text:
    GALVESTON, H. & S.A. RY. CO. v. WEBB.

    (No. 5575.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Master and Servant <&wkey;124r — Injuries to Servant — Safe Place to Work — Duty oe Inspection.
    Where a switchman was injured by jumping from a freight cur on which he was working when it was derailed for the second time in a few minutes because of rigidity in the trucks which caused the wheels to mount the rails and leave the track, the master was liable, the rigidity of the trucks being such that, had there been inspection, it must have been discovered, so that, if there was inspection, it was negligent, or the defect was concealed.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. <§=>124.]
    2. Master and Servant &wkey;>124 — Injuries to Servant — Safe Place to Work — Duty of Inspection.
    In such case the fact that the ear did not belong to the employer did not relieve him of the duty of inspection and, if a proper inspection would have disclosed the defect, the employer was still liable, where the car had been in his possession long enough to give opportunity for an inspection, and it was shown that some inspection was in fact made.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig-. §§ 235-242; Dec. Dig. <§=>124.]
    3. Master and Servant &wkey;>286 — Injuries to Servant — Liability of Master — Duty of Inspection — Question for Jury.
    In such case it was a question for the jury whether the inspection was properly made.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006. 1008, 1010-1015, 1017-1033. 1036-1042, 1044, 1046-1050; Dec. Dig. <§=>286.]
    4. Master and Servant <&wkey;lll — Injuries to Servant — “Defect” in Appliances.
    The rigidity in trucks of a freight car which caused the wheels to mount the rails and the car to be derailed is a “defect,” for failure to remedy which the master is liable for injury to a servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. <§=>111.
    'Eor other definitions, see Words and Phrases, First and Second Series, Defect.]*
    5. Master and Servant <§=>265 — Injuries to Servant — Liability of Master — Actions— Burden of Proof.
    Where a servant alleged injuries due to rigidity in the trucks of a freight ear on which he was a switchman, which caused the ear to leave the rails twice within a few minutes, it was unnecessary for him to show the cause of the defect, but it was suflieient to show that the truck was defective.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ .877-908, 955; Dec. Dig. <§=>265.]
    6. Damages <§=>132 — Personal Injuries — Excessive Damages.
    Whore the injuries of a switchman consisted of a bad heart, an erratic pulse, a wrecked nervous system, an injured spine, and a disordered stomach, bowels, kidneys, and bladder, the troubles being progressive, a verdict of $15,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. <§=>132.]
    7. Appeal and Error <&wkey;1004 — Scope of Review-Findings of Facts.
    In the absence of indicia of passion and prejudice, the verdict of the jury, based on evidence, cannot be disturbed by the court on appeal for excessiveness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8944^-3947; Dec. Dig. <§=> 1004.]
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Action by James Ross Webb against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant. Perry J. Lewis, Randolph L. Carter, 11. C. Carter, and Champe G. Carter, all of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit for damages alleged to have arisen by a derailment which occurred through the negligence of appellant in furnishing a car for appellee to ride upon in discharge of his duty as switchman, which was defective, in that—

“the running gear, bolster, and trucks of said car were out of order and defective and would not operate properly; that at the time of said derailment the trucks of said car would not operate so as to permit the wheels to follow the rails, but for some reason, the exact nature of which the-plaintiff does not know, the said trucks were caught and held too rigidly, and therefore the wheels would not adjust themselves and follow the rails, and the wheels of said trucks therefore left the rails.”

Other grounds of negligence were pleaded, but were not submitted to the jury, and therefore do not require mention. Appellant admitted derailment of the car on which appel-lee was riding, but denied that he was injured and that the car was defective as alleged and any negligence in connection therewith. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $15,000.-

The evidence showed that appellee was a switchman in the employ of appellant, and was foreman of the crew handling the engine and the derailed and other cars; that the car derailed did not belong to appellant, but was the property of the Lone Star Brewing Association, and was received by appellant from the Missouri, Kansas & Texas Railway Company 2 or 3 hours 'before the derailment occurred. The car was defective in its truck to such an extent that the wheels would not follow the rails, and while being moved by appellant it left the track, and ap-pellee, fearing disaster, jumped from the car, and, according to the testimony of doctors, was injured materially and permanently. The trucks were too rigid to allow the wheels to adjust themselves to the track, and a proper inspection would have disclosed the defect to appellant. Appellee and Freeman testified positively that the trucks were rigid and the wheels would not take curves, but would mount the rails and then jump the track. The car was derailed twice in 30 or 40 minutes. Appellant introduced no testimony to show that the trucks were not rigid as alleged. If there was a proper inspection of the car, as claimed by appellant, the rigidity of the trucks must necessarily have been discovered. It was either discovered and the facts suppressed, or there was negligence in the inspection. In either event appellant is liable. The jury found that the defect was not latent. The rigidity of the trucks undoubtedly caused the accident, and the evidence showed that a proper inspection would have revealed the defect. The first, second, and third assignments of error are overruled.

The fact that the car did not belong to appellant did not relieve appellant of the duty of inspection, and, if a proper inspection would have disclosed the defect in the trucks, appellant would not be relieved of liability for damages arising from such defect. There was no testimony offered by appellant tending to show a latent defect, but the facts clearly evidence that a proper inspection would have disclosed the condition of the trucks. The duty of inspection was just as obligatory upon appellant as to a car not owned by it, but in its possession, as in regard to its own cars. This rule is well established in Texas. Railway v. White, 76 Tex. 102, 13 S. W. 65, 18 Am. St. Rep. 33; Railway v. Kernan, 78 Tex. 294, 14 S. W. 668, 9 L. R. A. 703, 22 Am. St. Rep. 52; Railway v. Chambers, 17 Tex. Civ. App. 487, 43 S. W. 1090; Railway v. Parish, 93 S. W. 683. The car had been in the possession and under the control of appellant long enough to give opportunity for an inspection, and, in fact, it was shown that some sort of inspection was made.

It was a question of fact for a jury as to whether the inspection was'properly made or not, and the evidence justified a finding that the inspection was negligently made. It would seem that a defect that was so bad that it would derail a car twice in the distance of a mile or so was so apparent that any kind of an inspection would have disclosed it. The charge placed the matter fairly and squarely before the jury, and there was evidence to sustain the verdict.

It is useless to argue that such rigidity in trucks beneath a car as will cause the wheels to mount the rails in such a manner as to derail the car is not a defect in the trucks. The very fact that the trucks prevented the wheels from remaining on the track showed in no uncertain maimer that the trucks were out of order, imperfect, or defective. The fact that the trucks derail a car twice in a few minutes leads to the irresistible conclusion that they are defective.

It did not devolve upon appellee, as appellant seems to think, to show what caused the rigidity in the trucks, but he had met his allegations when he showed the trucks were rigid. The trucks were shown to be rigid to such an extent as to cause derailment, they should not have been in such rigid condition, and, if any reason for such rigidity existed, appellant might have shown it. Certainly appéllee was not called upon to show the cause of a defect in the instrumen-talities furnished him by appellant. There is no escape from the proposition that the trucks were rigid, that perfect or safe trucks are not in that condition, and therefore the trucks were defective.

The court gave the law pertinent to the issues, and it was not error to refuse the special charges requested by appellant. There was no evidence tending to show that the defect in the trucks was latent, but it appears from the testimony that a reasonably careful inspection would have revealed the defect. The evidence shows a very cursory inspection of the car. The eighth, ninth, and tenth assignments of error are overruled.

If the evidence of appellee and the doctors offered by him is to be credited, he is in a terrible condition as a result of his injuries received in jumping from the defective car. The jury credited the witnesses and based a very heavy verdict on their evidence, and this court is compelled to follow that verdict- in the absence of any indicia of passion and prejudice. According to the medical testimony, appellee has a bad heart, an erratic pulse, a wrecked nervous system, an injured spine, disordered stomach, bowels, kidneys, and bladder, and the troubles are progressive. If this be true, he is a physical wreck, and the damages accorded him cannot be held by this court to be excessive.

