving. He did not look because he assumed the car had stopped or the door would not have been opened for him to alight. After appellant arose from his fall he saw the car standing in the vicinity of where he had alighted and the conductor looking back at him. He returned to the ear, and as he approached it the conductor opened the door and appellant entered or sat upon the car floor at the entrance. The conductor asked if he was hurt, and upon appellant replying he was the conductor examined him and said he did not think he was hurt, but if he was it was the fault of appellant, which the latter denied.

The facts concerning how appellant’s injuries were inflicted deducible from the evidence of appellee’s witnesses are these: Appellant, after boarding the car, told appellee’s conductor that he desired to alight at Third street. The conductor, when approaching Third street, signaled the motorman to stop, which he did. The car came to a “dead” stop, after which the appellant arose from his seat within the car, the conductor opened the door, and appellant stepped out without accident; the place where he alighted being the best lighted in that vicinity. After appellant left the' car and as it was moving away appellant, in catching his hat, which for some reason was falling from his head, fell out into the street. At this juncture the conductor, observing an approaching interurban car, stopped appel-lee’s car, as was customary for any possible passengers at this point, and while so waiting appellant returned to the car. The conductor asked him if he had hurt himself, and he said he believed he had, whereupon the conductor examined him, but could find no injuries.

No issue is made as to the extent of appellant’s injuries, which the evidence discloses are serious and permanent.

The case was submitted to the jury upon a general and sundry special charges allowed at the reguest of appellee. Such presentation appellant contends was erroneous in that it emphasized the alleged negligence of appellant, and thereby misled the jury. This contention presents the first inquiry. By the general charge the jury was told that when appellant attempted to alight from the car appellee owed him the highest degree of care, and a failure to exercise such care would constitute negligence entitling appellant to recover damages for any injuries suffered. The jury were also told by the general charge that it was appellant’s duty in alighting from the car to exercise ordinary care for his own safety, and his failure to do so would constitute negligence and prevent recovery if his negligence contributed to his injuries. Other necessary and pertinent instructions were included in the general charge. The charge so standing, the trial judge, at request of appellee, allowed, among others, five special charges. By No. 5 the jury were told, in substance, that if they found, at the time appellant attempted to alight from the car, his hands were incumbered, and he failed to seize the handholds and stepped straight out from the car instead of following the motion of the car, and that such conduct was a failure to use ordinary care and contributed to appellant’s injuries, appellee would be entitled to a verdict. By No. 2 the jury were told, in substance, that it was appellant’s duty to exercise ordinary care in alighting from the car, and if appellant alighted therefrom while it was moving, and in a manner and form which contributed to injure him, and he was in that respect negligent, to find for appellee. By No. 7 the jury were told that if they believed appellant, in alighting from the car, failed to observe it was in motion, and that by looking he could have seen that it was and that his failure in that respect was negligence and contributed to his injuries, he could not recover notwithstanding appellee was also negligent. By No. 4 the court told the jury, in substance, that even though they believed appellant was injured in alighting from the car they should return verdict for appellee, unless appellant’s injuries were caused by appellee’s negligence.

We conclude, as maintained by appellant, that the manner in which the known careful and able district judge submitted the case to the jury was erroneous in that it emphasized and gave undue prominence to the claim that appellant’s negligence contributed to his injuries, and in that it was calculated to mislead the jury to believe that the trial court was of that opinion. It is the long-settled rule that issues nor facts may be accentuated or given undue prominence by repetition, and that to do so is reversible error. Powell v. Messer, 18 Tex. 402; Fore v. Hitson, 70 Tex. 517, 8 S. W. 292; Lumsden v. Railway Co., 28 Tex. Civ. App. 225, 67 S. W. 170; Kroeger v. Railway Co., 30 Tex. Civ. App. 87, 69 S. W. 809; Rutlin v. Trinity Oil Co., 151 S. W. 584. The reason for the rule lies in our statement of the contention just above.

