text:
    LA GRONE v. CHICAGO, R. I. & G. RY. CO.

    (No. 8397.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 10, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Railroads @=384 — Injuries to Person on Track — Contributory Ne&ligence.
    Plaintiff entered defendant’s right of way in a city railroad yard and pursued a pathway between two tracks. He became aware of a following train, left the pathway, and traveled on the ends of the ties along the track on which he supposed the train would not come, as weeds and grass grew there. Having walked about 75 feet, he was struck by the end of the pilot beam of the engine, but, had he looked, would have discovered his danger in time to have avoided it. Meld, that he was negligent as a matter of law.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1294; Dec. Dig. @=384.]
    2. Appeal and Error &wkey;>930(3) — Presumptions — Submission on Special Issues — Request.
    It must be presumed on appeal, from the fact that the court submitted the ease on special issues, that a request therefor had been made by one or both parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3759; Dec. Dig. &wkey;930(3).]
    3. Trial <&wkey;349(4) — Submission on Special Issues — General Charge.
    Where a case is submitted on special issues, it is not proper to give a general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 826, 827; Dec. Dig. &wkey;349(4)J
    4. Trial i&wkey;349(4) — Submission on Special Issues — General Issue.
    In an action for injuries, though the question of contributory negligence is issuable in the light of the testimony, it is not proper to submit it as a general issue, when the case is submitted on special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 826, 827; Dec. Dig. &wkey;>349(4).]
    5. Appeal and Error &wkey;>1052(5) — Harmless Error — Evidence.
    In an action against a railroad for injuries on its track, where the jury’s answers to special issues on which the question of defendant’s liability depended were against plaintiff, any error, in permitting medical witnesses to- testify that the spine was the favorite part -of the anatomy selected by malingerers in damage claims against railways was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4175; Dee. Dig. @==>1052(5).]
    6. Trial <^=>115(2) — Argument oe'Counsel-Propriety.
    It was not error to permit defendant’s counsel to state, in effect, that it was shown by the trial coux’t’s failure to submit to the jury the question of plaintiff’s contributory negligence that the court had found the evidence to so overwhelmingly establish contributory negligence that he had withdrawn that question from the jury, and that the court had limited plaintiff’s right to recover to the issue of discovered peril; counsel being within his proper domain of argument in presenting his conclusion to the jury upon proceedings in the trial known to them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275, 276; Dec. Dig. &wkey;115(2)J
    7. Appeal and Error <&wkey;231(l) — Reserva- " tion oe Grounds of Review — Objection to Whole Argument.
    Where an objection goes to the whole argument of counsel, and a portion thereof is not subject to the objection made, the rule applicable to the admission or exclusion of testimony applies, and the assignment will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1352; Dec. Dig. @=231(1); Trial, Cent. Dig. § 314.]
    8. Appeal and Error <&wkey;1060(4) — Harmless Error — Argument.
    Where the jury’s verdict was supported by a strong preponderance of the evidence, improper argument of counsel with reference to practice in federal courts was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. @=1060(4).]
    9. Trial <&wkey;355(2) — Special Issues — Answers.
    In an action against a railroad for injuries on its track, the jury properly answered, by the single word “Tes,” special issues reading, “Was or was not” plaintiff, immediately before being struck, in a position of peril? “Did or did -not” the engineer discover his perilous position in time to have stopped? etc.; it being evident that the jury intended to state an affirmative finding to each question presented.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 847; Dec. Dig. &wkey;355(2).]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. From a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    McCart, Bowlin, Terrell & McCart, of Ft. Worth, for appellant. Lassiter, Harrison & Rowland, of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

Appellant, W. T. La Grone, filed suit December 5, 1912, against appellee for damages for personal injuries alleged to have been received by him by being struck by an engine operated on appellee’s line of railway in its yards in the eastern part of the city of Ft. Worth on July 3, 1912. From a judgment in favor of the defendant, the plaintiff appeals.

On a former appeal, the Texarkana Court of Appeals reversed a judgment in favor of plaintiff and remanded the cause, holding that the uncontradicted evidence showed as a matter of law that plaintiff was guilty of contributory negligence. This opinion will be found in 167 S. W. at page 7, and as it presents a fair statement, both of the pleadings and the evidence, adduced in this trial, we will adopt such statement, without repeating in this opinion.

The cause was submitted to the jury upon special issues, which only presented the question of discovered peril; the court holding that the evidence showed as a matter of law that the plaintiff was guilty of contributory negligence, and therefore was not entitled to recover, unless upon the theory of discovered peril. The issues presented and the answers thereto were as follows:

Question A: “If you have found from the evidence that plaintiff was struck and injured by the train mentioned in the evidence, was or was not the plaintiff, immediately before being struck by said engine, in a position of peril from said engine? Ans. Yes.’’
Question B: “Did or did not the engineer operating said engine and train discover the perilous position, if any, of the plaintiff in time for him to have stopped said train or to have slackened its speed, or to have given plaintiff warning of the approach of said train in time to have avoided injury to plaintiff from said train? Ans. Yes.”
Question C: “Did or did it not reasonably appear to said engineer that he could pass plaintiff with said train in safety to plaintiff, or that plaintiff would probably leave said track in time to avoid being injured by said train? Ans. Yes.”
Question D: “Did or did not said engineer sound the whistle of said train or ring the bell of said engine in time for plaintiff to have gotten out of the way of said approaching train, if he was in the way of same? Ans. Yes.”
Question E: “Did or did it not reasonably appear to said engineer that plaintiff heard and would heed such warnings, if any, before being struck by such engine, if you find that he was struck by same? Ans. Yes.”
Question E: “Was or was not plaintiff, while in view of said engineer, as said train was approaching him and before the engineer lost sight of plaintiff, walking in such position with reference to said track the engine and train could have passed him in safety? Ans. Yes.”
Question G: “Did or did not such engine strike and injure plaintiff? Ans. Yes.”
Question H: “If you have answered the next preceding question in the affirmative — that is question G — -how much, if any, was plaintiff damaged by such injury, if any, estimating such damages according to the law, as given you in paragraph 4 of the above charge? Ans. $500.00.”

The court further gave the jury an accepted definition of “negligence” and “ordinary care,” and further charged the jury:

“(2) If an engineer operating a train discovers a person in front of such train, and on or near the track upon which the train is being operated, in a position of peril with reference to such train, and such engineer discovers such perilous position of such person, and it does not reasonably appear to such engineer that he can safely pass such person with his train, or that such person was aware or would become aware of the approach of such train, and would probably leave such position of peril before being injured by such train, it then becomes the duty of such engineer to use the means in his power consistent with the safety of the train and the persons thereof to stop the train, if necessary, or to slacken the speed of such train, or to give such warning as might be in his power to avoid injuring such person with said train, if he had time in which to stop said train, or to slacken the speed of same, or to give such warning before such person was injured. And it would make no difference that such person was himself a trespasser, or was himself guilty of negligence in placing himself in such perilous position with reference to such railway track and approaching train.
“(3) If such engineer did not discover the perilous position of the person on or near the track in time to stop said train before injuring such person by the use of the means in his power, or to slacken the speed of such train before such person was struck by such train, or to give such person warning of the approach of said train in time to avoid injuring such person, or in time for such person to escape from such danger, or if it reasonably appeared to such engineer that such person would probably leave such place of danger before being injured by said train, or if it reasonably appeared to said engineer that he could pass such person with his train in safety to such person, or if such engineer gave warning by sounding the whistle of such engine or ringing the bell thereof in time for such person to leave such place of danger, and it reasonably appeared to such engineer that such person heard such warning in time to leave such track or such place of danger, before being struck by such approaching train, or that such person was in such position with reference to said track and approaching train when seen by the engineer that such train, if such person had not changed his position with relation to such track, would or could have passed him with safety, then in either of the events herein mentioned it would not be negligence upon the part of the engineer to undertake to pass such person with his engine and train.”