The judgment is affirmed.
      <§=>For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WEST TEXAS SUPPLY CO. v. DUNIVAN.
    (No. 8292.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 18, 1915.
    Rehearing Denied Jan. 22, 1916.)
    1. Appeal and Eeeoe <&wkey;724^-AssiGNMENTS OP EBROB—SUFFICIENCY.
    An assignment of error which is vague and uncertain, and does not point out any distinct error, need not be considered.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. &wkey;724J

      2. Appeal and Error <&wkey;736 — Assignments op Error — Sufficiency.
    An assignment of error should not be multifarious.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <&wkey;> 736.]
    3. Appeal and Error <&wkey;742 — Assignments op Error — Propositions.
    An assignment of error should he followed by a proposition germane thereto.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;>742.]
    4. Appeal and Error <&wkey;742 — Assignments op Error — Statements.
    An assignment of error should be followed by an appropriate statement.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742J
    5. Appeal and Error <§=>1078 — Briefs— Waiver of Error.
    Where no attack is made in the brief upon a special verdict, it is conclusive, as between the parties, under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1986, until set aside.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. &wkey; 1078.]
    6. Appeal and Error <&wkey;264 — Presentation of Grounds of Review — Exception.
    Where no exception was directed to a special verdict, the appellate court need not refer to the statement of facts to determine whether the evidence was sufficient to support it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. <&wkey;> 264.]
    7. Appeal and Error <&wkey;1052-iREViEW— Harmless Error — Evidence.
    Whore a special verdict that the contract whereby plaintiff purchased the property sued for was ratified by defendant’s directors, was not attacked, and so was conclusive, any error in allowing plaintiff to testify that he was the owner of such property is harmless, though the testimony elicited was a conclusion.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <§=> 1052.]
    8. Corporations <&wkey;426 — Act of Officers— Ratification.
    Where the directors ratify an unauthorized contract made by the manager of a corporation, such ratification relates back, and validates the contract from the beginning.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. 1§ 1596, 1702-1704, 1707, 1708, 1710-1716; Dec. Dig. &wkey;426.]
    9. Exchange of Property <&wkey;13 — Performance-Delivery.
    Where plaintiff relied on a contract whereby he was to exchange a certificate of stock for a set of tools, and it appeared that he offered to deliver the stock, but was told by defendant’s agent to wait until demand was made, plaintiff was entitled to recover, though there had been no delivery.
    [Ed. Note. — Eor other cases, see Exchange of Property, Cent. Dig. §§ 25-29; Dee. Dig. ©¿>13.]
    10. Appeal and Error <&wkey;230 — Presentation of Grounds of Review in Court Below — Necessity.
    The refusal of a requested charge will not be reviewed, where exceptions, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, were not taken at trial and objections were presented only by motion for new trial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. <&wkey;230; Trial, Cent. Dig. §§ ■680-682.]
    11. Exchange of Property &wkey;>13 — Actions —Evidence.
    Where plaintiff claimed that he acquired a set of tools from the defendant corporation under a Contract whereby he was to deliver to the corporation a certificate of stock which contract was made with one who was then manager, testimony by one who subsequently became manager at a time when plaintiff was using the tools that he made a different contract with plaintiff is admissible.
    [Ed. Note. — Eor other cases, see Exchange of Property, Cent. Dig. §§ 25-29; Dec. Dig. <§=> 13.]
    12. Appeal and Error <§=>1056 — Review— Harmless Error.
    In such case, though there was a discrepancy as to the dates in such witness’testimony, the refusal nevertheless was prejudicial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <§=>1056.]
    Appeal from Knox County Court; E. R. Howell, Judge.
    Action by J. T. Dunivan against the West Texas Supply Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Jas. A. Stephens, of Benjamin, for appellant. D, J. Brookreson, of Benjamin, for ap-pellee.
   BUCK, J.

Suit was filed in the county court of Knox county by J. T. Dunivan for the conversion of certain tinner’s tools and materials, aggregating the value of 8430.50, and 875 per month for the use of said tools, aggregating $275, and for $25 for labor alleged to have been performed by plaintiff for defendant. Plaintiff alleged that the defendant was a merchant engaged in the hardware, furniture, and implement business in the town of Benjamin, and kept a warehouse in the rear of the business house, and that plaintiff was keeping his said tools and materials in said warehouse, at the instance and request of defendant, and was using and occupying the same as a workshop for his tinner’s trade; that defendant unlawfully took possession of all of said tools and material and converted the same to its own use and benefit, to the plaintiff’s damage in the sum of $430.50. He further pleaded that he was deprived of the use of said tools and materials, and was thereby prevented from pursuing his business as a tinner, to his damage in the sum of $275 above mentioned. He further alleged that at the instance and request of defendant, he had done certain work in putting up five binders, for which the defendant promised to pay him the sum of $2.50 each and also did other work for defendant, amounting to $13. Attached to this petition as Exhibit A was a list of the materials and tools alleged to have been taken and converted by defendant.

Defendant demurred generally and specially to plaintiff’s petition, and after a specific denial of the allegations charging the conversion, it alleged that the tools and materials mentioned did not belong to plaintiff, but to defendant, and denied that it had deprived plaintiff of any right or privilege of pursuing the tinner’s work, or any other kind of work, in the town of Benjamin, but alleged that plaintiff of his own free will had abandoned the tinner’s work and secured work in the harvest fields and other employment. It further denied that it owed plaintiff for any work performed. Further pleading, it alleged that it was a corporation and that.plaintiff was a stockholder therein, and that the defendant, through its agent, turned over to him the materials and tools described, upon the agreement that plaintiff was to pay the defendant the invoice price for all materials used by him in said tinner’s business, and that the plaintiff was to have the use of said tools and to work for the defendant at odd times to pay for said use; that in pursuance of said agreement plaintiff took charge of said tools and materials and ran said tinner’s business until about the 15th day of June, 1914, at which time the plaintiff abandoned the tinner’s business and left the town of Benjamin and secured work with a threshing outfit, and has since said time remained away from said shop; that during the time the plaintiff was in charge of said tin shop, he used sundry materials which belonged to, and were the property of, this defendant, of the alleged value of $142.98, for which it prayed judgment.

In a supplemental petition, plaintiff denied the allegation of defendant as to the rental contract, and denied that he had.used either tools or material belonging to the defendant, and asserted that such tools and material used, other than those bought from defendant and for which payment had been made as originally pleaded, were purchased from other parties named.

The cause was submitted to the jury on special issues, and in answer to the issues presented by plaintiff the jury found as follows: (1 and 2) That on or about the 15th day of October, 1914, plaintiff owned and possessed the tools and material contained in the itemized statement attached to plaintiff’s petition; (3, 4, and 5) that the defendant appropriated to its own use and benefit, without the consent of the plaintiff, the tools of the value of $196.30 and material of the value of $234.20; (6) that plaintiff could have reasonably earned, from the use of said tools and material from the 15th day of October, 1914, to the time of trial, January 25, 1915, $137.50; (7) that the defendant owed the plaintiff for labor performed, at the instance and request of defendant, $23.00; (8) that plaintiff owed the defendant, for goods procured and bought of defendant, nothing.

At the request of defendant the following issues were presented and the jury answered as indicated:

(1)Did the plaintiff trade for the tin shop from the defendant? Answer: Yes.
(2) If yea, what did the plaintiff give defendant for the tin shop ? Answer: Stock.
(3) Did the board of directors of the defendant corporation ratify and approve the sale or exchange of the tin shop for the plaintiff’s stock in defendant corporation? Answer: Yes.

Upon these answers of the jury to the special issues submitted, the court rendered judgment for the plaintiff in the sum of $591, from which judgment the defendant appeals.

The evidence tends to show that Dunivan owned five shares of capital stock in the defendant company of the face value of $500, and that J. P. Albright, defendant’s general manager and vice president, by request of W. T. Finn, its president, traded said tools and lists of supplies to Dunivan for $300 of said shares of stock, and turned over said tools and material to said Dunivan and told him to use the back room of the warehouse to work in, and that he could work for said company at odd times instead of paying rent, and that whenever plaintiff worked as much as a half day at a time he would be paid for it; that Dunivan offered to go and get his shares of stock, which he had placed as collateral with Bob Gray, from whom he had purchased the same, but Albright told him that he need not do it then; that Mr. Finn, who lived at Seymour, would attend to issuing the new stock, and he could get it later. The $500 worth of stock was all in one certificate, and Albright told plaintiff that he expected Finn would issue new certificates, one back to 'Dunivan for $200, and that he supposed Finn would either hold the rest as treasury stock, or sell it to some one else. Dunivan continued to work at the tinner’s trade, his shop being, as heretofore stated, in the rear of the warehouse, until some time in the summer of 1914, when he left to work in the harvest fields. On his return, about October 15, 1914, he found another man in charge of the shop and using the tools and materials. Mr. Lanham, who had succeeded J. F. Albright, or at least was acting as manager, told him that Finn, the president, had instructed him to do this. Dunivan testified that while he was running the shop he made from $75 to $100 a month, and that, if he had not been prevented from continuing the work, he would have made said amount up until the time of the trial. He further testified that he would have gotten the shares of stock and delivered the same to John Albright for the benefit of the defendant company if Al-bright had not told him what he did; that he had never offered the stock to Finn or to the board of directors, but did offer it to Mr. U. S. Nicks, who was then acting as manager, but that the latter said he knew nothing about the trade and would not take the stock.