It is, however, urged by appellee that the charges enumerated contain correct principles of law, and is but applying such correct principles of law to the evidence, or a grouping of the facts constituting its defense, and to which it is entitled. We concede the principles announced as correct, and the right to have them applied to the evidence, yet such concession will not cure the error, if we are correct in our deduction originally stated that such charges emphasized and'gave undue prominence to appellant’s negligence, and probably misled the jury into the belief that the court so regarded such negligence. For while it is well settled that appellee was entitled to a charge grouping the facts deducible from the evidence, which, if believed by the jury, would establish contributory negligence on the part of appellant and thereby defeat recovery, it is as well settled that ap-pellee was not entitled to repetitions of the issue, and the circumstances tending to establish the defense. Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. The evidence on trial clearly entitled appellee to a charge on the issue of contributory negligence, and the rule cited permits those facts to be grouped in order that the jury may pass upon that very issue. Incidentally, it was appellee’s duty to prepare such charge correctly. See McGlamory’s Case. Charge No. 5 substantially conformed to the rule by including therein approximately all the circumstances attending appellant’s attempt to alight from the car. There was no other act tending to establish contributory negligence than appellant’s attempt to alight from the car. As a consequence that fact should have been and was included in charge No. 5. Yet the issue was repeated as an independent defense in charge No. 2, when the manner and form in which appellant alighted from the car was presented in a separate special charge. Again, the issue was presented in another special charge as an independent defense when the jury were told that it was negligence to step from the car without looking. The most that can be said of either of the latter special issues is that they are or should have been included in charge No. 5. It is certain that they are not facts, independent of and separated from appellant’s negligence in alighting from the car, which would defeat his right of recovery, but inherently under the evidence either the same fact differently stated or a component circumstance of that fact. After having thus charged generally once and three times specially upon appellant’s negligence, the court admonishes the jury by charge No. 4 that, even though appellant was injured, he must prove that it was due to appellee’s negligence, notwithstanding the general charge placed the burden of proof upon appellant. We cannot but believe that the general presentation of appellant’s case and the specific presentation of appellee’s defense, omitted in the three separate special charges on contributory negligence, coupled with admonition of the court in reference to burden of proof, that the jury were probably misled by the prominence given to that issue.

It is also contended by appellant that the issue of contributory negligence was improperly submitted to the jury because without support in the evidence. While it is true that appellee’s evidence does not raise the issue of contributory negligence on the part of appellant, since the effect of its testimony is that appellant safely alighted from the car while it was at standstill, yet appellant’s testimony does, since it appears therefrom, in substance, that at the time he alighted from the car it was moving and that had he observed he could have known that fact, and also that his hands were incumbered, though slightly, and that he failed to seize the handholds of the car. The jury were not compelled to accept in toto the facts supported by the evidence of either party, and it will hardly be denied that the facts stated raise the issue. Nor does the fact that appellant, assuming that the car was at standstill or the door would not have been opened, acted! upon the implied invitation to alight change the situation. The jury may have believed that it was negligence to do* that very thing.

It is urged that the court by special charge No. 7 told the jury that a failure to observe that the car was in motion was negligence per se. Whether appellant’s failure to observe the undisputed fact according to appellant’s testimony that the car was in motion was negligence was, in our opinion, a question of fact for the jury. Conceivably such failure might be negligence per se, as in case of one traveling upon a car in the daytime, for we can hardly comprehend how one could fail, under such circumstances, to observe the motion of a street car. But the testimony of appellant is that the night was unusually dark, and that his vigilance was relaxed and he failed to look, because he was invited to alight by the opening of the door, which we think presents an issue for the jury. However, the charge does not assume that appellant, in alighting from the car while in motion, was negligent per se. It does, in effect, assume the undisputed fact that the car was in motion, but as to whether it was negligence to alight from the car was left to the jury when they were told to determine whether an ordinarily prudent person would have alighted from the car under the facts related. Whether an ordinarily prudent person would have done a thing under the same or similar circumstances is equivalent to saying whether one in the exercise of ordinary care would have done the same thing. Railway Co. v. Johnson, 48 Tex. Civ. App. 135, 106 S. W. 773.

The court, at request of appellee, told the jury that negligence could not be presumed, but must be proved as any other fact. Appellant contends that it appearing from the evidence that the appellee’s conductor opened the car door while it was in motion, thereby expressly and impliedly inviting appellant to alight from the car, and it appearing that appellant accepted the invitation and was injured as a result, the jury could presume negligence from such facts, and hence the charge was prejudicial. First, it may be said that the charge correctly presented the issue of burden of proof, and the court, failing to include it in the general charge, could allow it as a special charge. Railway Co. v. Morin, 66 Tex. 133, 18 S. W. 345. The charge reviewed in the cited case is quite similar to the one complained of. Secondly, it may be said, correctly speaking, that the jury never presumes negligence from proven facts, but finds that proven facts constitute negligence. As a consequence, it must be concluded, in view of the verdict, that the jury, upon consideration of the facts recited, found they did not in fact constitute negligence. There are a number of other points urged by appellant, which, in our opinion, fail to disclose reversible error, and are hence overruled, since a discussion of them would be of no value.

For the reasons indicated, the judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.