Appellant’s first assignment urges error in the failure of the trial court to give plaintiff’s special charge, which submitted to the jury—

“the issues as to whether or not defendant was guilty of negligence as alleged in plaintiff’s petition in failing to give signals while the train was moving within the corporate limits of the city of Ft. Worth, and in running more than six miles per hour on the occasion of plaintiff’s injuries, in violation of ordinances in evidence, and as to whether or not the plaintiff was guilty of contributory negligence in the premises.”

The court found in its qualification of appellant’s fourth bill of exceptions that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law, and stated that he—

“would so hold, even if he were not bound by the decision to that effect by the Court of Civil Appeals on the former trial of this case.”

The evidence is practically the same as apparently was adduced on the former trial and shown in the statement made by the Tex-arkana court. Without repeating said testimony, perhaps it is sufficient for us to state that we agree with the conclusion reached by the trial court, as well as that reached by the Court of Civil Appeals for the Texarkana District, that the evidence discloses contributory negligence on the part of the plaintiff as a matter of law. Therefore we hold that the trial court properly refused to submit th.e issue of plaintiff’s contributory negligence. Moreover, plaintiff’s proffered charge contained definitions already given in the main charge, and was in form a general charge, while it must be presumed, from the fact that the court submitted the case on special issues, that a request therefor had been made by one or both, parties. Where a case is submitted on special issues, it is not proper to give a general charge. Cole v. Crawford, 69 Tex. 124, 5 S. W. 646; Moore v. Pierson, 93 S. W. 1007; Express Co. v. Rudman, 145 S. W. 268. Nor would it be proper, even though the question of contributory negligence was issuable in the light of the testimony, to submit the same as a general issue, when the case was submitted on special issues. Therefore we overrule appellant’s first assignment.

The second assignment is as follows:

“The court erred in permitting the witnesses W. A. Duringer and H. B. Trigg to testify over plaintiff’s objection to the effect that malingerers in damage claims against railway companies selected the spine as a favorite part of the person to claim was injured, and that they knew of such things as ‘railroad spines,’ as shown by plaintiff’s bill of exception Nos. 1 and 2 herein.”

The bill of exceptions shows that Dr. H. B. Trigg, while testifying, was asked the following questions and made answers thereto as shown:

“Q. And with malingerers, what is the favorite part of the anatomy selected for the purpose —ordinarily?
“Mr. Bowlin: I object, don’t think it is proper, immaterial, irrelevant, and prejudicial to plaintiff.
“The Court: Go ahead and ask the question. (Plaintiff excepts.)
“A. Well, my observation and experience is, the most of them, the back — some part of the back.”

And Dr. Duringer, while testifying for ap-pellee, was asked:

“Q. Doctor, what is — is there any particular part of the anatomy that is a favorite part with people who are shamming injuries, malingerers, as you doctors call them? A. The back or spine — with my experience it is usually the spinal vertebrse — that covers it — I don’t know what it means, usually they complain of spinal injuries. That is a bugaboo. I know in all my evidence before the courts they complain, of spinal troubles. Does that cover it sufficiently? Q. Do doctors in medical books use any such expressions as ‘railway spines’? A. Yes.”

We think any error here presented becomes harmless, in view of the finding of the jury against plaintiff in answer to questions C, D, E, and F. Upon the answers to these issues the question of the liability vel non of defendant depended, and the answers of the jury being against plaintiff’s claim of liability on the part of the defendant, it became immaterial as to whether or not plaintiff was shamming or malingering us to the existence or extent of his injuries. While the jury found, in effect, that he was injured, and that it would take $500 to reasonably compensate him for such injuries, yet the jury’s findings of fact, which exculpated defendant from liability, made the question of injuries, or the extent of injuries, immaterial.

In the third specification prejudicial error is urged to the remarks of counsel for the defendant in addressing the jury as follows:

“Xou will remember when the pleadings were read that plaintiff’s petition alleged that plaintiff was injured through the negligence of defendant, and that he alleged that he was not negligent, but was using due care. Xou will also remember that I pleaded and read to you in my answer that he was grossly negligent, and that it was his own fault that he was hurt, and that the railway company and its engineer was not guilty of negligence. Now, Judge Swayne has not submitted to you the question as to whether or not the plaintiff was guilty of negligence that caused him to get hurt, for the reason that Judge Swayne knows that he was guilty of negligence, and that it was his own fault that he got hurt, and the evidence that he was guilty of negligence was so overwhelming that Judge Swayne has taken that question away from you in his charge. Now, as to the other question, as to what we call discovered peril, that is, as to whether or not the engineer saw him in time to have avoided him and actually realized the danger he was in, the law of Texas is that, if'there is the slightest evidence on an issue, that is, what we call a scintilla of evidence,* the court has got to submit the question to the jury, even though he would grant a new trial if the verdict was rendered for the plaintiff. Now the law is different in the United States court. If this case was being' tried in the federal court here, Judge Meek would charge you to render a verdict for the defendant without letting you leave the jury box.”

We do not believe that it constituted reversible error to permit the counsel for the defendant to state, in effect, that it was shown, by the failure of the trial, court to submit to them the question of plaintiff’s contributory negligence, that said court had found the evidence to so overwhelmingly establish contributory negligence that he had, withdrawn that question from the jury, and that the court had limited plaintiff’s right of recovery to the issue of discovered peril. Such was the fact, and we are of the opinion that the counsel was within his proper domain of argument in presenting his conclusion to the jury upon the proceedings in the trial which were known to the jury. G., H. & S. A. Ry. Co. v. Smith, 93 S. W. 184; Id., 100 Tex. 267, 98 S. W. 240; M., K. & T. Ry. Co. v. Nordell, 20 Tex. Civ. App. 362, 50 S. W. 601, writ of error refused 93 Tex. 735. Even if that portion of the argument of defendant’s counsel which purported to tell the jury what the current practice was, or would be, in the United States court, and what course the federal District Judge would follow under similar circumstances, should be held improper, yet since the objection goes to the whole argument, and a portion of the same is not subject to the objections made, we think the rule applicable to the admission or exclusion of testimony should apply, and that the assignment must be overruled. Smyth v. Caswell, 67 Tex. 567, 4 S. W. 848; Schulze v. Jalonick, 18 Tex. Civ. App. 296, 44 S. W. 580; Railway Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Railway Co. v. Powell, 38 Tex. Civ. App. 157, 86 S. W. 21, affirmed in 101 Tex. 662 (no opinion). To give force to the reasonableness of applying the same rule in the case of argument of counsel as is applicable in the admission of evidence, and as showing that the trial court understood the objections urged were directed principally, ii not entirely, to the reference as to what the court’s views were on the issue of contributory negligence, it will be noted that by the qualification of the court to defendant’s bill of exception, in which complaint is made of this argument, the court states that the argument objected to, as to the evidence fully establishing contributory negligence, was provoked by plaintiff’s counsel in his opening argument, after the court had explained to the attorneys for both parties that he had concluded that there was no issue of contributory negligence, and had decided that the plaintiff was guilty of contributory negligence as a matter of law; counsel for plaintiff contending in his opening argument that plaintiff was not guilty of contributory negligence, and, therefore, would not be ljmited to recovery merely on the question of discovered peril. Railway Co. v. Garcia, 62 Tex. 285; Ry. Co. v. Daugherty, 31 S. W. 705; I. & G. N. Ry. v. Goswich, 83 S. W. 423, affirmed in 98 Tex. 477, 85 S. W. 785. Furthermore, we are of the opinion that the verdict of the jury is supported by a strong preponderance, of the evidence, and therefore it does not appear that the argument made by counsel with reference to the practice or procedure in the federal court had any prejudicial influence on the jury, and therefore does not constitute reversible error. Willis & Bro. v. Lowry, 66 Tex. 540, 2 S. W. 449; Railway v. Duelin, 86 Tex. 450, 25 S. W. 406; McLane v. Paschal, 74 Tex. 20, 11 S. W. 837, and other cases cited in 1 Encyc. Dig. of Texas Reps. p. 886.