Mr. Albright testified, oh behalf of plaintiff, that he was .the vice president and general manager of the defendant company for seven or eight years, and that about September, 1913, Mr. Finn, president of the company, was in Benjamin and liad a talk with Mm, and stated the expenses were too heavy, and instructed him to discharge Dunivan, who was working for the company at that time. Albright told him that he had- hired Dunivan for a year, and that his time was not out yet, and that he could not discharge him under the agreement; that Finn asked him if he could not trade Dunivan out some way to stop his wages, and that Albright replied that he had talked the matter over with Dunivan, and that he could trade him the tin shop for his stock as far as it went; that Finn then instructed him to go ahead and make the trade; that he then saw Dun-ivan and made the trade just like Finn had instructed him to do, Dunivan agreeing to take the tools and materials at the invoice price and let the company take enough of his stock at its face value to cover the amount; that Dunivan offered to go and get the stock, but that he (Albright) told him to wait until Finn came back to make the transfer of stock, as the latter always attended to that; that he and Dunivan went ahead and invoiced the tools and materials, and that they amounted to a fraction less than $300, and that he turned it over to Dunivan and closed up the trade about September 1, 1913; that lie stayed with the company as its manager until about November 1, 1913, and Finn never made any objection about the trade while Albright was there, nor had he ever heard of any due else objecting thereto while he was in charge of the store. He further testified that during all the time he was manager of the company there was never a meeting of directors, nor had he ever heard of such meeting; that he made this trade, just like he had done everything else, under instructions from W. T. Finn; that no directors had ever complained to him for following Finn’s instructions. 1-Ie denied that he had ever received a letter from Finn, Instructing him not to make the deal with Dunivan, though while he was manager he received all the mail directed to the com-jiany. Such other evidence as will be necessary to note will be given hereafter in the course of this opinion.

Appellant’s first assignment of error is directed to the action of the court in overruling its special exception leveled at a portion of the plaintiff’s petition, which it is alleged charges the defendant with using said tools and having a man in charge of same and “doing the tinner’s work at Benjamin, which rightfully belonged to plaintiff.” We think appellee’s objections to the consideration of said assignment should be sustained, on the ground that the assignment is too vague and uncertain and does not distinctly point out any particular error and is multifarious, and that the proposition thereunder is not germane thereto, and that it is not followed by any statement, etc. But in this, -disposition of the assignment we feel that no possible denial of any right to appellant can be charged, because in plaintiff’s supplemental petition he plainly shows that he did not intend, by the language used, to allege in his original petition and in the paragraph to which the objection is urged that he had any monopoly of the tinner’s business in Benjamin, but merely intended to allege that he had been deprived of pursuing the tinner’s business in said town by reason of the acts of defendant alleged.

The second assignment complains of the refusal of the court to exclude the testimony of the plaintiff, to the effect that he owned the tin shop and tools in the town of Benjamin, said testimony being as follows:

“I am the owner of the tools and materials as shown in the list in the petition. Mr. W. T. Finn, president of the West Texas Supply Company, wrote a letter to John Albright and told John to trade me this tin shop and material for my stock certificate in defendant company. John Albright told me they would give me the tools and material for my stock in the company. At that time my stock was placed with Bob Gray as security for a note I owed Bob Gray, I told John Albright that I would get the stock, but he told me that I need not do so; that Sir. Finn would have to issue the stock. Albright invoiced and delivered the goods to me; I never at any time tendered the stock to Mr. Finn or any of the directors.”

The exception to the admission of this testimony is contained in bill of exception No. 2, instead of bill No. 1, as alleged by appellant in its brief, and the court in his qualification of said bill states that only the first sentence of the above-quoted testimony was brought out by plaintiff on direct examination, and that the balance thereof was brought out on cross-examination by defendant — •

“and in the opinion of the court is not germane to this bill, as defendant made a verbal motion to withdraw said testimony from the consideration of the jury, and a separate bill should be predicated on such action of the court on said verbal motion.”

As limited by the proposition under this assignment, appellant’s complaint is directed only to the refusal of the court to exclude said first sentence above, to the effect that he owned the tinner’s tools, because it was a conclusion of the witness—

“and the cross-examination of the witness showed that his claim for the tinner’s tools was a trade made by two of the directors, without authority of the board of directors, whereby they traded Dunivan the tinner’s tools for his stock certificate in appellant company, and that the stock certificate had never been delivered to appellant at the time of the supposed trade, or tendered into court.”

The jury found, in answer to an issue presented by the defendant, that the board of directors of the defendant company ratified and approved the sale or exchange of the tin shop for the plaintiff’s stock in the corporation. No attack is made in the brief upon this finding, and therefore it becomes conclusive as between the parties until it is set aside. Article 1986, Vernon’s Sayles’ Texas Civil Statutes. No exception having been directed to said answer, we are not required to refer to the statement of facts to see whether or not the evidence is sufficient to sustain that portion of the verdict. Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967. Moreover, it has been held that:

“Ownership of personal property is a fact that can be proved by oral testimony, given by one who has adequate knowledge.” 9 Bncyc. of Evidence, p. 263; also Supp. same work, 1915, vol. 9, 1405, and cases there cited.
“Ownership of personal property is a fact to which a witness may testify; and on cross-examination he may be required to state the facts on which the claim of ownership rests.” Steiner v. Tranum, 98 Ala. 315, 13 South. 365.
“A statement by a witness that certain property in controversy belongs to him is not inadmissible as a conclusion, since the question calls for a fact as well as for a conclusion.” Murphy v. Olberding, 107 Iowa, 547, 78 N. W. 205.

But some of us doubt whether the authorities in this state go to the extent of those cited, and prefer to base our action in overruling this assignment on the ground that the error, if any, was rendered harmless by the unchallenged finding of the jury above mentioned. The evidence is practically undisputed that John Albright, the vice president and manager of the defendant corporation, made the trade as alleged by plaintiff.

The third assignment is as follows:

“You are instructed that before you can find that the tools and tin shop is the property of the plaintiff, you must find: First, that the board of directors authorized J. F. Albright to exchange the tools, tin shop, and material for the plaintiff’s stock; second, you must find that the plaintiff delivered to the defendant his stock certificate, and, unless you so find, you will find for the defendant.”

The failure of the court to give this instruction is urged as error for. the following reasons, to wit:

“(1) Before the defendant could in any way be bound by the contract, it was incumbent upon the plaintiff to prove, not only that Albright was the agent of the defendant, 'and [but] that the board of directors had authorized said Al-bright to make the contract with plaintiff. (2) It was the duty of the court to construe and instruct the jury as to the legal effect of the contract ; and, as the court nowhere instructed the jury as to the legal effect of this contract, the refusal of this charge was error.”

Upon the first point, even though said contract had been made by J. F. Albright without express authority by the directors, and admitting, for the time, that said Albright had no such apparent authority, by reason of the position he occupied in said company, yet, after learning .that said contract had been made, the board of directors ratified it, as found by the jury, such ratification would be equivalent to precedent authority.

“By ratifying an unauthorized act, a principal assumes and adopts it as his own, and, as has been seen, this adoption extends to the whole of the act — it goes back to its inception and continues to its legitimate end.” Mechem on Agency, § 167, p. 108.

Therefore, if the directors ratified the action of Albright in 'making the trade he did, such ratification was tantamount to and had the legal effect of prior authority.