Reversed and remanded.
      ¡@s»For other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    HOOKS et al. v. PATE.
    (No. 264.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 11, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Appeal and Eekok <&wkey;742(l) — Beiees— Noncomeliance with Rules.
    Where the assignments are not followed by propositions or statements, and the brief does not comply with the rules governing appellate courts, this court will not on its own motion consider the brief in detail.
    2. Justices oe the Peace <®=»122(2) — Default Judgment — Pkocess.
    Although defendant was originally alleged to reside in H. county, if in fact he had removed to the county where the suit was brought, process could be issued by the justice of the latter county, and if properly served would support the judgment by default.
    Error from Jefferson County Court; D. P. Wheat, Judge.
    Suit in justice’s court by S. J. Pate against Chas. G. Hooks and another. From a decision of the county court on certiorari, affirming the decision of the justice in reviving a dormant judgment for plaintiff, defendant named brings error.
    Affirmed.
    Thos. J. Baten, of Beaumont, for plaintiff in error. D. E. O’Fiel, of Beaumont, for defendant in error,
   BROOKE, J.

This suit originated in the justice court, precinct No. 1, Jefferson county ; said court being presided over by I-Ion.. H. E. Showers. On the 7th day of September, 1912, the defendant in error filed in said suit a written statement, wherein he sued plaintiff in error, seeking to enforce the collection of a joint and several promissory note, in the sum of $150, bearing date October 20, 1911, signed by said defendant, and payable to the defendant in error, S. J. Pate, on demand, at Beaumont, Tex.; the note bearing interest at the rate of 8 per cent, per annum, and providing that in the event same is placed in the hands of an attorney for collection, or if collected by suit, an additional 10 per cent., principal and interest, should be due. The plaintiff alleged that the amount was due and unpaid; that demand had been made for payment of the note; that the parties had failed and refused to pay the same, and placed the same in the hands of an attorney, and obligated himself to pay attorneys’ fees. It may be said that in the original suit Chas. G. Hooks was alleged to reside in Hardin county, Tex., and his codefendant, J. W. Smith, was said to reside in Cbleman county, Tex.

After the said suit, and said statement of the cause of action was filed in the justice court and before the issuance of citation to Hardin county, the defendant in error, through his attorney, was advised that the defendant Hooks was then residing in Jefferson county, Tex., where citation could be served upon him, and thereupon he caused the citation to be issued to Hooks in Jefferson county. The sheriff of Coleman county received the citation to be served on Smith, and returned the same unserved, with the information that Smith was not in Coleman county, Tex. At the time the request was made to the justice of peace to issue a citation for Hooks to Jefferson county, the justice was asked to make a notation of such request on his docket. After the appearance day o* the next term of said justice court, on October 5, 1912, the suit ivas dismissed as to the defendant Smith, and judgment by default was rendered against defendant. Hooks. No execution was issued on said judgment within a space of 12 months from' its rendition, and said judgment became dormant. On October 25, 1912, action was brought to revive said judgment in said original suit, and citation was issued to plaintiff in error to Hardin county, and he was served with citation. On November 29, 1915, plaintiff in error filed his motion to quash the citation served on him in the suit brought to' revive said former judgment, setting up the following facts:

“Now comes Chas. G. Hooks, the defendant herein, and appearing solely for the purposes of this motion and for no other purpose, moves the court to quash the citation served on him in this cause, and in support of this motion he shows to the court as follows: Eirst. Said citation served on this defendant does not at any place show, and it does not state, when' the suit was filed, as is required by the statutes of this state. Defendant attaches hereto the citation •served on him for the purpose of verification of this statement. Wherefore this defendant prays that said citation be quashed and held for naught.”

The court overruled the motion, and revived the judgment. The plaintiff in error filed his petition for certiorari January 10, 1916, which same was granted. Upon hearing, the county court rendered judgment also reviving the judgment of the lower court, and ordering execution to he issued, from which said judgment this appeal -has been perfected.

The appellant, in his brief, has filed 12 assignments of error. However, these assignments are not followed by propositions or statements, and the brief does not comply with the rules that govern appellate courts, and, notwithstanding there is no motion to not consider the same, the brief is in such violation that the court, of its own motion, will not consider the same in detail.

There seems to be a controversy as to whether or not the service in the lower court in the original suit was sufficient to uphold a default judgment, and complaint seems to be made that notwithstanding the petition was filed in the justice court, setting out that Hooks was a resident of Hardin county, and Smith a resident of Coleman county, counsel for defendant in error went to the justice of peace and told him to note the fact that one of the people from whom he was asking judgment had removed his place of residence to Jefferson county, and was no longer a resident of Hardin county, and that thereupon the justice directed that process be issued to Jefferson county for the said Hooks. We think that the action of the justice of peace was permissible, and that if, in fact, Hooks had removed to Jefferson county, although he was originally alleged to reside in Hardin county, nevertheless process could be issued to Jefferson county, and if properly served on him would support a judgment by default.