Appellant’s fourth assignment is as follows:

“The verdict of the jury in answer to questions propounded to them was not responsive and not intelligible as to questions A, B, G, D, E, and F, as such questions- could not be answered by the single word ‘Yes.’ ”

We do not think there is any merit in this assignment, and we think it is evident that, in answering these-issues, as they did, the jury intended to state an affirmitive finding to each of the questions presented, Therefore the fourth assignment is overruled, and likewise the fifth, which raises practically the same question.

All assignments are overruled, and the judgment is affirmed.

       <§c=>For other oases see same topic ana KEY-NUMBER in all Key-Numberea Digests aná Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    BURRELL ENGINEERING & CONSTRUCTION CO. v. GRISIER.
    (No. 8405.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 24, 1916.
    Rehearing Denied Oct. 28, 1916.)
    1. Damages <@==>170 — Action eoe Personal Injury — Evidence.
    In a servant’s action for injury, his testimony that he. had a wife and two babies, was inadmissible.
    [Ed. Note. — For • other cases, see Damages, Cent. Dig. §§ 496, 497'; Dec. Dig. ©=170.]
    2. Appeal and Error ©=1050(2) — Harmless ■ Error — Evidence.
    In a servant’s action for injury, where he was asked whether he was a man of family, and answered that he had a wife and two babies, to which answer defendant’s objection was sustained, and plaintiff’s counsel then remarked that he thought the testimony was not prejudicial, in the absence of any request to exclude the remark or of any showing that the testimony. and remarks were probably considered to the defendant’s prejudice, there was no ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. ©=1050(2).]
    3. Evidence ©=3155(1) — Admissibility — Hearsay. . '
    In a servant’s action for injury from the fall of a hoisting eleyator, alleged to have been an unsafe place for work, and to have been out of repair, where plaintiff’s witness testified that before the accident he heard defendant’s employd request permission of its superintendent in charge of the work to repair the engine which he said was in bad shape, and that the superintendent said they were going to use it through the job, and where no objection was urged to such reply, proof of the request was admissible to explain the reply.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445, 446, 457, 458; Dec. Dig. ©= 155(1).]

      4. Master a-nd Servant ©=270(13) — Evidence-Negligence.
    Where there was other evidence of defects in the engine when the request was made, the statement of the employé that the engine was in bad order,' in eonnection with his request for permission to repair it, was admissible to show that notice of such. defect was then brought to the knowledge of defendant’s superintendent, in the absence of any request-for an instruction limiting the effect.of such- testimony to the purpose for which it was .alone admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 923; Dec. Dig. ©= 270(13).]
    5. Master and Servant ©=278(12) — Suffi- ■ ciency oe Evidence — Negligence.
    In an action for injury to the foreman of a construction company from the fall of a hoisting elevator, alleging-it to be an unsafe place for work, and defendant’s negligence in not keeping it in a reasonably safe condition, evidence held to support a finding of the defendant’s negligence.
    [Ed. Note. — For other cases, see Master and Servant", Cent. .Dig. § -965; Dec. Dig. ©= 278(12);]
    6. Evidence ©=77(5) — Weight and Sufficiency — Failure to Introduce Evidence.
    . The defendant’s failure to introduce. its engineer as a witness created no presumption that his testimony on that issue, if produced, would be unfavorable to the defendant; especially where there was'no showing that his testimony was available at all, or that it was available to the defendant, and not to the plaintiff.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 97; Dee. Dig. <^=77(5).]
    7. Damages ©=132(4) — Excessive Damages— Personal ' Injury.
    - A "verdiet of $3,000, awarded the ground foreman of a construction company, aged 30, earning,$4.40 per day, and not educated to do any kind of office work, for an injury rendering him unconscious for a day and a half, confining him to the hospital for a few days, resulting in bruises, pains in his head, and the aggravation of a hernia, from' which he had previously'suffered, so that he was unable to do any heavy lifting, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 375; Dec. Dig. &wkey;132(4).]
    Error from District Court, Wichita County ; J. W. Aldn, Judge.
    Action by Fred Grisier against the Burrell Engineering & Construction Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Huff, Martin & Bullington, of Wichita Falls, for plaintiff in error. W. F. Weeks and Harry C. Weeks, both of Wichita Falls, for defendant in error.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

The Burrell Engineering & Construction Company, as contractors, erected a building in the city of Wichita Falls. An elevator was constructed at the side of the building for the purpose of hoisting material used in- the building. The car upon which the material was elevated worked between four posts, and was raised and lowered by means of a cable, the movement of which was controlled by an engine. The cable wound around a drum, and the engineer by means of a lever operated by his foot, could cause the cable to wind or unwind around the drum, and thus raise or lower the elevator car or cage. Fred Grisier was employed by the company as ground foreman in charge of other .employes who gathered and mixed material for making concrete used in the construction of the building. When the concreté was ready for such use, it‘ yas placed upon the elevator and hoisted to the men who were spreading it. Grisier, for some purpose incident to the duties of his employment, rode up on the elevator upon one of the trips carrying concrete, and after the concrete was unloaded he started down upon the elevator, when the same Slipped and fell with him, a distance of some 30 or 40 feet, resulting in his injuries. He instituted this suit against the company for damages for such injuries, and from a judgment in his favor, for $3,000, the defendant has prosecuted this writ of error.

In answer to special issues the jury found that the defendant did not' exercise ordinary care to furnish plaintiff a reasonably safe place to work and reasonably safe means to get to and from the different places where his duties called him; that defendant did' not use ordinary care to keep the elevator and hoisting engine in a reasonably safe state of repair; and that defendant’s negligence so found was the proximate cause óf plaintiff’s injuries. The jury also found that at the time of his injuries plaintiff had no actual knowledge that the hoisting engine was out of repair or the danger incident to riding thereon at the time, and that a person of ordinary-prudence engaged as the plaintiff was would not have known of such dangers. The negligence of the defendant so found by the jury was alleged in plaintiff’s petition hs a basis for the recovery. ’

While plaintiff was on the witness stand he was asked by his counsel whether or not he was a man of family, to which be answered that he had a wife and two babies. After the question had been asked and answered, counsel for defendant objected, on the ground that it was irrelevant and immaterial. The objection was sustained by the court, after which ruling counsel for the plaintiff, in the presence of the jury, made the following remarks to the court:

“I think the jury has a right to know whether or not a man is married. It is not prejudicial — that could not injure anybody. I never heard of a case being reversed on an error like that, because a man testified that he ^vas a married man in any kind of a lawsuit.”