Upon the second question involved in this requested charge, there is no material conflict in the testimony as to what took place with reference to the delivery of the stock certificate. Both Albright and Dunivan testified that the latter offered to turn over to the former the $500 worth of stock in order that he might receive a new certificate for $200, and also surrender the value of $300 in shares of stock in payment of the tools and material, but that Albright told Dunivan to keep the shares of stock for the present, and that as soon as Finn came down from Seymour, he would issue the $200 certificate to Dunivan. The unchallenged finding of the jury in answer to issues 1 and 2, submitted by the defendant, is that the plaintiff did trade for the tin shop from the defendant and gave him stock in exchange therefor. We held in the ease of Railway v. Wheat, 173 S. W. 974, that objections to instructions given and refused will not be considered where the record does not -show that exceptions were taken as required by article 2061, Vernon’s Say les’ Texas Civil Statutes. No bill of exception is contained in the record, complaining of the action of the court in this respect in the instant case. Therefore, if we were correct in the holding in the Wheat Case, upon the authorities therein cited, we would be justified in refusing to consider this assignment. The transcript in the instant case shows that the instruction as above set out was asked by the defendant, and by the court refused, but in its motion for a new trial, where he purports to set out this instruction and allege error because of its refusal, an instruction, different in wording, though probably to the same general effect, is given. Probably this evident variance would suggest another ground for our declining to consider the assignment, even though we should be of the opinion that the instruction tendered ought to have been given. But if we should consider the assignment, we would overrule the same, because, for the reasons stated, we do not find that it presents prejudicial error.

For like reason we overrule the fourth assignment, which urges error in the refusal of the court to give what the appellant designates as “special charge No. 3,” which is in the form as given in the motion for new trial. This charge appears in the transcript as “special charge No. I,” and the assignment raises the same question as presented, in the main, in the third specification, and for the reasons given in the discussion of the former assignment, this assignment also is overruled.

The eighth assignment complains .of the action of the court in not permitting U. S. Nicks to testify, to the effect that said Nicks made a trade with plaintiff during the latter part of September, 1913, whereby the plaintiff was to use the tools of the West Texas Supply Company, and for which the plaintiff was to work for the defendant in its store at odd times to pay for the use of said tools. We think this testimony should have been admitted. The plaintiff testified that he made the trade with Al-bright about September 1, 1913. Nicks testified that he was manager for the defendant company from about the 1st of November, 1913, to the 7th day of March, 1914, and that while he was manager of said company, Dunivan was running the tin shop. If, as claimed by appellant, Nicks would have testified that he made such a trade with Dunivan subsequent to the alleged trade between Dunivan and Albright, such testimony would have had a tendency to discredit the evidence of plaintiff as to the prior trade; and we do not think that the prejudicial error is removed by the fact that the bill of exceptions shows that Nicks would have testified that this contract between Nicks and plaintiff occurred the latter part of September, 1913, while the testimony of Nicks shows that he did not become manager until November of that year. This discrepancy as to date would affect rather the weight of the evidence than the admissibility thereof. It is probable by cross-examination, or by having his attention called to the apparent discrepancy, the same would have been removed or reconciled. The assignment is sustained.

There are various other assignments presented in appellant’s brief, but we do not feel that any good purpose can be advanced by their consideration, since under our view hereinabove expressed, the judgment of the trial court must be reversed and the cause remanded, and the questions raised in the assignment not discussed will not likely occur on another trial.

The judgment is reversed, and the cause remanded.
      <S=^For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

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


author: DUNKLIN, J.

text:
    ALLEN v. CARPENTER et al.
    (No. 8403.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 8, 1916.)
    1. ExecutioN &wkey;>172 — Restraining Sale on Execution — Necessary Parties.
    In a suit to restrain a constable from selling property under execution to satisfy a judgment, the judgment creditor was a necessary party defendant, as the constable was but a ministerial officer acting for the owner of the judgment, who was the only party interested in its collection.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. JJ 519-539; Dec. Dig. &wkey;172J
    2. Injunction &wkey;>7 — Restraining Execution Sale — Right to Maintain.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, authorizing the issuance of an injunction where it shall appear that the party applying for the writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant, a party whose property is levied on under execution against another party is entitled to sue for an injunction to restrain the sale thereof, and is not limited to her statutory remedy of trial of rights of property.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. &wkey;7.]
    Appeal from Wichita County Court; T. R. Boone, Special Judge.
    Suit by Mrs. Irma Carpenter and husband against W. W. Allen and others. From an order overruling a motion to dissolve a writ of injunction, defendant named appeals.
    Writ dissolved, judgment reversed, and cause remanded, with instructions.
    Bonner & Bonner, of Wichita Falls, for appellant. W. F. Weeks, of Wichita Falls, for appellees.
   DUNKLIN, J.

At the instance of Mrs. Irma Carpenter, joined by her husband, M. H. Carpenter, a temporary writ of injunction was issued restraining W. W. Allen, constable of precinct No. 1, Wichita county, from selling a motorboat alleged to be the separate property of Mrs. Carpenter, upon which the constable had levied an execution to satisfy a judgment in favor of the Ferris-Dunlap Auto Supply Company against M. H. Carpenter. From an order overruling a motion to dissolve the writ, Allen has appealed. In the petition for the injunction the only party made defendant was W. W. Allen, who, it was alleged, acted as constable in making the levy to collect the judgment.

One of the grounds urged for dissolution of the injunction was a lack of a necessary-party defendant, namely, the Ferris-Dunlap Auto Supply Company, owner of the judgment by virtue of which the levy had been made, and having its principal office and place of business in Dallas county, Tex. In overruling that exception there was error, for which the order overruling the motion to dissolve the injunction must be reversed. Allen was but a ministerial officer acting for the owner of the judgment, who was the only party interested in its collection, and hence a necessary party to the suit. McCanless v. Gray, 153 S. W. 174; Acme Cement Plaster Co. v. Keys, 167 S. W. 186; 22 Cyc. 915.

We overrule the further contention presented by appellant that an injunction would not lie in view of the fact that Mrs. Carpenter could have resorted to the statutory remedy of trial of rights of property to protect her alleged, title to the boat levied on.

By article 4643, 3 Vernon’s Sayles’ Tex. Civ. Stat., it is provided that an injunction may issue “where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any art thereof requires the restraint of some act prejudicial to the applicant.” This is an enlargement of the old equity rule according to which no injunction would issue if the party complaining had an adequate remedy at law; and under the allegations of her petition Mrs. Carpenter was entitled to invoke the benefits of that statute. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994.