What has been said above seems to he the only controversy in the case. It is nowhere complained that Hooks had any meritorious defense; that he had either paid or attempted to pay the debt sued upon, but he only claims that a judgment in violation of his rights had been taken upon service not sufficient under the law. The transcript of the lower court shows that the judgment recited as follows:

“On this 5th day of October, A. D. 1912, came on to be heard the trial of the above enti-. tied and numbered cause, and the plaintiff appearing, by himself as well as by his attorney; and it appearing to the court that the citation issued to the defendant J. W. Smith has been returned not served, the plaintiff says that he will not further prosecute his said suit against the said defendant. It is therefore considered by the court that the plaintiff take nothing by his suit against the defendant J. W. Smith, and that the said J. W. Smith recover of the plaintiff, S. J. Pate, all his costs in this behalf expended, for which he may have his execution. And the said defendant Charles G. Hooks, though duly cited, having failed to appear and answer herein, and it appearing to the court that the cause of action is liquidated, and proven by an instrument in writing, and the same having been submitted to the court and by him fully considered, the plaintiff’s said damages are assessed by the court at $150, with interest thereon at the rate of 8 per cent, from the 20th day of October, 1911.”

The recitation in the judgment showing that service was had upon said Hooks, and it appearing from the same that he was duly cited to appear, the judgment of the justice before whom the ease was originally tried, by default, was fully authorized. The only matter inquired into in the county court, therefore, was as to the fact of whether or not legal service upon the said Hooks .was had in the original trial of the case. The county court found, as he had a right to do, that service had been duly had, and taken by default upon the said Hooks, and the only matter that remains to be established in the county court was whether the said judgment should be revived.

We have gone over the record thoroughly. We find no error apparent of record, which would authorize this court to set the judgment of the county court aside; in fact, we believe the county court acted correctly in the premises in reviving said dormant judgment, which had been made and entered by default in the original trial. Such being the case, the said judgment is in all things affirmed.
      igr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IALB, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. SMITH.
    (No. 1211.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Pleading <&wkey;8(20) — Conclusion — Character of Injuries.
    Allegations that by reason of his injury plaintiff’s entire physical, nervous, and mental being suffered a severe shock do not present the pleader’s general conclusion.
    2. Evidence &wkey;>359(4) — X-Ray Pictures — Admissibility-Preliminary Proof.
    Evidence in servant’s action for injuries held to warrant admission of book plates showing X-ray pictures of the normal human foot for comparison with plaintiff’s foot after the injuries.
    3. Evidence ¡@=3471(12) — Opinion—Injuries to Servant — Mental Suffering.
    In a servant’s action for injuries, plaintiff could testify that he got awfully blue at times because he could not do the work which he had formerly done.

      4. Damages <&wkey;53 — Injuries to Servant-Measure o.f Damages — Mental Distress.
    That the servant, after his injuries, showed a mental condition which he described as “the blues,” was an element of damages allowable.
    5. Damages &wkey;»53 — Measure of Damages— Mental Distress.
    Mental suffering, which an injured person experiences from brooding over and regarding his crippled condition, is not too remote, but is a proper subject for damages in servant’s action for injuries.
    6. Trial <&wkey;191(l) — Instruction—Assuming Facts in Issue.
    A requested instruction, assuming the facts in issue, is properly refused.
    7. Appeal and Error <&wkey;1062(2) — Harmless Error — Issues Submitted.
    Error, if any, in refusing to submit the issue of the servant’s assumption of risk, svas harmless, where, in view of the finding of the master’s negligence no other verdict than that arrived at could have been reached.
    8. Master and Servant <&wkey;206 — Injuries to Servant — “Ordinarily Incident.”
    . Dangers “ordinarily incident” to employment are those commonly and usually pertaining to and incident to it, which a reasonably prudent person might anticipate, and do not include danger by acts ojf negligence, unless habitual and known to the servant.
    LEd. Note. — For other definitions, see Avoids and Phrases, First and Second Series, Ordinarily.]
    9. Master and Servant &wkey;>297(2) — Injuries to Servant — Conflicting Findings — Epee ct.
    Where the jury found that the servant did not try to step on the stringer, lose his balance, and fall on the ground, their finding that such act was negligence, and the proximate cause of the injuries, though inconsistent, was unnecessary, and could be disregarded.
    10. Damages <&wkey;134(3) — Excessive Damages. A verdict of $10,000 to a servant 25 years
    of age, earning $S0 per month, who after his injury could earn no more than $9 per week, and bones of whose feet were smashed, was not excessive.
    Appeal from District Court, Potter County; Hugh D. Umphres, Judge.
    Action by A. W. Smith against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lassiter & Harrison and R. M. Rowland, all of Ft. Worth, and C. E. Gustavus, of Amarillo, for appellant. Crudgington & Works, L. C. Barrett, and J. N. Browning, all of Amarillo, for appellee.
   I-IALB, J.