A bill of exception was reserved by defendant’s counsel to the remarks of plaintiff’s counsel, as well as to the' testimony given by the plaintiff, but it does not appear that any request was made of the court to exclude the remarks. It is well settled by the authorities that such testimony in a suit of this character is inadmissible and so prejudicial in some instances as to constitute reversible error, notwithstanding its exclusion by the court. M., K. & T. Ry. Co. v. Thomas, 132 S. W. 974; M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508. It is also well settled that not every error committed in the trial of a cáse will cause a reversal, and that if it reasonably appears from the record that an error probably .did not operate to the prejudice of the complaining party, an assignment of error addressed thereto will be overruled. As the trial judge in the present instance Instructed the jury not to consider the testimony complained of, then, in the absence of some showing in the record that such testimony and remarks of counsel were probably considered to the prejudice of the defendant, it must be presumed that the instructions'of the court were obeyed. Furthermore, defendant’s counsel did not request the court to exclude the remarks of plaintiff’s counsel, which doubtless would have been done upon request for another instruction in writing in the submission of the ease to- the jury not to consider such testimony and remarks. After a careful consideration of the evidence relating to defendant’s alleged liability and the injuries sustained by the plaintiff, and the amount of damages allowed by the jury,, we are unable to say that the evidence introduced and the remarks of counsel referred to would be a sufficient ground for reversal of the judgment, and, accordingly, the assignment of error now under discussion is. overruled. Smyth v. Caswell, 67 Tex. 567, 4 S. W. 848; Wells Fargo v. Benjamin, 165 S. W. 120; Id., 179 S. W. 513.

W. D. Pierson, a witness for the plaintiff, .testified that about a week before the accident he heard one of the employes request permission of Leo Jones, defendant’s superintendent in charge of the work, to repair the engine which he told Jones at the time was in bad shape, and to which request Jones replied:

“No, we are going to make it go until we get through this job before we do anything with it if we can.”

The defendant objected to that testimony in so far as it related to the statement of the employé making the request of Jones, upon the following grounds:

“In the first place it is hearsay, in the second place it is coming from an absolutely unknown source, the witness not undertaking to tell how it was, who it was, or what the man was doing, even with any degree of certainty who made the remark, and we have no opportunity whatever of contradicting any such testimony as that, any cross-examination — the witness who made the remark — we are left in the dark as to who he was and whether it was true or untrue.”

In the one and only proposition submitted under an assignment of error to the ruling of the court in admitting the testimony, the only ground of objection urged is that it was hearsay. The reply by Jones to the request could not be understood without proof of the request, and as no objection was urged to such reply, proof of the request was admissible to explain its meaning. Furthermore, as there was other evidence tending to show defects in the engine at the time the request was made, the statement of the unknown employé that the engine was in bad order, made in connection with his request for permission to repair it, was admissible to show that notice of such defect was then brought to the knowledge of Jones, the superintendent. In the absence of a request for an instruction to the jury limiting the effect of such testimony to the purpose alone for which it was admissible, appellant cannot complain that the jury may have considered it as proof that the engine was in an unsafe condition.

By other assignments of error it is insisted that the evidence is wholly insufficient to show what caused the elevator to fall; insufficient to support a finding of negligence alleged in the petition as a basis for the recovery; that the only evidence from which such negligence could possibly be inferred was that it showed that the accident happened, which would be insufficient; that if any negligence was proven, there was no evidence to show any causal connection between it and the accident in controversy.

J. E. Wallace testified that he was employed upon the building when plaintiff was hurt; that he was not working on the night of plaintiff’s injury, but went to work at 7 o’clock the following morning, at which time the blacksmith and the engineer were working upon the hoisting engine, but witness did not know what kind of repairs were being done. F. A. Anderson, who had also been employed upon the building, testified:

That he quit work on Thursday or Friday before plaintiff’s injury on the following Monday or Tuesday. That the last time he noticed the brake which was used in operating the elevator it was badly out of repair. That “the lining of the brake is made out of oak wood in small blocks, put on a band with two rivets, and they are supposed to be countersunk so that' the rivets won’t work on the drum. By countersunk I mean that the head of the rivet is not to come out as far as the surface of the block; that is the way they are supposed to be. These wore worn off and some, maybe all of them, I didn’t look at each block; I noticed a few that they were worn so that the rivet heads were working on the drum, that would make it slip and get hot. When the drum slipped in the blocks, that would affect the stopping of the elevator; it would make the brake weaker; if the brake slipped the elevator was liable not to stop. Half of one of the blocks was gone entirely. That is all I noticed that was the matter with it. The brake band was loose; it was plenty loose.”

Fred Williams, another employé, also testified that on the morning following the night of the accident he, too, saw the night engineer and the blacksmith doing some repair work on the elevator. F. E. Seally testified that on the morning following the accident he assisted in doing repair work on the elevator. He further testified as follows:

“I was blacksmith helper and they called the blacksmith to work on the brake. I say the brake was out of order. I saw it. I didn’t take particular notice of the brake — just what was the matter, but I knew it was out of order because I carried the tools for the blacksmith to work with. There was something else ábout that engine except the brake. The other parts, so far as I knew, were in good order. I saw the brake when I went out there. The brake .band was loose, and the blocks in there was worn until the rivets ran against the band to hold the brake, you know, and the spindle and axle, I would call it, was worn, too. It would slip; it would not hold just exactly as they wanted it to. I saw it slip once or twice. The day man, he would step on the brake to stop the elevator. A man had to put his feet on the brake to make it work at all, to stop it. You had to put your foot on the brake to stop the brake, but sometimes he would put all his weight on the brake and it would not stop. * * * A little fellow that was the foreman and the blacksmith and another fellow, a Swede, was working on it; they were working on the brake band. They were tightening it up, because it was loose. I didn’t notice just where it was, but I knew they were working on the brake band. I did not see what they were doing; I didn’t notice particularly. I knew they were working on it, and I knew there was something the matter with it. I saw it was loose on account of the rivets coming through the block, and one of the blocks was gone.”

The foregoing testimony was sufficient to make a prima facie showing that there was some defect in the brake which caused it to slip on the occasion in controversy, in the absence of any proof offered by defendant to controvert it, notwithstanding the fact that the failure of defendant to introduce the engineer as a witness would create no presumption that his testimony upon that issue, if produced, would-be unfavorable to the defendant, especially as there was no showing that the engineer’s testimony was available at all, and, if so, that it was available to the defendant, and not to the plaintiff. Reynolds v. I. & G. N. Ry., 38 Tex. Civ. App. 273, 85 S. W. 323; F. W. B. Ry. v. Jones, 106 Tex. 345, 166 S. W. 1130. The fact that the elevator had been used continuously for some time before the accident carrying heavy loads and without slipping did not, as contended by plaintiff in error, destroy the force of the evidence recited above tending to show that the brake was defective, and that defendant, in the exercise of ordinary care, should have discovered and Remedied such defects prior to the accident.