Eor the reasons indicated, the judgment is reversed, the temporary writ of injunction dissolved, and the cause remanded, with instructions that the suit be dismissed unless the owner of the judgment upon which the execution was issued is made a party defendant, and the injunction made to apply to such owner as well as to the constable.
      @^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TURNER et al. v. McKINNEY.
    (No. 8293.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 18, 1915.
    Rehearing Denied Jan. 15, 1916.)
    1. Master and Servant &wkey;>286 — Action tor Injury — Sufficiency of Evidence.
    On evidence, in a railroad employe’s action for injuries when the sides of a ditch he was working in caved in on the grounds of defendant’s negligence in having it dug so deep and narrow without propping the sides, that defendant knew it was dug through filled land hut failed to warn and instruct plaintiff, who did not know it, that defendant knew the work was dangerous but did not warn plaintiff of the danger, and that defendant was negligent in not inspecting the ditch to discover the probability of a cave-in, held, that there was no error in overruling defendant’s motion to instruct a verdict.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <&wkey;>286.]
    2. Master and Servant <&wkey;278 — Action for Injury — Sufficiency of Evidence — Knowledge of Danger.
    Evidence, in such action, held to justify a finding that the dangers incident to the work in which plaintiff was engaged were known to defendant and its foreman and were not known to plaintiff.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]
    3. Master and Servant <&wkey;101, 102 — Master’s Duty — Safe Place to Work.
    A master is bound to exercise ordinary care to furnish a safe place for his servants to work.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. &wkey;101, 102.]
    4. Master and Servant &wkey;>205 — Assumption of Risk — Reliance on Care of Master-Railroads.
    A servant is not required, to inspect the place where his master has put him to work, but has the right to assume that the place furnished by the master is safe.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. i&wkey; 205.]
    5. Trial <&wkey;260 — Instructions — Requests Covered.
    In a railroad employé’s action for injury from a cavo-in of the sides of a ditch in which he was working, the refusal of an instruction, that if the dangers and risks incident to the work were obvious to a person of ordinary intelligence and prudence situated as plaintiff was at the time of his injury he could not recover, was not error, where the court charged that plaintiff while in defendant’s employ assumed the risks ordinarily incident to the services which he undertook and such risks as he knew or by the exercise of ordinary care- should have known of, and that if plaintiff knew of the dangers of his work, or should have known of them, he could not recover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    6. Trial ¡&wkey;194^-lNSTRUCTiONS — Weight of Evidence.
    A requested instruction which was on the weight of the evidence was properly refused.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446^154, 456-466; Dec. Dig. <&wkey;194.]
    7. Trial <&wkey;260 — Requested Instructions— Given Instructions.
    The refusal of a requested instruction was not error, where the law involved therein was sufficiently given in the court’s main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    8. Damages <&wkey;208 — Instructions—Mental Anguish and Physical Pain — Evidence.
    Evidence, in a railroad servant’s action for permanent injury to his collar bone and abdomen, held sufficient to justify a submission of the question of his future mental anguish and physical pain.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec; Dig. &wkey;208.]
    9. Damages <&wkey;50 — Elements—Mental Suffering.
    Mental suffering will be implied from illness or injuries accompanied by physical pain, and may arise from a sense of discomfort or inconvenience.
    [Ed. Note. — Eor other eases, see Damages, Cent. Dig. §§ 100, 255, 257-259; Dec. Dig. &wkey; 50.]
    10. Witnesses <&wkey;344 — Impeachment—Civil Action.
    A witness in a civil action cannot be impeached by requiring him to testify to discreditable acts on his part having no material bearing on the issues involved in the case.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;>344.]
    11. Witnesses <&wkey;344 — Party to Civil Suit as Witness — Impeachment.
    In a railroad employé’s action for personal injury, where plaintiff, on cross-examination, testified that he had left another state looking for work and not because he had been indicted or had jumped bond, the exclusion of the testimony of a private detective, who would have stated that plaintiff told him he left the other state in the nighttime after he had gotten away from two officers, one of whom was the sheriff, and that a whisky charge was then pending against him, offered in support of defendant’s claim that plaintiff was not injured at all, and upon whether he was able to labor, and whether he was the kind of man who would seek work, and whether since his injury he had sought work, together with an instruction not to consider any of the testimony under those issues, was proper.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;344.]
    Appeal from District 'Court, Tarrant County; R. B. Young, Judge.
    Action by J. S. McKinney against Avery Turner and another, receivers of the Et. Worth ■& Rio Grande Railway Company. Judgment for plaintiff, and defendants appeal.
    Affirmed.

      Lockett & Rowe, of Et. Worth, for appellants. Ben M. Terrel and W. 0. Prewitt, both of Et. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

Suit was brought by appellee, J. S. McKinney, against tbe appellants, for damages in tbe sum of $30,000, for alleged injuries received by him while engaged in laying tiling in the bottom of a ditch some 28 inches wide and 13 feet deep, in tbe course of construction in appellant’s roundhouse in its west yards near the city of Et. Worth. The ditch was constructed for the purpose of draining a pit or excavation underneath the repair track in the roundhouse. The ditch was some 60 feet long and extended beyond the roundhouse. Plaintiff alleged negligence upon the part of the defendants in the following particulars: (a) In having the ditch dug so deep and narrow without having the sides thereof sloped or propped and braced; that the dirt through which the ditch was dug was filled ground and more liable to cave in than ordinary ground; that such facts were known to defendants, but were unknown to plaintiff, and could not have been known by tbe exercise of ordinary care, and that defendants failed to warn and instruct plaintiff, as was their duty, (b) That the def&ndants’ foreman and vice principals knew, or by the exercise of ordinary care ought to have known, that tbe work upon which plaintiff was engaged was dangerous, and it was their duty to instruct plaintiff of the danger existing and how to avoid the same, (c) That defendants were guilty of negligence in failing to brace and sheath said ditch, in failing to furnish suitable material for such purpose, in failing to properly inspect said ditch as it was dug, for the purpose of discovering the probability of its slipping or caving in, and in permitting plaintiff to work in a place known, or which should have been known by them in the exercise of ordinary care, to be dangerous, (d) In assuring plaintiff prior to said injuries that there was no danger of the ditch caving in on him and hurting him. Plaintiff further alleged that at the time of the injuries complained of he was doing nothing which could make, or did make, any change in the nature or character of said ditch, or which affected the risks or danger from tbe caving in or slipping of dirt in said ditch. Plaintiff’s injuries were caused by the caving in or slipping of the sides of the ditch, and consisted, as alleged, and in part proven, in a broken collar bone, fractured ribs, injuries to bis abdomen, etc. The case was submitted to the jury on a general charge, and, from a verdict and judgment in favor of the plaintiff in the sum of $1,500, the defendants appeal.

Appellants’ first assignment is directed to the refusal of tbe court to peremptorily instruct the jury in favor of the defendants because:

“(a) The undisputed facts adduced in evidence upon the trial of this cause show that, at the time the plaintiff sustained his injuries, the defendants, receivers of the Ft. Worth & Rio Grande Railway Company were engaged in interstate commerce, and that, at the time of the injuries alleged by plaintiff to have been sustained by him, plaintiff, J. S. McKinney, was engaged in interstate commerce, (b) Because, under the undisputed facts adduced upon the trial of this cause, it is shown that the plaintiff, J. S. McKinney, assumed the risk of injury and the injuries sustained by him while employed in working in the ditch which caved in upon him and injured him. (c) Because no acts of negligence are established by the evidence against these defendants.”

Defendants alleged in their answer that, at tbe time of plaintiff’s injuries, both plaintiff and defendants were engaged in interstate commerce, which allegation plaintiff, in his supplemental answer, denied. The court charged the jury that at the time of the injury, if any, both plaintiff and defendants were engaged in interstate commerce. While we question whether the facts conclusively showed, if at all, the state character of the employment at the time of plaintiff’s injuries', yet in view of the full charge given by tbe court, both on assumed risk and contributory negligence, we cannot see that it would make any difference in so far as the appellants are concerned, whether the service in which plaintiff and defendants were engaged at the time of the accident was interstate or intrastate in its character. Appellants’ first proposition under this assignment is that:

“Where appellee’s own evidence shows that he had been engaged with others at various times over a period of two weeks in constructing a ditch 60 feet long and of an average depth of 12 to 13 feet, and that for two days prior to his alleged injuries he and a companion had been engaged in digging in the bottom of such ditch and laying tiling therein, and that he was so engaged immediately before and at the time of the accident to him, and that the portion of the ditch in which he had been working the day he was injured, and at the time he was injured, was 13 feet deep and of an average width of 26 to 28 inches, the walls of same being of black earth and of the depth stated, and that same were not sloped; and where the undisputed evidence show’s that his foreman upon discovering that appellee and his companion were working in a portion of said ditch, of which the walls- and sides were not sloped, told appellee to stay out of same until the sides were sloped, and that, after appellee and his companion got out of the ditch, other employes were put to work sloping the sides of the ditch, but that appellee, after his foreman left, re-entered said ditch, and while working in same was injured as alleged by him— he assumed the risks of such injuries, and there-can be no recovery by him for damages sustained thereby.”

In the first place, both plaintiff and Jeff Musick, who was working with plaintiff in the ditch at the time of the injury, deny that they were told by the foreman to stay out of the ditch until the sides were sloped, or that they were told by the foreman, or any one else, that it was dangerous. Plaintiff testified:

“We had a foreman of that gang. His name was J. H. McCarver, and W. A. Gresswell was the straw boss. * * * The foreman, John Mc-Carver, saw this ditch twice a day and some times more while it was being dug. * * * Bill Oresswell stayed there with the gang the majority of the time, looking right down there in the ditch where the work was being done; he kept right in after us all the time. * * * The night before this accident happened, Mr. McCarver, the foreman, told Jeff Musick in a conversation I heard that as we approached the concrete wall: T think it will be all right; the concrete wall will make it safer there.’ He says, ‘There ain’t any danger in it whatever.’ * * • The way I came to be in this ditch the day I got hurt, Oresswell, straw boss, told me to go in there and lay this tile. * * * When I was told to go into the ditch, I was told to get in there and lay the tile and get through with it. * * * It is not a fact that Oresswell, one of the foremen, came out there to where Jeff Musick and I were working in that ditch and told us to get out of there and cool off, and then went back and told some of the boys to slope the sides of that ditch where we were working. Both Musick and I did not get out of that ditch at any time and cool off, and I don’t know it to be a fact that we went back into the ditch and stated that we were not afraid of it and went to work against the instructions of the foreman in charge of the work, and that then the ditch caved in on me. That is not so. I never heard that neither.”