Appellee sued appellant railway company to recover damages on account of alleged personal injuries, resulting from a fall from a bridge upon which -he was working as an employe of appellant. A trial before a jury resulted in a judgment for $10,-000 in favor of appellee, based upon a verdict answering certain special issues, which will not be set out here.

By its first assignment of error appellant complains of the court’s action in overruling one of its special exceptions to the plaintiff’s amended original petition. ’ The exception is as follows:

“The allegations in the sixteenth paragraph are wholly insufficient, in this: The charges that plaintiff’s entire physical, nervous, and-mental being was severely shocked and stunned are mere general conclusions, without the statement of facts, and do not show the kind, character, and extent of any such injuries.”

The fifteenth paragraph of the amended original petition alleges specifically and in. detail the injuries; to appellee’s feet, ankles, and legs, showing the results of the injuries, “whereby he was caused to and did suffer intense and excruciating pain of both body and mind, which suffering has continued with greater or less intensity to the present time, and will continue indefinitely in the future.”

The sixteenth paragraph is as follows:

“In addition to the injuries above shown, there was also caused to plaintiff’s entire physical, nervous, and mental being a severe shock and stunning, from'which he lost consciousness for some time, and afterwards suffered great pain and anguish in body, nerves, and mind.”

We do not assent to appellant’s contention that this allegation is a statement of a mere general conclusion. We think it is the statement of a condition — the result of the injuries specifically set out in the preceding paragraph — and is the statement of a fact. The kind, character, and extent of the injuries is further declared in the statement that his entire physical, nervous, and mental being was severely shocked and stunned, from, which he lost consciousness for some time, and afterwards suffered great pain and anguish in body, nerves, and mind. As said by the Supreme Court in Railway Co. v. Shafer, 54 Tex. 646:

“It is neither necessary nor proper to set forth the evidence on which the pleader relies to sustain the facts which constitute his cause of ac- • tion.”

The allegation is sufficiently specific and definite to notify appellant of the character of evidence which will be offered to sustain the facts alleged. The permanent inability of appellee to get about to work and earn money was amply declared by other allegations, and appellant is bound to take notice of the necessary and inevitable effects and results of conditions brought about by the negligence of its servants and employés. Railway Co. v. Curry, 64 Tex. 85; Railway Co. v. Callihan, 86 S. W. 929; Railway Co. v. Gready, 36 Tex. Civ. App. 536, 82 S. W. 1061.

Under the second assignment appellant complains of the court’s action in permitting appellee to introduce, in connection with the evidence of Dr. J. R. Wrather, certain X-ray pictures of the bones of the normal foot found in a medical work known as “Treatment of Fractures,” by Scuddor. As shown by the hill of exceptions, there was considerable discussion between the court and counsel for the parties, and the witness was examined and cross-examined to a great extent; but the objections finally lodged are that the photographs are immaterial and irrelevant, are not sufficiently identified, are introduced, only' for tide purpose of comparison, and no sufficient predicate laid for their introduction for any such method of comparison, it not being shown what the condition of plaintiff’s arch was — whether it was normal or otherwise — prior to the injury. Upon cross-examination of Dr. Wrather by •appellant, the witness stated that the plates ■or photographs introduced were to his knowledge correct pictures of normal arches of the feet. He further testified that the book containing the plates was a standard work, accepted by the medical profession generally. It further appears from the record that the condition of appellee’s feet, both before and after the injury, was shown by the evidence. In this state of the record, the plates were certainly not immaterial or irrelevant. Their correctness was established by the evidence of Dr. AVrather, and, while the predicate was not laid prior to their introduction, this objection was removed by proper subsequent proof. In H. & T. C. Ry. Co. v. Shapard, 118 S. W. 601, Reese, Justice, said:

“It would be strange if, in the trial of cases in courts, use could not be made of facts elicited by means of a process, the usefulness and accuracy of which has been so completed demonstrated as have been photographic views of the bones of the living body by means of the X-ray. When properly taken, as these views were shown to have been, it is a matter of such common knowledge that they accurately represent what they purport to show that even courts may take cognizance of the fact.”

It is urged under the third assignment that the court erred in permitting the plaintiff to testify in his own behalf, over defendant’s objections, as to the effect of his injured condition upon his nerves and mind. The question and answer objected to are as follows:

“Q. Has there been any effect, from your condition as you understand it, upon your nerves or mind, thinking about your condition? A. As to whether or not the condition of my feet, as I have explained it, has any effect on the condition of my nervous system and mind, I will state it does affect my mind. The way it affects my mind is that I get awfully blue at times, when I see that I cannot do as I used to do, and get about as I would like to, and hold the positions that I would want to. As to whether- or not I have noticed any effect of those things on my nervous condition, I might state that I have been nervous since I have been Hurt, but don’t know whether that is affected or not. I would not say.”

The objections urged to this question and answer are that the witness was not shown to be competent, that the question involved speculation, and there were no pleadings to justify any proof of that character. • The answer made by the witness to the question eliminates the objection in so far as it attempted to elicit evidence as to the effect which his thinking about his condition had upon appellee’s nerves, and he may not, under the authorities, have been competent to testify upon that point; but it was certainly competent testimony when he stated that thinking about his condition caused him to feel blue. He, above all others, was best qualified to state this fact. A., T. & S. F. Ry. Co. v. Click, 32 S. W. 226. There was no element of speculation involved in his answer. We think the pleadings were sufficient to admit the proof. He alleged intense suffering and pain of both body and mind, and that such pain and suffering would continue to the end of his life; that it was a shock to his physical, nervous, and mental being, resulting in a loss of consciousness, which he suffered in body, nerves, and mind; and that said injuries were permanent. He further alleges that it almost destroyed his earning capacity; that up'to the time of the injury he was a stout, robust, healthy young man, capable of performing any kind of manual labor and severe toil; and that this condition had been practically destroyed by the injury. Under this assignment appellant insists that, even if plaintiff is correct in his statement that his attacks of “blues” and his occasional morbid mental conditions are due to the injury to his feet, still such effects of an injury cannot form the basis of a recovery, or enter into the estimate of the damages according to the rule which prevails in the United States courts and which necessarily controls this case.

By argument and citation of authorities under this proposition, appellant endeavors to bring the case, in so far as, the matter of mental anguish is concerned, under the mile obtaining in the federal courts on this subject, under the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Some of the lower federal courts have held that mortification or distress of mind from the contemplation of one’s crippled condition, and its effect upon the esteem of his fellows, which is held to be mental pain, separable from the physical suffering caused by the injury, is too remote, indefinite, and intangible to constitute an element of damages in such case. The answer of the appellee clearly does not bring this case within that rule. He made no reference whatever to the esteem his fellows would place upon him, nor to the mortification attending the realization of the fact that he was maimed, crippled, and disfigured, but stated that his mental condition, which he describes as “the blues,” was the result of the thought that he could not, since the accident, “get about” and do as he would like to, and hold the positions which he would want to hold. As an element of damages this comes within the rule announced in the case of M., K. & T. Ry. Co. v. Miller, 25 Tex. Civ. App. 460, 61 S. W. 978 (writ of error denied by Supreme Court), where we find this language:

“The second assignment complains of the court permitting the plaintiff to testify on the issue of mental anguish as follows: ‘There are times when I am thinking of what I am now and what I have been. The prospects are so heavy for me that I can hardly bear the weight. I have been a very active man in roy day, and when I think of what I have been, a powerful man, and when I think that I have got to be laid up the balance of my life, the load is a little heavy for me.’ * * *’ iphe objection to this evidence, as stated in appellant’s brief, was as follows: ‘Defendant objected to the question, and to any evidence of mental suffering from contemplating his crippled condition, and requested the court to restrict the testimony to mental anguish growing out of physical injury to plaintiff, and not contemplating liis crippled condition, because such evidence would be immaterial, irrelevant, and too remote.’ This assignment complained of the court’s refusal to give a special charge in this language: ‘If you find in favor of the plaintiff, you will not allow him any amount as compensation for any mental anguish or suffering you may believe he has suffered from brooding over or contemplating his maimed or injured condition, and regretting the difference, if any, between his present * * * condition and what it was before he was injured.’ Only one proposition is submitted under these two assignments, and that is: ‘Mental suffering, which an injured person experiences from brooding over and regretting his crippled condition, is too remote, and not a proper subject for damages in cases of this kind.’ We think the court did not err in admitting the evidence, nor in refusing to give the special charge asked, since mental anguish or suffering is a proper subject for damages in cases where one in good health and strength, sound in mind and members, by reason of the wrongful act of another is reduced to the state of a physical wreck, maimed and crippled for life, broken in body and spirit; and since the jury may presume mental anguish in the absence of affirmative evidence thereof, in cases where such would be the natural consequence of such injury, we can see no good reason, since parties to the suit may testify, why they may not relate their mental anguish as well as their physical suffering. We understand that this mental suffering may be, in part at least, the result of comparing their present wretched, dependent condition and hopeless future with the bright, happy, and independent life of which they wore deprived by the injury, as well as the contemplation of the fact that they must suffer from the effects of such injuries during the balance of their lives. * * * We are unable to see why the mental sufferings of this man, in contemplating his changed condition from a bright, happy life to a living death, should not form one of the natural results of such an injury and a proper subject of evidence and of damages.”

In the case of T. & P. Ry. Co. v. Curry, 64 Tex. 88, the Supreme Court said:

“The law infers, when such injuries to the person are shown to have existed as are alleged and proved in this case, that physical pain resulted therefrom; for by common observation we know that, in the ordinary operation of natural laws, pain is a necessary result of such injuries, unless the condition of the injured person be abnormal, which will not be presumed. This is equally true as to mental suffering; for it is contrary to common experience and the laws of man’s existence and nature that any sane, healthy, and robust person by physical injuries may be made a cripple for life in a matter affecting his health, comfort, or capacity, without mental pain resulting from the changed condition. No proof is required to be made of those things which every person is presumed to know, and, as it is not required that proof be made of a fact necessarily resulting from facts proved, then it is not necessary to allege the resulting fact, for it is understood to be averred by the averment of the facts from which it necessarily results.”

We think appellee’s evidence brings the case within the rule announced in McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. Ed. 1162, in which objection was made upon appeal to a charge set out in the opinion. The court said:

“The jury are to consider mental suffering, past and future, found to be the necessary consequence of the loss of his leg. Where such mental suffering is a direct and necessary consequence of the physical injury, we think the jury may consider it. It is not unlikely that the court might have given more ample instructions in this respect, had it been requested so to do; but what was said Jimited the compensation to the direct consequences of the physical injury. * * * That there might be more or less continuous mental suffering directly * , * * , from a maiming of the plaintiff’s person in an injury of this character was probable, and where the jury was limited to that which resulted, from the injury we think there can be no valid objection to or just ground of complaint.” Railway Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591; 5 Sutherland on Damages (4th Ed.) § 1331.

The fourth assignment insists that the court erred in permitting Dr. R. D. Gist to> testify in behalf of the plaintiff as to the percentage of impaired earning capacity of plaintiff by reason of his injured condition, and the objection is urged that the witness should not have been permitted to give his opinion, when his own testimony shows that he was. not making a real estimate, but was merely-guessing. The record does not sustain the-statement that the witness’ own testimony shows that he,was not making a real estimate, and was only guessing.

Under the fifth assignment appellant contends that the court erred in not confining the jury, by special issue No. 8, to the negligence pleaded and proven, and that said special issue, when considered with the instruction given in connection therewith, is confusing and misleading. The eighth special issue, in referring to negligence, uses this language:

“And you so find under the issues hereinbe-fore submitted for your determination.”

Special issue No. 4, in dealing with the matter of negligence, uses this language:

“The way and manner and under the circumstances alleged in plaintiff’s petition.”

In special issues 5 and 6, the court submitted the question of appellee’s negligence as alleged in appellant’s answer, to both of which the jury answered “No.” When the-charge accompanying special issue No. 8 is considered in connection with the other special issues submitted, we think no error has been committed, and that the jury, in their deliberations, were necessarily confined to the-negligence pleaded and proven.

The court properly refused special charge No. 5, requested by appellant, as it assumes that the stringer, at the 'time appellee stepped upon it, had been fully landed upon the caps. Appellee’s pleading and proof show that this is not a fact, and the jury so found.

Under tile seventh assignment it is contended that the court erred in not submitting special issue No. 2, requested by appellant, presenting the defense of assumed risk. If we admit that each of the questions presented could have been answered most favorably for appellant, the court could not, in the face of other findings by the jury, have rendered a different judgment. There seems to have been little or no controversy upon the facts sought to be found. The work in which ap-pellee was engaged was hazardous. His own evidence shows that he was a bridge builder of considerable experience, and that the particular work in which he was engaged at the time of the injury was done in the ordinary manner and with the ordinary appliances. A finding of all of these facts could not have resulted in a different judgment, since the jury found that the negligence alleged was fully proven.

The failure of the court to submit special charge No. 3, for appellant, is the basis of the eighth assignment. The substance of this charge was submitted to the jury in special issues Nos. 5 and 6 of the court’s general charge. Special issue No. 3 is objectionable, because it assumes that the stringer was landed when appellee endeavored to step on it.

The ninth assignment is that the court erred in overruling, and not sustaining, defendant’s objections and exceptions to the supplemental instructions of the court to the jury, in answer to their question while deliberating upon their verdict, requesting the court to define the expression “ordinarily incident.” The objections were: (1) That the words snould be construed in their usual and ordinary significance, and the court should uot attempt to define them; (2) the definition by the court should be only that said words are to be understood as commonly and usually occurring and reasonably to be anticipated ’ by one in the character and kind of employment; (3) that the instruction given by the court is not applicable, and not responsive to the question, and is misleading; and (4) the latter paragraph, in reference to “habitual,” is erroneous, because whether an act of negligence is habitual or not, if the plaintiff knows, or in the course of employment should necessarily know, of the negligence, it may be ordinarily incident to the employment under the circumstances. The definition given by the court is as follows:

“By the expression ‘ordinarily incident’ to plaintiff’s employment is meant danger, if any, commonly and usually pertaining to and incident to the kind and character of plaintiff’s employment, and which a reasonably prudent person might anticipate might occur in such employment. Danger caused by an act of negligence, if any, on the part of the defendant or its employes, would not be danger ordinarily incident to plaintiff’s employment, unless such act of negligence, if any, had theretofore been habitual, and the plaintiff knew of it, or must necessarily have learned of it in the ordinary discharge of his own duty before he was injured, and should have anticipated its probable occurrence at the time he was injured, in which case danger caused by such negligence, if any, would be ordinarily incident to plaintiffs employment.”

We think the meaning of the term “ordinarily incident,” as defined by the court, is substantially correct. Freeman v. Fuller, 60 Tex. Civ. App. 242, 127 S. W. 1196. Paragraphs (e) and (f) of the general charge are as follows:

“(e) If there was danger to plaintiff’s safety in connection with the movement of the east end of the stringer by defendant’s foreman, did plaintiff, before the injury, and in time to avoid the same, know and appreciate the danger, if any there was, in connection therewith?
“(f) If there was any danger to plaintiff’s safety in connection with the movement of the stringer by defendant’s foreman, must plaintiff, in the ordinary discharge of his own duty, have necessarily learned and appreciated the danger, if any there was, in connection therewith, before and in time to have avoided injury?”

The definition as given by the court, when considered by the jury in connection with the two issues copied above, leaves no ground for supposing that the jury could have been misinformed. Appellee insists that the charge in this particular is more favorable to him than otherwise. In this contention we believe he is correct, since the evidence did not show that the risk was one ordinarily incident to the employment, but that he was required by the foreman to step on the west end of the stringer, which it was alleged was suddenly and unexpectedly moved by the foreman, and which caused him to lose his balance and fall to the ground.

What is here said also disposes of the tenth assignment.

The eleventh, twelfth) thirteenth, and fourteenth assignments attack the verdict and finding of the jury as contrary to, and not supported by, the evidence. These 'assignments are overruled.

By the fifteenth assignment it is insisted that the verdict and findings are inconsistent and contradictory, and are unsupported by the evidence. By special issue No. 5 the jury was asked:

“Did the plaintiff, at the time, place, in the manner, and under the circumstances alleged in paragraph 6 of defendant’s answer, attempt to step upon the stringer, lose his balance, and fall to the ground?”

This was answered in the negative. By special issue No. 6 -the jury was asked:

“If tbe plaintiff, at the time, place, in the manner, and under the circumstances alleged in paragraph 6 of defendant’s answer, did attempt to step upon the stringer, lose his balance, and fall to the ground: (a) Was the same negligence of plaintiff? (b) Was the same the proximate cause of the injuries to plaintiff or any of them, alleged in plaintiffs petition?”

Both of these questions were answered affirmatively; after having answered special issue No. 5 in the negative, it was unnecessary for the jury to answer special issue No. 6, and the affirmative answer returnea to this issue cannot be construed as a finding that the plaintiff was guilty of negligence, and that his negligence was the proximate cause of his injury, since the answer to special issue No. 5 precludes any such assumption ; nor is there any conflict shown by the answer of the jury'to special issue No. 7.

The sixteenth assignment of error assails the verdict as being excessive. Appellee was about 25 years of age at the time of the injury. His life expectancy was nearly 39 years. He was earning at the time of his injury $80 per month. Since the injury he has not been able to earn more than $9 per week. The difference between these sums during his life expectancy would be something over $12,000. This, when considered in connection with the pain and suffering and the condition of the bones in his feet, we think, is sufficient to sustain the verdict. Railway Co. v. Chatten, 185 S. W. 911; P. & N. T. Ry. Co. v. Trower, 61 Tex. Civ. App. 53, 130 S. W. 588; Railway Co. v. Martin, 161 S. W. 405.

The record presents no reversible error, and the judgment is affirmed.
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