Another contention is made by the plaintiff in error that the judgment is excessive. It seems that prior to the accident the plaintiff had suffered from hernia, which was aggravated by the injury. While it was shown that plaintiff was confined to the hospital only a few days, after which time he began to do light work, yet according to the testimony introduced in his behalf, he fell some 30 or 40 feet, was thereby rendered unconscious for a period of a day and a half; for one month after his injury he had suffered pains in his head; the hernia from which he had suffered before has been permanently exaggerated; the injury to his ankle is of a permanent nature; wooden slivers were pulled out of his chin and jaw; and he was otherwise bruised; and, according to his testimony, he has been unable to do heavy lifting as he could do prior to his injury. He was 30 years of age at the time he was injured, earning a salary of $4.40 per day, and was never educated to do any kind of office work. W.e are of the opinion that the evidence was sufficient to sustain the amount of the recovery, that the assignment now under discussion should be overruled, and the judgment affirmed.

The foregoing is filed in lieu of our former conclusions in affirming the judgment, in order to correct certain errors in those conclusions pointed out in plaintiff in error’s motion for rehearing, but which errors do' not require a change in the conclusion that the judgment should be affirmed. The original opinion, therefore, is withdrawn, and the motion for rehearing is overruled.

       ©=»For other cases see samé topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MILLER et al. v. POULTER.
    (No. 8439.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.
    On Motion for Rehearing, Nov. 4, 1916.)
    1. Evidence <§=3419(2) — Parol Evidence — Consideration of Deed.
    As between the parties to a deed, parol evidence is admissible to vary or controvert recitals as to the nature or amount of the consideration.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1912; Dec. Dig. <§x=>419(2).]
    2. Trespass to Try Title <@=>16 — Defenses— Payments of Purchase Money.
    A vendor’s action of trespass to try a title for default of payment of purchase money may be defeated by tender of the unpaid purchase money, or by showing that no part of the purchase money remains unpaid.
    [Ed. .Note. — For other cases, see Trespass to Try Title, Cent. Dig, §§ 20, 23; Dec. Dig. ©=> 16.]
    3. Bills and Notes ©=>537(6) — Purchaser with Notice — Question for Jury.
    Where one who had bought a note and vendor’s lien from one who had brought suit on the note, in which suit defendant had answered, setting up defenses, thereafter intervened in such suit as plaintiff, the question of his notice of defenses to the note was for the jury, it being error to peremptorily instruct for him, even if he were not chargeable with such notice under the lis pendens statute (article 6837, Vernon’s Sayles’ Ann. Civ. St. 1914).
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1879; Dec. Dig. ©=>537(6).]
    4. Trespass to Try Title ©=>41(1) — Evidence-Weight.
    In action of trespass to try title to land on the ground of nonpayment of balance of purchase money, secured by vendor’s lien and evidenced by a note, where there was no evidence save a recitation in the deed of the land to contradict defendant’s pleading and testimony that the note was not part of the consideration for the land, but that the recitation was inserted in the deed, unknown to defendants, upon an exchange of lands with plaintiff’s assignor, and it did not appear that the deed was introduced especially for the purpose of this evidence, the probative force of the recitation, although sufficient to make prima facie proof, was so weak that it should not be considered as any evidence in contradiction of the otherwise undisputed testimony that the note was Dot given as part of the purchase price, and verdict should have been directed for defendants.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. ©=>41(1).]
    5. Evidence ©=>75 — Presumptions—Failure to Produce Evidence.
    Where a plaintiff did not seek to contradict defendant’s testimony denying the whole basis of his cause of action, the presumption arose that he had no testimony to controvert it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 95; Dec. Dig. ©=>75.]
    Buck, J., dissenting.
    Appeal from District Court, Tarrant County; B. M. Terrell, Judge.
    Action by W. J. Mays against Mrs. V. F. Miller and others, in which W. E. Poulter intervened. From judgment for intervener and plaintiff, defendants appeal.
    Reversed and rendered.
    Jas. C. Scott, of Ft. Worth, for appellants. John L. Poulter, of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

On November 4, 1914, W. J. Mays filed suit against Mrs. V. F. Miller and her husband, C. O. Miller, alleging that theretofore, on March 20, 1914, the defendants had executed to plaintiff their promissory note of even date, and due October 1, 1914, for the sum of $908, with interest at 10 per cent., and providing for the usual attorney’s fees. He further alleged that said note was secured by a vendor’s lien upon certain described real property situated in Tarrant county. On October 8, 1915, by an amended petition, he presented a cause of action in trespass to try titlé to the same land, and alleged, in addition tó his action against the Millers, that Mrs. M. P. Ferguson was setting up somfe kind of a claim against said property, which claim was inferior to the plaintiff’s, and prayed that she be made a party to the suit, and that his title be quieted. He further alleged that since, the filing of the original petition, the defendant Mrs. Miller had filed an original answer pleading coverture, and, further, he pleaded that defendant 0. O. Miller was insolvent and had secretly left tne country and the jurisdiction of the court. In a second count in his petition, he pleaded the execution by the Millers of the note herein-above described, and that said note was executed in part payment for the property described in his petition, and that by reason of the failure of the defendants to pay said note and the plea of coverture of the defendant, Mrs. Y. F. Miller, plaintiff had elected to declare said land forfeited and the sale thereof rescinded, and sued for the title and possession of said land. On October 8, 1915, W. E. Poulter intervened in a petition, the first count of which was in form of trespass to try title as against the plaintiff and the three defendants mentioned. In the second count he pleaded the execution by the Millers of the note described, and that on October 4, 1915, the said W. J. Mays, being then the legal owner and holder of said note. and of the superior title to said land, rescinded said sale of said land to Mrs. Miller because of nonpayment of said note, and on said date sold and conveyed said property to the intervener for a valuable consideration; that thereby intervener became the legal owner and holder of the vendor’s lien note and- of the said land and the superior title thereto. He further alleged that Mrs. Ferguson was asserting some claim- of lien on the land described in the petition, but that said claim of lien was inferior to the claim of the intervener. In the intervener’s plea there was an allegation as to Mrs. Miller’s plea of coverture and C. O. Miller’s insolvency, etc., as set out in plaintiff’s amended petition. Intervener prayed for title to and possession of the land, and, in the alternative, that he have judgment, against both Millers for his debt and costs and for a foreclosure of the Vendor’s lien against all parties, and that he have a personal judgment against each of the Millers.

In defendants’ reply to plaintiff’s a'mended petition, they excepted to so much of the plaintiff’s petition as pleaded a cause of trespass to try title, on the ground that he had elected his remedy and was estopped from changing his action to one of trespass to try title. In this answer, Mrs. Miller further pleaded coverture at'the. time- of the execution of the note, and denied that said note was based upon any valuable consideration, and asserted that said rióte was no part of the consideration of the value of the land conveyed. She alleged that defendants and plaintiff exchanged lands on or about March 20, 1914, and each assumed the former liens on the respective parcels; that plaintiff drew all necessary .papers, and defendants paid plaintiff for the land in full, and that plaintiff wrongfully and without defendants’ knowledge inserted in the deed the execution and the existence of the note for $908. Other pleas were made by the parties hereto, but perhaps it will only be necessary to state that Mrs. Ferguson contented herself with filing a disclaimer, and denied the existence in favor of plaintiff of any debt secured by the lien on the property described. In the trial she asked for a peremptory charge in her favor against plaintiff and intervener, which the court refused.

The court gave a peremptory charge, instructing a verdict in favor of the intervener for the title and possession of the lands described, against the plaintiff and all parties defendant. Upon the verdict returned by the jury, in response to said peremptory instruction, judgment was rendered for inter-vener, Poulter, for the title and possession of the land against plaintiff and parties defendant ; and in favor of the defendant Mrs. Ferguson on her disclaimer for costs; and in favor of plaintiff and intervener against the Millers for their costs. From this judgment the defendants have appealed.

As heretofore stated, defendant Mrs. V. F. Miller pleaded her coverture as a defense against any personal judgment against her, and also pleaded that' the note was not given as any part of the consideration for the land conveyed. Her coverture was also admitted by plaintiff and intervener. She testified that she 'was a married woman, wife of C. O. Miller, at the time the note was given, and that the note was not given for supplies for herself or her children, nor for the benefit of her separate estate, nor was it given for any part bf the purchase price' for the land conveyed by plaintiff to her. ■We are not able to understand upon what theory the court gave a peremptory instruction in the face of this record. Mrs. Miller’s testimony as to her coverture was uncontradicted, and was, as shown, conceded by all parties. Her testimony to the effect that the note was not given for necessaries for herself or children, or for the benefit of her separate estate, wa.s not denied, nor was her testimony to the effect that the note was not given for any part of the purchase price for the land’ denied, except so far as it was put in issue, by the introduction of the deed containing' the recitations as to , the execution of the vendor’s lien note and the reservation of the vendor’s lien to secure the same. It' is a well-established rule of evidence that the consideration for the conveyance of land; may be inquired into and, as between the parties to a deed, parol evidence is admissible to vary or controvert the recitations of a deed as to the nature or amount of the consideration. Lanier v. Foust & Douglass, 81 Tex. 186, 16 S. W. 994; McLean & Curry v. Ellis, 79 Tex. 398; Taylor v. Merrill, 64 Tex. 494; G., H. & S. A. R. Co. v. Pfeuffer, 56 Tex. 66; Glenn v. Mathews, 44 Tex. 400.

As between plaintiff and defendant, Mrs. Miller, under our law prior to 1913, her plea of coverture, supported by evidence, would constitute a complete defense to any personal liability on the note, even though it was given as a part consideration for the land. Speer’s Law of Marital Rights, § 172, p. 224; Lynch v. Elkes, 21 Tex. 229; Noel v. Clark, 25 Tex. Civ. App. 186, 60 S. W. 356. Whether a different rule should control under the 1913 amendments to our acts pertaining to the rights and liabilities of married women, it is not necessary for us to here determine, for if the note represented no part of the purchase price, no vendor’s lien was retained by the vendor, plaintiff, nor transferred by him under the deed to intervener, Poulter. At most it would be a contractual obligation on the part of Mrs. Miler, and the land could not be recovered by plaintiff or intervener in a trespass to try title suit. The right of a vendor to recover the title and possession of the land, independent of a foreclosure suit, rests on the theory that he retains the superior title until the purchase price has been paid in full. Lanier v. Foust, 81 Tex. 186, 16 S. W. 994; Hale v. Baker, 60 Tex. 217; Roosevelt v. Davis, 49 Tex. 463; Peters v. Clements, 46 Tex. 114, 123. But the vendee may defeat the action by tendering the unpaid purchase money. Baumgarten v. Smith, 37 Tex. 439; Peters v. Clements, 46 Tex. 114. Hence it follows that the vendee may defeat the action by showing that no part of the purchase price remains unpaid.

As to the right of intervener to recover, under trespass to try title, he having purchased pendente lite, and' evidently after the filing of defendants Miller’s answer, eontaiming the plea of coverture, and the plea that the note sued on was no part of the purchase price, if he would not be charged with notice of such defense pleaded, as held in Bryson & Hartgrove v. Boyce, 41 Tex. Civ. App. 415, 92 S. W. 820, by reason of the lis pen-dens statute enacted in 1905 (article 6837, Vernon’s Sayles’ Texas Civil Statutes), discussed in an opinion by this court (Burke-Simmons Co. v. Konz, 178 S. W. 587, writ denied), yet in the absence of a plea and proof of- innocent purchaser, we are of the opinion that he would occupy no better position as to this defense on the part of the Millers than the plaintiff would. At any rate, the question of notice would be one of fact for the jury. Therefore we are of the opinion that the court erred in giving a peremptory instruction, and that appellants’ seventeenth assignment, directed to this action, should be sustained.

For the reasons indicated, we all concur in the conclusion that the judgment in this' case must be reversed, but as to the further disposition of the case we are not agreed. The majority are of the opinion that the court erred, as complained in the fourteenth assignment, in not giving a peremptory instruction for defendants Miller. The deed from plaintiff to Mrs. Miller shows that the land was conveyed to her 'as her separate estate. No pleading or evidence contradicts this recitation in the deed. Nor, as before stated, is there any evidence, save the deed itself, to contradict Mrs. Miller’s-testimony to the effect that this, note was no part of the consideration for the conveyance of the land. Plaintiff testified in tne ease, but was silent upon this vital issue. While the recitation in the deed that the note was given as part of the purchase price of the land was in evidence, by reason of the introduction of the deed in its entirety, yet it does not appear that the deed was introduced especially for this purpose. This recitation was denied by Mrs. Miller, both in her pleadings and in her evidence. Hence the majority conclude that the prima facie proof of this fact by virtue of the recitations in the deed was overcome, and that the probative force of the recitation is so weak that it should not be considered as any evidence in contradiction of the otherwise undisputed testimony to the effect that the note was not given as part of the purchase price. First State Bank v. Jones, 183 S. W. 874, 877; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 44 L. R. A. 279; Radley v. Knepfly, 104 Tex. 134, 135 S. W. 111; Cobb v. Bryan, 37 Tex. Civ. App. 339, 83 S. W. 888. In First State Bank v. Jones, supra, it was held by the Supreme Court that a recital of payment in a release could not overcome abundant other evidence, showing that such recital was inserted through mutual mistake. In the cited case, the instrument containing the recital was executed by the bank, which was seeking to avoid the force and consequences of such recital, and therefore it was in the.nature of an admission against interest, yet the Supreme Court, in reversing the trial court and this court (171 S. W. 1057), held as stated. In the present case the recital supports the contention of both plaintiff and intervener that the note was in fact given as part consideration for the purchase of-the land. The majority conclude that the court should have given defendants’ requested charge, and that the judgment' must be here rendered for the Millers.

The fact that neither the-plaintiff nor the intervener in any way sought to contradict Mrs. Miller’s- testimony upon this point raises the presumption that they had no testimony to controvert it. 13 Encyc. Dig. Tex. Reports; 1248-1250; Railway Co. v. Day, 104 Tex. 237, 136 S. W. 435, 34 L. R. A. (N. S.) 111; Bailey v. Hicks, 16. Tex. 222; G., H. & S. A. Ry. Co. v. Young, 45 Tex. Civ. App. 430, 100 S. W. 993.

The writer, while recognizing the force and apparent application of the authority of First State Bank v. Jones, supra, yet feels that in that case the Supreme Court has extended the application of the rule laid down in Joske v. Irvine, supra, that it is the duty of the court to instruct a verdict though there be slight testimony to the contrary, if its probative force be so weak that it at most raises a mere surmise or suspicion of the existence of the fact sought to be established. While recognizing the soundness in law of the rule laid down in Joske v. Irvine, yet the writer is of the opinion that it should not apply in the instant case. In addition to the authorities cited by Associate Justice Dunklin in the opinion by this court in Bank v. Jones, 171 S. W. 1057, 1060, and the authorities cited in the dissenting opinion of Associate Justice Hawkins in 183 S. W. 878, there might be cited, upon the questions: (1) That recitation in the deed as to the nature and character of the consideration is sufficient to establish prima facie proof of the truth of the facts recited; and (2) that, the evidence upon an issue being conflicting, neither the trial court nor an appellate court ought to deprive a litigant of the constitutional right to have the issue of fact determined by a jury — the following authorities: (1) 8 R. C. L. p. 971, §§ 43, 44; Lanier v. Foust, 81 Tex. 186, 189, 16 S. W. 994; Gilpin v. M., K. & T. Ry. Co., 197 Mo. 319, 94 S. W. 869, 871, defining the expressions “prima facie case” and “prima facie evidence”; Railway Co. v. Johnson, 92 Tex. 591, 50 S. W. 563; Railway Co. v. Moss, 37 Tex. Civ. App. 461, 84 S. W. 281. (2) Wininger v. Railway Co., 105 Tex. 56, 143 S. W. 1150; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696; St. L. S. W. Ry. Co. v. Thompson, 108 S. W. 453, 461; Red River National Bank v. De Berry, 47 Tex. Civ. App. 96, 105 S. W. 998, 999.

But the majority being of the opinion that the judgment should be reversed and here rendered for the appellants Miller, it is so ordered. It is further ordered that the ap-pellee, Mrs. M. P. Ferguson, recover her costs in this court and in the trial court.

On Motion for Rehearing.

Appellee urges that in our original opinion we erred in two respects: (1) In holding that the exception to the general rule inhibiting the variance by parol of the terms of a written instrument applied in the instant case, for the reason, as claimed by ap-pellee, that such exception obtains only when the consideration expressed is merely formal, and not when the consideration is contractual; (2) tnat even though it might be properly held that such exception should obtain, yet, inasmuch ' as the evidence put in issue the question of what was the real consideration for the conveyance, the majority, at least, •erred in holding that a peremptory instruction should have been given for defendants, and in rendering judgment for them.

Taking up these two propositions in their order, we will discuss them briefly. It will be remembered that the defendants Miller pleaded that the consideration for the execution of the recited vendor’s lien note was not the conveyance of the land by plaintiff, but was in fact the promised legal services to be rendered by plaintiff. They alleged the refusal and failure of plaintiff to render such legal services. They further alleged that:

“The note was wrongfully and fraudulently inserted in the deed without the knowledge of the defendants for a long time afterwards, and defendants repudiated and refused to pay the note, because it was wrongfully inserted in the deed as a part of the purchase price of the land described in plaintiff’s pleadings.”

It was further alleged that intervener acquired any rights that he might have, or might claim, after notice of defendants’ defenses, which latter plea the evidence supports, and we do not understand that inter-vener seriously contends otherwise. Therefore a defense, good as against plaintiff, would be available as against intervener. Since intervener’s right to recover the land, as the holder and assignee of the superior title, was dependent upon the establishment of the contention that a part, at least, of the purchase price had not been paid, his right of recovery would fail, if it should be shown that the real consideration moving to the defendants for the execution of this note was not the conveyance of the land, and particularly so if it should be established that the real consideration had failed. The evidence is abundant to at least put in issue the question of consideration. And the defendants’ pleadings, recited above, justify the admission and consideration by court and jury of such evidence. Though there maybe said to be some conflict of authority upon the question of whether or not a written contract may ever be varied in terms by parol when the obligation sought to be affected is contractual, in the absence of fraud, accident, or mistake, yet there is no real conflict where fraud, accident, or mistake has been pleaded, and where the admitted parol evidence tends to establish such allegation. 20 Cyc. 112, § 2; 1 Greenleaf, § 284; Bishop on Contracts, § 169. It also has been held by our Supreme Court in Taylor v. Merrill, 64 Tex. 494, that it is not necessary for allegations Of fraud, accident, or mistake to be made to account for the failure to express the full consideration, when the allegation has been made that part of the consideration for the conveyance of land had failed; that, as between the parties, parol evidence is admissible to show that the vendor had falsely represented certain improvements, etc., were on the land, and that such constituted a part of the considera* tion. See, also, Paris Gro. Co. v. Burks, 99 S. W. 1137. Hence we adhere to our views expressed in our original opinion upon the first proposition presented.

As to the second proposition urged, to wit, that in any event we should have reversed and remanded the cause instead of rendering judgment for defendant, the writer is still of the opinion heretofore expressed. In addition to the authorities cited in the original opinion in support of his expressed dissent, there might he mentioned Crenshaw v. Claybrook, 11 S. W. 536; Neese v. Riley, 77 Tex. 348, 14 S. W. 65; Behrens v. Dignowitty, 4 Tex.Civ.App. 201, 23 S.W. 288. But the majority still are of the opinion previously expressed, and appellee’s motion is hereby overruled.

BUCK, J., dissents.
      ©=>For other oases see same toRic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHICAGO, R. I. & G. RY. CO. v. COMSTOCK.
    (No. 8444.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Evidence &wkey;>155(l) — Admissibility—Materiality.
    The carrier, having introduced testimony that its train customarily stopped for several minutes at the stop at which plaintiff was injured, could not complain of admission of plaintiff’s rebuttal that it customarily stopped for so short a time as to require passengers to he on the platform ready to alight before actual stop.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445, 446, 457, 458; Dec. Dig. &wkey; 155(1).]
    2. Appeal and Error <&wkey;1033(5) — Harmless Error.
    A carrier cannot complain of a charge favorable to it on the issue of the passenger’s negligence in alighting from a moving train.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. <®^> 1033(5).]
    3. Appeal and Error &wkey;>231(9) — Scope — Preservation op Exceptions.
    An objection that a charge was upon the weight of evidence was of no avail, where it was not pointed out in what respect it was on the weight of evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 6S8^692; Dec. Dig. &wkey;5 231(9); Pleading, .Cent. Dig. § 1439; Trial, Cent. Dig. §§ 194-210, 223-227, 689, 690, 694, 696.]
    4. Carriers <&wkey;347(ll) — Injuries to Passengers — Contributory Negligence —-Question por Jury.
    It cannot be said as a matter of law that it was negligence for the passenger to alight from a moving train, where his testimony was that he was caused to alight by its sudden and unanticipated jerk, while he was on the platform ready to alight at a stop customarily so short as to require passengers to be ready to alight before the stop was actually made.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1355, 1356, 1391-1393, 1402; Dec. Dig. &wkey;347(ll)J
    Appeal from District Court, Jack County; F. O. McKinsey, Judge.
    Action by J. T. Comstock against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, and Stark & Stark, of Jaeksboro, for appellant. J. D. McComb and J. PI Simpson, both of Jaeksboro, for appellee.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

J. T. Comstock instituted this suit against the Chicago, Rock Island & Gulf Railway Company for damages as the result of injuries sustained by him, caused by his fall to the ground while in the act of alighting from the train at the town of Hess, The negligence charged, substantially, was a sudden jerk of the train after the train stopped at the station, or else was running so slowly as to enable him to alight without injury in the absence of such a jerk, and by reason of such jerk plaintiff was caused to fall while in the act of alighting. From a judgment in favor of the plaintiff in the sum of $500, the railway company has appealed.

The evidence shows that there was no depot at the station of Hess, which, however, was a regular stop for a siding, and at which place a work crew was employed to whom supplies were delivered at * that station. About one-half mile distant there was a stopping place for trains called Senate, which, upon the petition of the community, had been made the regular stopping place instead of Hess. '

By the first three assignments of error complaint is made of the introduction of testimony .tending to show that defendant’s passenger trains usually made a very short stop at Hess, a stop so short that it is necessary for passengers to be out on the platform and ready to alight before the stop was actually made. Defendant’s objection's to that testimony were, in effect, that the same was irrelevant, immaterial, and incompetent to prove that the train failed to make the -proper stop on the occasion of the accident, as contended by the plaintiff. The trial judge approved the bills with explanation, in effect, that the testimony offered was in rebuttal of the testimony already introduced by the defendant that it was customary for its trains’ to stop at that station for several minutes every night in order to deliver mail and unload supplies for a work crew at that place. In view of that showing, it is clear that appellant is in no position to complain of the rulings now under discussion, even though it could be said that otherwise such rulings would be reversible error.

The first and third paragraphs of the trial judge’s charge to the'jury are as follows;

First paragraph. “If you believe from the evidence that on the occasion in question, the defendant’s train on which plaintiff was riding, was approaching the station at Hess or Senate, and that one of defendant’s employes in charge of said train called out said- station and there indicated to plaintiff that the' train was approaching same, and said train began to slow down, and that plaintiff left the coach in which he was riding and went on the steps thereof for the purpose of alighting therefrom,' and if you believe that said train stopped or was running very slowly so that plaintiff could have alighted safely therefrom and was in the act of doing so or about to' do so, and that said train was then suddenly started or jerked forward by defendant’s employé or employés in charge of or operating same, and that thereby the plaintiff was thrown 'violently therefrom upon the ground and thereby received the injuries complained of, and that the sudden starting or jerking of said train was under the circumstance negligence on the part of defendant's employé or employés in charge of or operating same, and that such negligence was the proximate cause of plaintiff’s injury, you will find for the plaintiff unless you find for the defendant under other instructions given you by the court.”
Third paragraph. “On the other hand, if you find that the plaintiff on the occasion in question attempted to or did alight from the train on which he was riding before same reached the station and while the train was in motion, and that in alighting or attempting to alight from said train, under the circumstances, if he did so, the plaintiff was guilty 'of negligence, and that such negligence, if any, was the proximate cause of plaintiff’s injuries complained of, or proximately ' contributed thereto, then and in' such event the plaintiff cannot recover in this action, and if you so believe and find from the evidence, your verdict will be for the defendant.”

Error has been assigned to both of those instructions, the complaint of the first paragraph being:

“Because the same is upon the weight of the evidence and the same does not correctly state the law of the case, and the court should have charged the jury that if' plaintiff did alight from said train while .the same was in motion and did not wait until said train stopped to alight therefrom,' said plaintiff was guilty of contributory ' negligfence' and could riot-recover herein.”

The assignment to the third paragraph of the charge was:

• “Because the same is not the law in this case, and' 'if- said plaintiff attempted to or did alight from said train before the same reached the station and while said train was in motion, said act was negligence on the part of plaintiff, and he could not recover herein, and the said charge should so instruct the jury.”

As a predicate for these assignments, the contention is made that the testimony of the plaintiff himself shows conclusively that he stepped off the train before it came to a stop, and it is insisted that by reason of that act he was, as a question of law, guilty of contributory negligence precluding any right of recovery, citing in support of that contention such decisions as T. & N. O. Ry. Co. v. Wallace, 189 S. W. 1052, and other decisions therein cited; Oxsher v. H. E. & W. T. Ry., 29 Tex. Civ. App. 420, 67 S. W. 550; Tex. Mid. Ry. v. Ellison, 89, Tex. Civ. App. 172, 87 S. W. 213. The following excerpts ' from .plaintiff’s testimony are cited by appellant:

“When we got up to those.cars it was running very slowly, and so I thought it was good énough to get off on, and just as I stepped off, going down the steps, and just as I got to the last step, why it gave a long jerk,and threw me off. The train started up with that sudden jerk. * * * The train. was moving along slowly when I stepped down the first step, and it seemed like .it was,.slowly moving when I, stepped down the second. I went out and started down the steps while the train was still moving because it seemed slow enough for me to get off. Q. Didn’t you know you didn’t have to get off unless it stopped for you? Didn’t you know they had to stop for you? A. Well, I am a little kind of hard of hearing, and I can’t understand the way you talk. I had ridden on cars before. I knew about whether or not they had to stop for me to lot me off. Certainly I knew it was dangerous to get off a car when it was moving.”

While that testimony tends to show that plaintiff stepped from the car before it came to a stop, yet other portions of his testimony, appearing in the statement of facts, were sufficient to support a finding that he was thi’own from the lower step of the car by a sudden jerk of the train before lie attempted to alight and while waiting for the train to stop, or to slow down to such a point as he thought it safe for him to alight. Even though it could be said that the authorities cited would warrant a peremptory instruction in favor of the defendant on the issue of contributory negligence of the plaintiff, if he alighted from the train while it was moving ever so slowly, yet in view of the testimony referred to the court could not have so charged the. jury. Furthermore, the third paragraph of the charge was favorable to the defendant, and it is not pointed out in what respect' the first paragraph is upon the weight of the evidence. Yellow Pine Oil Co. v. Noble, 100 Tex. 358, 99 S. W. 1024; C., R. I. & G. Ry. Co. v. Johnson, 101 Tex. 422, loc. cit. 431, 108 S. W. 964.

Complaint is made of the refusal of a special instruction requested by the defend-' ant, in effect, that if the jury should believe that plaintiff attempted to alight from the train while it was in motion and before it came to a stop, and that while so doing he was thrown" to the ground and injured, then the jury should find that plaintiff was guilty of contributory negligence precluding a recovery. According to the testimony of the plaintiff, the sudden jerk of the train was the sole cause of his fall, and his version of the accident would warrant a finding that he had no reason to anticipate such a jerk at that time, even though it could be further said that he alighted from the train before it came to a stop. Especially in view of such circumstances; we do' not believe it could be held that his act in alighting from the train while in' motion, however slowly it was moving, was contributory negligence as a question of law; and we .do not think the authorities cited by appellant in cases with-facts so materially different from the facts, of the present case, are in conflict with this conclusion.

■. By - another assignment of error it is insisted that there was' no evidence to show any negligence on tlje part.of the defendant causing'plaiiitiff’s injury. The testimony al~ ready recited, to, the effect that after the train'slowed down and as it^was almost to-the point of stopping, it started up again with a^sudden-jerk, in,-connection,with .other facts and circumstances in evidence, we think was sufficient evidence of negligence which was the proximate cause of plaintiff’s injury and sufficient to support the finding of the jury upon those issues, notwithstanding the testimony of other witnesses introduced by the defendant, to the effect that the train came to a full stop on the night of the accident, and that there was no such' sudden jerk as testified to by the plaintiff.

What we have said already is a sufficient answer to the further contention that the evidence shows conclusively that plaintiff alighted from the train before it came to a stop, and therefore was guilty of contributory negligence as a question of law, and that the verdict of the jury to the contrary is unsupported by the evidence.

For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBEH in all Key-Numbered Digests and Indexes