It is true that Oresswell testified:

“On that day I was working out there, and I came into the roundhouse where McKinney and Musick were at work, and they were down in the ditch digging. They had dug this ditch back after I left, and then, when I came in there, they had got too far back in the ditch and they had not sloped it like I would have left it when I was there myself, so I says, ‘Jim, you and Jeff come out.’ I says, ‘You are warm, and you get some water and rest until these boys slope this back,’ and I turned around and goes back to my work on the outside, and in about 30 minutes there was a negro ran out there, and he says, ‘Boss, one of your men in yonder is covered up head and cars,’ and I went right back in there and went to work. I found it was McKinney that was covered up. He was one of the fellows I had told to come out of there until the sides were sloped.”

So that it will be seen, upon the question of warning and instruction by the foreman to plaintiff and Musick to come out of the ditch for the purpose of having the sides sloped so that they might be safer, there is a sharp conflict in the evidence. Moreover, there is sufficient evidence to support the conclusion that plaintiff did not know of the character of the soil, that it was filled-in soil, and did not know of the danger from caving, while defendant’s foreman did know. Upon this issue the plaintiff testified:

“While this ditch was being dug, I put some crossings in at Holloway, and I unloaded some timbers and worked out here in the old Ft. Worth & Rio Grande building, putting in some shelves, and I lined up some bridges and done lots of work like that — surfacing them. * * * I had never helped to dig but one ditch before this one. I had helped to dig a ditch, but it was only about 3% or 4 feet deep. It was there in the west yards and on the outside of the roundhouse. * * * I did not know the difference between the natural earth and filled-in dirt when I was digging in this ditch; I did not know the difference in the soil when I saw it. I had not had any experience along that line. I expect I would know it now if I was digging in a ditch. * * * It was not very light in this ditch in which I was injured. This roundhouse was round on one side, and on the south side of the roundhouse were doors whei-e the engines came in on the tracks, and they were all closed up except the one where the blacksmiths work in there, and the windows were all closed down. There were plenty of windows on one side of the roundhouse, but they were dirty and closed down. The roundhouse was covered over.”

Oresswell testified:

“I knew about this dirt caving in on Freeman, and I knew it was dangerous. * * * Sure I did. As long as I stayed there, whenever it began to cave in, I sloped it. * * * In order to secure the safety of the ditch, we first put some boards across the ditch, and the dirt slid under that, and we saw that the brace would not hold it, and we taken the boards out”

From the testimony quoted, and from other testimony of like import, we are unable to conclude that the jury were not justified in finding that the dangers incident to the work in which plaintiff was engaged were not known to the defendants and to their foreman, or that they were known to the plaintiff. There is some testimony in the record to the effect that filled-in dirt, and especially black dirt, is likely to cave. In addition to the presumption, perhaps justified, that the defendants had knowledge that the ground within 'the roundhouse was filled-in dirt, and that there was danger of its caving because of its character, there is ample evidence, as has been noted, that their foreman knew such to be the case and that ap-pellee did not know it. Appellants cite us to the cases of Railway v. French, 86 Tex. 96, 23 S. W. 642, Ft. Worth Stockyards Co. v. Whittenburg, 34 Tex. Civ. App. 163, 78 S. W. 363, by this court, Hightower v. Gray, 36 Tex. Civ. App. 674, 83 S. W. 254, and other cases holding, in effect, that when the dangers and hazards incident to an employment are open to the observation of any man of reasonable intelligence, and such dangers and hazards are as open to the observation of the servant as to the master, the servant cannot recover for injuries sustained while engaged in such work. But we do not believe that the facts in this case bring it within that class.

A master is bound to exercise ordinary care to furnish a safe place for his servants to work, and it is not their duty to inspect the place so furnished. In City of Austin v. Gress, 156 S. W. 535, where the plaintiff, an ordinary laborer, was injured while tamping dirt around a pipe in a ditch four feet wide and twelve feet deep by a caving in of the side of the ditch, and the evidence was conflicting as to the character of earth, and it was shown that walls dug by the city in the immediate neighborhood without supporting walls did not cave, and the work of digging the dirt was superintended by the city’s chief engineer, and it was shown that he had not considered the dirt in danger of caving, and that plaintiff had no experience in such work, it was held that the danger was not I so obvious as to charge plaintiff with the assumption of the risk. In Gordon Jones Construction Co. v. Lopez, 172 S. W. 987, tire San Antonio court held that where plaintiff, while assisting in taking down a wall, stepped on a plaster of paris cornice or molding which broke off, precipitating plaintiff to the earth below, the danger of stepping on the cornice was not, as a matter of law, as open and apparent to plaintiff as to defendant’s vice principal, nor so apparent that a 'man of ordinary prudence would not have stepped on it. See, also, Railway v. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264, where a switch-man on the first day of his employment in the yards of defendant had his foot caught in a frog and was killed. It was held that a recovery should be sustained. Therefore we hold that the trial court did not err in overruling defendant’s motion to instruct a verdict for the defendants.

What we have hereinabove said disposes also of the second assignment, which complains of the action of the court in refusing defendants’ special charge No. 1 instructing* a verdict for the defendants.

The third specification of error is directed to the refusal of the court to give the following special charge tendered by defendants :

“You are further instructed that if you believe from the evidence that the plaintiff had equal opportunity with the defendants, their agents and servants, to observe and discover the risks and dangers incident to the work upon which plaintiff was engaged, under the facts, circumstances, and conditions existing at the time plaintiff alleges he received his injuries, then you are instructed that the plaintiff is not entitled to recover herein, and you will return a verdict in favor of the defendants.”

As before observed, the servant is not required to make inspection of the place where his master has put him to work, but has the right to assume that the place the master has furnished is safe. In Railway v. Hannig, 91 Tex. 347, 43 S. W. 508, the Supreme Court says:

“We understand the law to be that, when the servant enters the employment of the master, he has the light to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work are reasonably safe and that the business is conducted in a reasonably safe manner. He is not required to use ordinary care to see whether this has been done or not. He does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his own duty must necessarily have acquired the knowledge. Bonnet v. Railway Co., 89 Tex. 72 [33 S. W. 334]; Ry. v. Bingle, 91 Tex. 287 [42 S. W. 971].”

Therefore the third assignment is overruled, and likewise the fourth, which raises questions already considered and disposed of in this opinion.

The fifth assignment is urged to the refusal of the court to give the following instruction:

“You are further instructed as the law of this case that if you believe from the evidence that the dangers and risks incident to the work upon which plaintiff was engaged were open and obvious to a person of ordinary intelligence and prudence, situated as plaintiff was at the time of the injuries alleged by him to have been received, the plaintiff is not entitled to recover, and you will return a verdict in favor of the defendant.”

In the court’s charge the jury were instructed that plaintiff, while in the employ of defendants, assumed such risks as were ordinarily incident to the service which he undertook, and such risks as he knew of, or by the exercise of ordinary care in the discharge of his duties he would have known of, and they were further instructed that if they found and believed from the evidence “that plaintiff, J. S. McKinney, received the injuries complained of in his petition, and in the manner described therein, yet if you further find that he knew of the dangers, if any, with such work at said time and place, or by the exercise of ordinary care for his own safety he could have known of such dangers, then you will find for the defendants.” The court further charged the jury that, while it was the duty of the defendants to exercise ordinary care to furnish to plaintiff a reasonably safe place in which to perform the work assigned to him, yet if they found and believed from the evidence that immediately before and at the time of plaintiff’s injuries, if any, he was then doing some act which affected the safety of said ditch, then in such event they would find in favor of the defendants. We believe the charge quoted sufficiently covered the issues presented by the special charge requested, and therefore overrule the fifth assignment, and likewise the sixth and seventh, which complain bf the refusal of special charges; the matters therein, in so far as applicable to this case, we believe to be sufficiently covered in the main charge of the court.

We overrule the eighth assignment because we believe the special charge No. 7 requested by the defendants, the refusal of which error is assigned, to be on the weight of the evidence. Moreover, we think the law as involved therein is sufficiently given in the seventh paragraph of the court’s main charge.

The ninth assignment complains of the submission to the jury of the question of mental anguish and physical pain and authorizes a recovery therein, inasmuch as claimed by appellants in said assignment, the undisputed facts fail to show that he will suffer in the future either physical pain or mental anguish, or that he had before the trial suffered any mental anguish. The evidence is ample to show that the plaintiff was permanently injured in his abdomen, and in his clavicle, or collar bone, and that there was a marked and permanent deformity of his clavicle. Dr. Kingsbury testified:

“He has a broken collar bone, and he has quite a deformity there. The bone overlaps to the extent of about one inch and a half. In other words, the collar bone is shortened that much, and he has a beginning rupture of the left side. * * * He will be unable to do any lifting or sustained work of any character because lie -will tire more easily. The anatomical relations are disturbed, and consequently he will he like a man walking on a short leg, with one leg shorter than the other. He will tire more easily doing heavy work of any kind. * * * The broken ends of the bones come in contact with the soft deep tissues of the neck, and consequently he cannot raise his shoulder like a normal man could.”

Dr. Kibbie testified:

“As far as the clavicle is concerned, he has recovered in a measure, depending on the usefulness of the shoulder; but he has not completely recovered, because he has a degree of disability.”

Plaintiff testified:

“I was certainly suffering pain when I was taken out of the ambulance. I was hurting all over. My collar bone was broken and my back hurting at that time. I was almost dead. I did not know much about it for a day or two. I remained conscious after they took me out of the ditch until they went to put me in the ambulance, and then I turned so sick I did not know hardly what I was doing at that time. My side was hurt, and my ribs were fractured pretty bad, and I suffered from that and suffered with my lungs, and spit up blood for a while. I suffered with my side and my collar bone. It was my abdomen that hurt me. * * * I was not well when I left the hospital at Sherman. I was then suffering in the side and shoulders, or in the abdomen down here; that was hurting me when I came back to Ft. Worth. * * * I passed blood from my bowels for about a couple of weeks and spit up lots of blood — lumps of blood. I have not been able to do any hard physical labor. I have tried to.”

We think the evidence above quoted sufficiently shows physical pain and mental suffering up to the time of the trial, and that the plaintiff will probably suffer mental anguish and physical pain in the future. Mental suffering will be implied from illness, or injuries, accompanied by physical pain. Railway v. Johnson, 43 Tex. Civ. App. 147, 95 S. W. 595; Railway v. Currie, 64 Tex. 85; Railway v. Simpson, 81 S. W. 353. Mental suffering may arise from a sense of discomfort or inconvenience. Railway v. Harder, 36 Tex. Civ. App. 151, 81 S. W. 356. Further, the testimony of the physicians justifies the conclusion that not only will the plaintiff in the future be incapacitated to do certain kinds of labor incident to his former employment, but that he will experience inconvenience, discomfort, and pain in the attempted use of his arm and shoulder. Moreover, it will be noted that there is no assignment raising the question of the excessiveness of the verdict, and, in the view of some of the court, this would be necessary in order for appellants to take advantage of the question raised by the assignment under discussion. But we think the question is sufficiently answered by what we have said above, and we do not find it necessary to base our action in overruling the assignment upon the last expressed view, concerning which there is some disagreement among us.

On cross-examination plaintiff testified that he had left North Carolina looking for or hunting work, and that he did not leave there because he had been indicted or jumped a bond. Whereupon defendants introduced the witness Smissen, a private detective, and asked him the following:

“Now, I will ask you, Mr. Smissen, what statement, if any, Mr. McKinney, the plaintiff in this case, made to you with reference to liow and his reasons for leaving North Carolina?”

To which question plaintiff’s objection that it was immaterial was sustained by the court. It is urged that, if Smissen had been allowed to answer, he would have stated that McKinney told him that he left the state of North Carolina in the nighttime, that he had gotten away from two officers in that state, one of whom being the sheriff, and had swum a river and gone over into the state of Tennessee, and that a whisky charge was then pending against him. Defendants offered said testimony in support of their contention that the plaintiff was not injured at all, and upon the question as to whether or not he was able to labor, and upon the.question whether or not he was the kind of a man who would seek to secure work, and upon the question as to whether or not since his injury he had sought work or employment. The court instructed the jury verbally as follows:

“You are instructed that you will not consider for any purpose the testimony of the plaintiff given before the jury yesterday afternoon, to the effect that he left North Carolina looking for, or hunting work, or a job, and to the effect that he did not leave there because he had been indicted, or that he had jumped a bond, in order to escape the officers. You will not consider that for any purpose.”

To the refusal of the court to admit the testimony of Smissen to the above effect and to the verbal instruction given, appellants’ tenth and eleventh assignments are directed.

A witness in a civil action cannot be impeached by requiring him to testify to discreditable acts on his part having no material bearing on the issues involved in the case. Railway v. Burleson, 157 S. W. 1177; Moody v. Rowland, 46 Tex. Civ. App. 412, 102 S. W. 911; Loftus v. Maxey, 73 Tex. 242, 11 S. W. 272; Railway v. Johnson, 83 Tex. 628, 19 S. W. 151. Nor do we think that such character of testimony would be admissible, over objection, when offered by a witness other than the one sought to be discredited or impeached. While the appellants argue that this testimony was admissible on the grounds stated, yet we think it was too remote for such purpose, and that the court did not err, either in refusing the admission of the testimony, or in instructing the jury not to consider any of the testimony which had in fact been introduced upon these issues.

Finding no prejudicial error, the judgment of the trial court is hereby in all things affirmed.
      ^soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. REINHART.
    (No. 5576.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Master and Servant &wkey;>294^-lNJURiES to ServantsLiability of Master — Actions— Pleading — Sufficiency to Support Instructions.
    In a servant’s action for injuries alleged to have been caused by the negligence of two fellow servants whose names were unknown, but who were Mexicans, where there was no evidence of negligence of any fellow servants except the Mexicans, an instruction authorizing recovery if the injury resulted from the negligence of fellow servants, without limiting it to the negligence of the Mexicans, was not erroneous.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1157, 1161-1167; Dec. Dig. <@=»294.]
    2. Appeal and Error <&wkey;1066 — Harmless Error — Instructions.
    In such case, where the verdict for the plaintiff required a finding that the negligence was that of the Mexican fellow servants and of no others, the error, if any, in failing to follow the pleading precisely, was harmless, the result being unchanged by it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <&wkey;>1066.]
    3. Appeal and Error <&wkey;1058.-HARM:LESs Error — Exclusion of Evidence — Subsequent Admission.
    A party cannot complain of the exclusion of testimony which was thereafter admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. <©=31058.]
    4. Evidence <&wkey;317 — Admissibility—Hearsay Evidence.
    In explaining the absence of a material witness, testimony of defendant’s agent that his subagent telephoned that he had located the witness, who refused to attend, was inadmissible because hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174 — 1192; Dec. Dig. &wkey;>317.]
    5. Evidence <&wkey;31S — Admissibility—Statements Out of Court.
    Where a material witness is absent and his absence is not satisfactorily explained, it is not error to exclude his sworn statement made before the trial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. &wkey;318.]
    6. Master and Servant <§=»279 — Injuries to Servant — Liability of Master — Acts of Fellow Servants — Evidence — Sufficiency.
    Evidence of plaintiff held to show that Ms injuries proximately resulted from the negligent act of his follow servants, so as to support recovery from the master.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. &wkey;279.]
    7. Damages <&wkey;132 — Personal Injuries — Excessive Damages.
    Where, prior to his injuries, plaintiff was in good health and had worked as a carpenter, doing heavy work for many years, and the evidence showed that his fall caused severe bruises on the head and shoulders, -that he was in the hospital for 2% months, and had been unable to work for over a year and a half, that his back was weak, that his blood pressure was exceedingly high, that his heart skipped beats, and a physician testified that the injuries were done to his nervous system by the fall, and that he could never do hard work because of danger of heart failure, and that his life would be materially shortened, a verdict in his favor of $10,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by R. Reinhart against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden, and Ed W. Smith, all of San Antonio, for appellant. Engelking & James, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

Appellee sued appellant for damages on account of personal injuries, alleged to have been sustained by him while he was working for defendant as a carpenter in its roundhouse at San Antonio. It was alleged that, at the time of the accident, the crew of which plaintiff was a member was engaged in the work of placing a heavy beam ■up under the roof of the roundhouse; that the end of the beam where they were working at the time had been placed on a scaffold underneath the roof; that a screw jack had been set on the scaffold under the beam; that plaintiff was sitting astride the scaffold and was raising the beam into place by turning the jack with a lever; that while he was engaged in such work two of his fellow servants, whose names were unknown to plaintiff, but who were Mexicans, were directed to lift the beams by prying with a crowbar, but they negligently gave a sudden jerk with such crowbar so that the beams resting on the jack were suddenly elevated and their weight removed from the head of the jack on which plaintiff was pulling; that when the weight of said beams was so removed from the head of said jack plaintiff’s weight on the jack lever caused it to revolve quickly, and, as plaintiff was without support, he lost his balance and fell from the scaffold. In paragraph 6 plaintiff alleged:

“The said two Mexican servants were negligent in suddenly and with a jerk raising the said beams by means of the crowbar so that their weight and resistance was taken from the jack, and plaintiff thereby caused to Tose his balance on the scaffold and fall, as aforesaid.”

In paragraph 7 plaintiff' alleged that the defendant and some of plaintiff’s fellow servants, whose names he cannot give, were negligent in suddenly removing the support and position of firmness which the said jack had under the said beam, and thereby caused the lever with which plaintiff was operating and holding himself to be pulled out of the jack and the plaintiff to be thrown from the scaffold. '

Tíie railway company admitted the happening of the accident, but denied that it was caused by the alleged negligence of two of plaintiff’s Mexican fellow servants in prying on and jerking the beam with the bar. It alleged that plaintiff placed the jack on the scaffold under the beam and operated it to suit himself, and that his fall was caused by his failure to put the lever far enough into the hole in the jack or in so placing the same that it slipped out or in the manner in which he pulled on the lever, or in some other way unknown to defendant. It further pleaded that in acting as he did appel-lee was guilty of contributory negligence, and that he assumed the risk.

The trial resulted in a verdict and judgment for $10,000.

The second paragraph of the charge reads:

“If you find from the evidence that while plaintiff was sitting on the scaffold and was raising the beam into position with a screw jack, one or more of his fellow servants was prizing on the beam with a bar, and if you further find that, while plaintiff was so operating the jack, his said fellow servants suddenly jerked the beam with the bar and that this released the weight on the jack and caused plaintiff to lose his balance and fall, and if you further find that the jerking of the beam with the bar, if it was so jerked, was negligence, and that such negligence was the direct and proximate cause of plaintiff falling, and if you further find that plaintiff sustained in such fall any of the injuries alleged in his petition, then you should return a verdict for plaintiff.”

Appellant contends that this portion of the charge was erroneous because it fails to require that two of appellee’s fellow servants, who were Mexicans, must have been prizing on the beam and suddenly jerked the same, etc., as alleged in the petition. The contention is that the evidence shows that two of appellee’s fellow servants, Haak and Mathewson, are not Mexicans, and shows and tends to show that Mathewson is the man who was handling the bar and prizing the beam, and that neither of the Mexicans handled the bar or jerked the beam with the bar, and therefore the jury, under the charge, might have found for plaintiff upon the negligence of* Mathewson instead of that of the two Mexicans. This contention finds no support in the testimony. Plaintiff testified unequivocally that the two Mexicans were prizing with the crowbar at the time he was' injured. Every witness for defendant testified positively that no one was using the crowbar at that time. Haak and Mathewson testified that prior to this time Mathewson had tried to prize the beam over, but he could not do it, so he took the bar out and they used the jack again. Haak testified that at the time of the accident Mathewson was standing on the ground, holding the rope; that no one at that time was using the crowbar. Mathewson testified that at the time plaintiff fell, he (Mathewson) was standing on the running board of the engine, and was not using the bar while plaintiff was using the jack, nor did he think any one else was.

Appellee contends that in paragraph 7 he imputed the act of negligence to “some of plaintiff’s fellow servants, whose names he cannot give,” and that said allegation was sufficient to authorize the charge. We think there is no merit in that contention, for it appears that in paragraph 7 the plaintiff undertook to allege a different act of negligence from that alleged in paragraph 6. The one alleged in paragraph 6 was submitted, and as the two fellow servants were described as Mexicans, for the purpose of identifying them, they being the only two who were Mexicans and their names being unknown, the case is exactly in the same attitude as if the names of the two fellow servants alleged to have been negligent had been stated in the petition, but admitting that the court should have submitted the case just as it was pleaded, we are unable to see any probability that the failure to do so injured appellant. If the jury’believed plaintiff and found there was negligence in jerking the beam with a bar, they must have found that the two Mexicans were handling the bar for plaintiff so testified, while the other witnesses testified positively that no one was working with the bar at that time. We therefore overrule the first assignment of error.

The second assignment, complains of the failure to give a special charge requiring the jury to find that two Mexicans jerked the beam with a bar, or else plaintiff could not recover. This assignment is overruled on the ground that if error was committed in refusing to give it, such error is not one requiring a reversal. The reasons on which the holding is based are stated in discussing the first assignment.

M. H. Bonner, appellant’s claim agent, after testifying that on December 6, 1913, he took the statement of Torres, one of the Mexicans present at the time plaintiff fell from the scaffold, testified further that he had been requested to locate Torres as a witness in the case, but did not know of his own knowledge where he was; that he made inquiry about a day or two before the 1st day of March, and learned where he was from other persons. He was not permitted to testify that he learned Torres was at his father’s house, near San Angelo, Tex. The statement of facts shows that afterwards Bonner testified that the case went over for a special setting on March 22d, and he was told by attorneys for defendant to find out where Torres was, and arrange for his attendance. He testified further:

“According to-’the information I had at that ■time, I heard he had gone to San Angelo. As soon as I learned he had gone out there, I heard he had left there, and it was said he had gone to Laredo, and it was also reported he had joined the Mexican army. Feliciano Acosta is the man that was sent off to Laredo, Del Bio, Sonora, and west of Sonora for Torres; I had a telephone from him last night at Sonora, and expect him to return to-night at 8:50. I have done everything in my power to get Torres here at this trial, hut have been unable to do it.”

He also testified that Acosta told him over the telephone that he had found Torres 25 miles west of Sonora, but he refused to come. This statement was excluded, upon objection that it was hearsay. Appellant’s third and fourth assignments of error relate to the two rulings excluding testimony as to what Bonner had been told as to Torres’ whereabouts. It is apparent that the very testimony covered by the first assignment was afterwards given, for the witness stated that his information at the time the case was first set for trial was that Torres was at San Angelo. Appellant does not show clearly upon what theory its contention is based that proof could be made of what Acosta, defendant’s subagent, had done and that the witness whom he had located refused to attend the trial, by the hearsay statement of such sub-agent. We think the court did not err. Furthermore, this testimony could only be material on the issue whether Torres was absent by the procurement of defendant, and if the jury did not believe what Bonner said about his efforts to have Torres present, it is inconceivable that the unsworn statement of Acosta, an agent of Bonner, to the effect that he had found Torres 25 miles from Sonora and he refused to come, would have caused them to believe that Bonner was truthful concerning his efforts. Both assignments are overruled.

By the fifth assignment complaint is made because the court excluded the sworn statement made by Torres on December 6, 1913. There is no merit in the assignment.

The sixth and seventh assignments attack the sufficiency of the evidence to support the verdict. Plaintiff’s testimony, which was believed by the jury, supports a finding that the beam was negligently jerked by means of a crowbar wielded by two Mexicans, and that such act was the proximate cause of plaintiff becoming overbalanced and falling from the scaffold. The assignments are overruled.

Appellant contends that the verdict is excessive. The evidence shows that prior to appellee’s fall he was in good health; that he had worked for appellant for many years doing carpenter work, which included lifting heavy planks and timber; that his fall caused severe bruises on his head and shoulders; that he was in the hospital for 2% months; that he had not been able to work up to the time of the trial, a year and a half after his fall. He still has a tender spot in the small of his back, and is very weak in the back; besides, his blood pressure is exceedingly high and betokens a dangerous condition. His heart skips beats. This condition is attributed by him to his fall, and the testimony of Dr. Goeth warrants a finding that such condition was brought about by injuries to his nervous system sustained on account of the fall. Dr. Goeth expressed the opinion that on account of the condition of appellee’s heart he would never be able to do hard work, because of danger of heart failure, and that his life would be materially shortened. The verdict is high, but we conclude that it is not so high that the amount itself manifests passion or prejudice.

The judgment is affirmed.
      <S=3l?or other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes