author: HIGGINS, J.

text:
    HOEFS et al. v. SHORT.
    (No. 501.)
    (Court of Civil Appeals of Texas. El Paso.
    June 17, 1915.)
    1. Waters aiíd Water Ooubses <&wkey;121 — Riparian Rights — Surface Waters — Statutory Provisions.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4991-5011s, providing that the unappropriated waters of any stream and storm or rain waters of every stream, ravine, depression, or watershed shall be the property of the public, and may' be acquired by appropriation, owners of land through which rain waters, having their source in other lands, flow, have no riparian rights in the waters, but the waters become the property of the first appropriator.
    [Ed. Note — For other cases, see Waters and Water Courses, Cent. Dig. § 136; Dec. Dig. &wkey;121.]
    2.’ Waters and Water Courses <&wkey;126 — Surface Waters — Appropriation—Statutory Provisions.
    Act April 19,1913 (Acts 33rd Leg. c. 171, § 12 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4996]), provides that every person who shall have constructed any dam or other work shall file a verified statement showing the number of acres of land that will be irrigated, the point at which the headgaté is situated, the carrying capacity of the ditch, and with map showing the. route of the ditch. An individual and a company filed a verified statement that they had partially constructed dams and other works for irrigation, declaring an appropriation of waters as of the date of the beginning of the work at a prior specified time, describing the location of the lieadgates and the capacity of the ditches, and averring that the water was to be taken from a dam at the respective headgates, and that the dam would divert flood waters. The map accompanying the statement showed two head-gates and the accompanying verified statement showed that the two dams were parts of one system, and that the waters diverted at the second dam were waters released at the first through a flume. Held to show a single .appropriation of the waters to the exclusion of an owner of land below.
    LEd. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 189, 141, 142; Dec. Dig. <&wkey;>126.]
    Appeal from District Court, Reeves County ; S. J. Isaacks, Judge.
    Action by J. C. Short against Otto Hoefs and others. From an order granting a temporary writ of injunction against defendants, they appeal.
    Injunction dissolved and cause reversed and remanded.
    Clay Cooke, of Pecos, for appellants. Ross & Hubbard, of Pecos, for appellee.
   HIGGINS, J.

Short filed this suit against Otto, Rudolph, Edwin, and Arthur Hoefs. Those portions of his petition material to a consideration of this appeal are as follows:

That plaintiff was the owner of section 58, in block 13, H. & G. N. Ry. Co. survey in Reeves county, Tex., which was crossed by an intermittently flowing stream known as Barella creek, and that his said land was riparian to said stream, within the watershed thereof, abutted upon and was crossed by said stream, and by reason thereof, his land was entitled to the use of the waters of the stream for irrigation purposes. That Barella creek is a creek which flows intermittently, fed by rainfall collected within its watershed, which watershed extends over a large area in the foothills and mountains south of plaintiff’s land. That when the creek flows it flows in a well-defined channel, with well-defined banks, from a point south' of his land, said well-defined bed, channel, and banks extending to a point' one mile distant below and to the north of his land. That for many years there has been maintained a dam across the creek known as the “U” dam, located about two miles south of his lands, near the south line of section 24, block C-16 public school land and upon either section 24 or section 13 in block 1, H. & T. C. Ry. Co. survey, and the waters collected and diverted by said dam have for many years been so used as to permit the residue thereof after their use for stock watering and irrigation to flow back into the channel of the creek south of plaintiff’s lands, and all of the waters of the creek have been accustomed for many years to flow to and across his lands, except such part thereof as was diverted and used by reason of the U dam. That on February 7, 1914, he filed his application with the board of water engineers of the state of Texas to appropriate from public waters of the state of Texas a certain amount of water to be diverted from said creek, an ordinarily dry stream, by means of a diversion dam located on his land for the purpose of irrigation, the water appropriated to be diverted by means of such diversion dam at such times as flood or storm waters flowed down the creek, and on April-9, 1914, said board granted him a permit to appropriate and use an amount of the public waters of the state from the flood waters of Barella creek, not to exceed 1,920 acre feet per annum, which permit provided that the privileges granted thereby were subsidiary to the rights of any appropriators of water from the same source who began or completed any storage or irrigation plant and diverted any water prior to July 1, 1913, for any of the purposes prescribed by law and who filed a record of such appropriation with said board prior to July 1, 1914. That he began the work of construction and completed the dam within the time limited by the permit and same was constructed across the creek at or near the southerly boundary line of his section where the creek enters his land. That the appropriation was made and the dam constructed for the purpose of diverting the waters of the creek to his lands for the purpose of irrigation.

Allegations then followed showing the irrigation purposes for which he proposes to use the water upon his land and showing a necessity therefor, and that he had no other means ofl irrigating same. It was further alleged: That his land was located in the arid or semiarid portion of the state in which irrigation was beneficial and necessary for agricultural purposes and without which crops could not be successfully grown or cultivated. That Otto Hoefs was the owner of a section of land lying between plaintiff’s land and the U dam, and he and his codefendants threaten to construct, and are constructing, a dam on the intervening land of Otto Hoefs and have commenced the construction of a canal leading therefrom to the west of plaintiff’s land and along its western boundary to other lands owned by the defendants which are not contiguous to the creek nor crossed by same and not riparian thereto. That the dam of defendants, if allowed to be completed or allowed to remain as constructed, will divert the flood waters of the creek into said canal, leading the water away from the creek, and from plaintiff’s lands onto and across the lands of defendants, to wit, sections 325 and 330, which are neither contiguous nor riparian to the creek. That the defendants were without legal right to interfere to divert or impede the waters of the creek in their flow to plaintiff’s lands, and had made no application to said board of engineers for a permit so to do, and if applications should thereafter be made, their right to the use of said waters thereunder which may be acquired, would be subordinate to the right acquired by the plaintiff under his permit and appropriation aforesaid. That if defendants are not enjoined from the construction and completion of said dam and canal and from maintaining the same, plaintiff’s permit and water appropriation and lands would be rendered valueless, to his great damage; wherefore, he prayed for an injunction enjoining the defendants from withholding any of the waters of Barella creek by means of said dam until he had received the waters thereof to which he was entitled under his appropriation and permit, and 'that they be enjoined to remove such dam as they have now under construction, or have constructed, or are constructing so as to allow plaintiff’s water to flow down the creek to plaintiff’s dam.

The defendants answered, in substance alleging: That section 58 was not crossed by an intermittently flowing stream, and that the stream alleged by plaintiff to cross same is nothing more or less than a spread out or a depression where waters from rains collect, and said stream has no source, no well-defined banks, no bed, and no channel. That about the year 1899, the Wilson-Popham Cattle Company constructed a dam across the said Barella draw about 50 feet south of section 24, block C-16, known as the “U” dam, and ever since that date all of the rain waters have been held up and diverted at said dam and long prior to the time plaintiff acquired his land. That said waters were actually appropriated by Otto Hoefs and the said company, and applied to irrigation of their lands long prior to the time plaintiff acquired his land from the state of Texas, and at the time of the acquisition by plaintiff otf his land from the state all of the rain waters occasionally flowing in said draw had been appropriated and diverted by said company and defendants and used for beneficial purposes and there was not at said time any unappropriated waters in the draw subject to appropriation by plaintiff. That said dam is above the lands of plaintiff and defendants. That they are the owners of and in possession of sections 323, 320, 326, 329, 330, 328, and 37, in block 13, H. & G-. N. R.y. survey. That section 323, upon which is located the diversion dam complained of, was patented to said railway company by the state January 5, 1874, and long prior to the time at which the Legislature attempted to reserve any rain waters or other waters flowing across said section, and that sections 58 and 329 were patented by the state long prior to the passage oif said act of the Legislature under which the plaintiff claims. That they acquired all their land, and their predecessors in title acquired same, long prior to the passage of the act of the Legislature attempting to reserve rain waters flowing across said lands, and the title and right of possession to said lands and the right to use and divert the rain waters flowing across the same, and said lands belonged to and were the property of defendants and those under whom they claim long prior to the passage of the act under which the plaintiff is attempting to claim the waters, and same were actually diverted by the defendants long prior to the passage of the act and to the taking of any steps by plaintiff in an endeavor to acquire the waters. That said rain waters, ever since the year 1899, have been held up and diverted and used for beneficial purposes by said company and defendants and their predecessors in title for more than 10 years pri- or to the institution of this suit, and have been used by them adversely and continuously for said length of time to any right of the plaintiff or his predecessors in title. Title to said rain waters was then claimed by the defendants under the three and five year statute of limitation.

It was then further alleged: That in 1889 said company constructed the aforesaid U dam which held up, and has continually held up and diverted, the rain waters, since the same have been carried from the dam and flowing upon the sections of land above described belonging to the defendants, for the purpose of irrigating same, and they have used such waters for the irrigation of their lands by carrying same from the dam across sections 24 and 321. That in 1907, the defendants acquired from the company the right and privilege of using a portion of the waters diverted at the U dam and have been continuously using same since that date, and they have an interest in said dam thereby and a right to use the waters obstructed and diverted thereat. That after the passage of the act of 1913 (Acts 33rd Leg. c. 171), regulating the appropriation of waters, Otto Hoefs and said company, the owners of said diversion dam, in compliance with said act, filed in the county clerk’s office a statement and map of the diversion and appropriation theretofore made, and a certified copy thereof, together with the sworn- statement, as required by law, in the office of the board of water engineers at Austin, Tex. That prior to 1914, the waters so diverted and used by defendants were carried from the dam and flowed overland, across section 321 and down and upon sections 330, 57, 329, and 328, and furnished water for the irrigation thereof. That in 1914, Neil Wilson, who owns section 321, constructed a levee along the northwest line of his section to prevent the diverted water from flowing down to defendant’s lands, and thereupon, defendants, with the consent and permission of the Wilson-Popham Cattle Company, or Al Popham, obtained the right to carry said waters from said U dam across section 24 and section 322 to a point upon section 323 where defendants had constructed the dam complained of by plaintiff. That upon section 323, by means of said dam, defendants diverted the waters heretofore diverted at the U dam and carried same across the land of the company, with the consent of the company, and irrigated their land in sections 330 and 57 and upon 323. That they have valuable crops in cultivation upon sections 57, 323, and 330, and cannot cultivate same without the use of said waters for the irrigation thereof. That there is no flowing stream with well-defined banks and bed known as the Barella draw or creek, nor has said stream any source other than occasional rainfalls. That it is dry and without any water in same for the greater portion of the time, and never has any water except the rainfall which collects therein from 10 to 20 times a year in rainy years. That it is dry between rainfalls, and in dry years never flows at all, and none of said rainfalls collects or is collected in the draw below the U dam, but collects in the draw above the dam, and remains therein above the dam from one to five days, after which rainfall the draw is dry until the next rainfall, and said draw has no other source of water than the said occasional rainfall, and has no stream to which riparian rights attach, nor in which the plaintiff has any riparian or other rights. That plaintiff did not procure any appropriation of waters in pursuance of law, and that there were no unappropriated waters which he could acquire in the manner alleged, and the state of Texas and board of water engineers had no legal authority to grant to the plaintiff waters belonging to or flowing across defendant’s lands. That none of such waters were reserved in the state at the time of the sale of defendant’s lands, and all of said waters and the right to use same passed from the state with the sale of the land. That the hearing and action of the board of water engineers declared'upon by the plain tiff could not in any wise affect defendant’s rights. That if the permit declared upon by plaintiff was granted, that it was expressly subordinate to the rights of the defendants as appropriators of water prior to July 1, 1913, and his said rights, if he has any, by reason of the permit, are inferior to and subordinate to the rights of the defendant in the manner in which they have been using same, as above set forth. That plaintiff has not acquired any rights of way across and over the land of the Wilson-Pophain Cattle Company or the lands of these defendants to carry any water from the “U” dam aforesaid to his lands. That the dam of defendants complained of by the plaintiff is completed and in use by them, and the ditches leading therefrom practically completed, and defendants were preparing to use the same for the diversion of such rain waters heretofore diverted at the U dam, and that, with the permission of the Wilson-Popham Cattle Company, they will carry said waters from the U dam to the dam constructed by the defendants.

Upon a hearing, a temporary writ of injunction was ordered issued, enjoining the defendants and each of them from withholding any of the waters of Barreda draw by means of any dam or obstruction in Barella creek until the plaintiff shall have received of the waters of said creek the amount equal to his appropriation and permit, and enjoining the defendants from maintaining said dam in such manner as would obstruct the free flow of the waters of Barella creek, and commanding the defendants and each of them, if such dam is now so constructed as to obstruct the free flow of said waters, to make such opening in and through same as will permit the free flow of water down the creek. From this order, the defendants have appealed.

On June 10, 1914, the board of water engineers of the state granted Short a permit to appropriate and use an amount of the public waters of the state from the flood waters of Barella creek, not to exceed 1,920 acre feet per annum, for the purpose of irrigating said section 58, the water so appropriated to be diverted by means of a diversion dam on said section at such times as flood or storm waters flowed down said creek. The permit recites that the privileges granted thereby were subsidiary to the rights of any appropriators of water from the same source who began or completed any storage or irrigation plant and diverted any water prior to July 1, 1914.

Plaintiff testified:

“I own section 58, which is located west of north from the U dam. The U dam is up the creek 2% miles from his land. 1 have owned my land since November, 1911. The U dam diverts the water on both sides. The new Hoefs dam was commenced April 11, 1915. In, addition to the dam there is a canal which commences at the new dam and runs in a westerly direction to a draw which runs from Neil Wilson’s pasture, through the creek and across the draw and then in a northwesterly direction to Hoefs’ land. That dam is about 1% miles from the U dam. The U dam is above the Hoefs dam. The Hoefs dam is between the U dam and my land. Up to the time of the construction of the Hoefs dam, the effect the U dam had upon the water coming down to my land was that it diverted the water from the west side of the creek into Neil Wilson’s pasture and then came down the draw to a road, a low place, onto my land. The U dam diverted all the water from the channel there. There was some water found its way back into the channel around the ends of the U dam,, enough to do me and Mr. Hoefs both. The water that found its way into the channel at both ends of the U dam would come right through my land. It was not utilized on that land, but I acquired it. It had no way of diversion. The water that I utilized came right close to where my dam is down the little draw, and Mr. I-Ioefs’ boys and my boys threw up a little levee and ran it back into my pasture and on towards Mr. Hoefs’. My dam is constructed near the south line of my land to divert the waters from the rear creek, which flowed past the ‘U’ dam. I constructed the dam after receiving the permit. The purpose was to divert water to raise grass, crops, orchards, etc., on my land. My land would not now receive any of the waters that may come down the rear draw on account of the Hoefs dam and canal., If that dam were not there, I would receive, plenty of water by means of my dam. I would receive it on my land from the Barella. That is true of the TJ dam. Leaving the TJ dam where it is and taking out the Hoefs dam, my dam would divert all the water I want.”

It is contended by appellants that the court erred in granting the injunction, giving plaintiff a prior right to the rain waters flowing across their lands, because the evidence discloses that the same were mere surface waters, not subject to appropriation, and to which defendants had an absolute right, and if subject to appropriation, plaintiff’s rights were shown to be subordinate to defendant’s right to use such waters.

For the purpose of this appeal it is admitted by appellee that Barella creek is not a stream to which riparian rights can attach, and it is argued by appellants that the waters flowing down same are mere surface waters, not subject to appropriation, and therefore they had an absolute right to capture and impound same at such points upon their lands, and in such manner as they saw fit, and make such use thereof as they pleased. In support of this position, we are referred to Kinney on Irrigation & Water Rights (2d Ed.) §§ 301, 302, 306, 312, 318, 654, which support his contention. But the doctrine there stated and declared by the courts of various states in the Western arid region cannot override our statutory provisions upon the subject as embodied in the Act of April 9, 1913. Vernon’s Sayles’ Civil Statutes (1914) tit. 73, c. 1. It is thereby provided, in its first section, that the unappropriated waters of the storm, flood or rain waters of every river or natural stream, canyon, ravine, depression or watershed, within the state, the title to which had not already passed from the state, was declared to be the property of the state, and the right to the use thereof for irrigation purposes might be acquired by appropriation as therein provided. There is no contention that any of the waters of the Barella have their source or origin on the lands of appellants, but, on the contrary, it is admitted the Barella has its source in a water,shed of large area, lying to the south of the TJ dam in the foothills and mountains. They are the rain waters of a watershed flowing through the Barella draw; and, in view of the statute, the inevitable conclusion follows that neither appellants nor appellee have any riparian rights in the waters of the draw, and that any right to such water which either may have must have been otherwise acquired. This disposes of the first contention that the waters were not subject to appropriation and became the property of the first captor and impounder thereof.

Passing to the next contention, it is admitted by appellee that appellants have a prior appropriation and that his right is subsidiary to that of appellants.

It thus becomes essential to some extent to determine the appropriation right of appellants.

Section 12 of the Act of April 9, 1913, provides:

“Every person, association of persons, corporation or irrigation district who shall have heretofore constructed or partially constructed any dam, reservoir, lake, canal, ditch or other work for any of the purposes named in this act, who have not heretofore done so, shall, within one year after this act goes into effect, and not thereafter, file for record in the office of the county clerk of the county where the dam, lake, reservoir, pumping plant, intake, or headgate, ditch or canal may be situated, or to which said county may be attached for judicial purposes, and which shall be recorded by said clerk as hereinafter provided, a sworn statement in writing showing approximately the number of acres of land that will be irrigated, the name of such ditch or canal, the point at which the headgate thereof is situated, the size of the ditch or canal and width and depth, and the carrying capacity thereof in cubic feet per second of time, the name of said stream from which said water is taken, the time when the work was commenced, the name of the owner or owners thereof, together with a map showing the route of such ditch or canal; and when the water is to be taken from a reservoir, dam or lake, the statement above provided for shall show in addition to the ditch and other things provided for, the locality of the proposed dam, reservoir or lake, giving the names or numbers of the surveys upon which it is to 'be located, its holding capacity in cubic feet of water, the acreage and surface feet of land that will be covered, and the limits of such lake, reservoir or dam, and the area of the watershed from which the storm or rain water will be collected.”

The sworn statement and map provided for in this section was filed by appellants Otto Hoefs and the Wilson-Popham Cattle Company. In the statement, it is set forth that Otto Hoefs and Wilson-Popham Cattle Company, having theretofore constructed or partially constructed the thereinafter described dam, canals, ditches, and other works for the purpose of irrigation, do hereby make and declare this appropriation of waters as of the date of the beginning of the work; that the water was to be taken from Barella draw; that the work began in 1900, and “the point at which the headgate of said canal is situated is about fifty feet south of the south line of section No. 24, block C-16, public school lands, Beeves county, Texas, at the point where Barella draw crosses said land. Also another headgate located on said Barella draw about 30 feet north of the northwest corner of section No. 322, block No. 13, PI. & G. N. B. B. Co. survey, in Beeves county, Texas. The size of the ditch or canal at the headgate is 20 feet wide, 3% feet deep, decreasing gradually in size to the north terminus thereof, which is 3 feet wide and 1 foot deep, the carrying capacity thereof to be approximately 100 cubic feet per second of time.”

It was therein also stated that the water is to be taken from a dam located at the respective headgates above’mentioned, as same flows down said draw, but said dam will not cause any lake or reservoir to result therefrom, but will divert the flood, storm and rain waters of said Barella draw. The two headgates therein mentioned are shown upon the map accompanying the statement. The dam first described is the one referred to in the pleadings as the U dam, and the one second described is the one oí which appellee complains and against which the injunction is directed. The date this statement and map was filed with the county clerls is not definitely shown, but it was some time between January 23 and June 27, 1914. A certified copy of this statement with a true copy' of the map accompanying same was filed in the office of the board on June 29, 1914, accompanied by a sworn statement as required by section 14 of the act- In the accompanying sworn statement, it was stated:

“That since making the accompanying filing with the county clerk of Reeves county, Texas, the following work has been done under and in pursuance of said filing: Work was first commenced in 1900, or prior thereto, when a dam worth about $1,500 was placed in said Barella draw; from Í9Í0 to January, 1914, about $400 was expended on dams; from January 24, 1914, to this time about $1,000 has been expended for work on dams and material used therein. The dams herein mentioned cause the waters to spread over the lands to be irrigated. Later we propose to construct headgates and ditches in order to convey the flood and storm waters to the various portions of our lands.
“The following work of construction has been completed, a part of which is in actual use: Old dam was located about fifty feet from the south line of section 24, block 0-16, public school land in Reeves county, Texas, and was completed, but afterwards washed out. The new dam begins at the S. W. end of old dam and extends a little east of south 220 yards; thence S. E. 140 yards; thence E. 60 yards; thence N. E. 280 yards. A spur dam begins 85 yards S'. W. of center of main channel and extends 130 yards southeast. These dams are all completed and in actual use. From the south end of the spur dam a plank dam 'begins and runs southeast 150 yards, 110 being finished. We will construct in this dam two headgates, one about 5 feet fc>. of spur dam and will carry 100 feet of water per second, the other in main channel to carry 100 feet per second to a lower dam to be situated near the N. W. corner of section 322, block 13, H. & G. N. R. R. survey. These last-mentioned headgates and dams are not yet completed. None of the ditches shown on map are yet completed.
“The following portions of above work is in possession, but not in actual use. All completed work is in actual use.
“The volume of water being diverted is 100 cubic feet pen second for-days and is being used in irrigation.”

Otto Hoefs testified:

“I propose to put a flume through the Wilson-Popham Cattle Company’s dam. I propose to get the water from the Wilson-Popham Cattle Company’s dam (U), which is above my dam, to my dam, by putting a flume through it with their permission. I have their permission to do that. All the water I divert at my dam will be the water I release through this flume from the U dam. That water, instead of going across the Neil Wilson section and across the Short section, as it formerly did, by reason of these levees, I will now take it through a flume and down the Barella draw and to my dam, and take it out there through ditches to my field.”

In our opinion, the two dams are simply parts of a complete whole, an irrigation system, the first work of which was done when the “U” dam was first built about 1900, and which has been used ever since. It was a partially constructed work, and by virtue thereof the appellants were entitled to make a prior appropriation of water under the provisions of the act mentioned. The act has been complied with by them in the manner indicated, and their prior appropriation thereby perfected. The U dam is the primary and basic dam of the system, and the dam near the northwest corner of section 322 is subsidiary and secondary thereto. We can see no reason whatever why appellants should not be permitted to carry the water, to which they are entitled under their appropriation, in the natural channel of the draw from the U dam to the second diversion ■dam. The fact that they use the natural channel of the draw instead of an artificial ditch to convey the water to which they are entitled is a matter of no consequence. So long as they do not undertake to use more than this appropriation entitles them to use they are within their rights and should not be interfered with. The waters which they are undertaking to divert at the second dam are waters which they release at the U dam through a flume, and not waters which find their way back into the channel of the draw through seepage or natural drainage.

Under the record here presented, it is unnecessary for us to determine whether appellants are entitled to divert and use 100 cubic feet per second at the U dam and an additional like amount at the other. In any event they are entitled to a total of 100 cubic feet per second. Under the court’s order they are restrained from diverting any part of this amount at the second dam, irrespective of the amount diverted and used at the U dam. It does not appear how much is being diverted and used at the U dam. Unless it shall appear that the amount diverted at the U dam, together with that there released through the proposed flume and thence transported down the draw to the second dam and there diverted, shall exceed the amount of water to which appellants are entitled under their appropriation, appellee is not entitled to any relief.

If appellants were undertaking at the second dam to divert water which finds its way back into the draw by seepage at the U dam, and by natural drainage, or if the aggregate amount attempted to be diverted exceeded 100 cubic feet per second, "then it would be necessary to determine whether appellants’ prior appropriation is 100 or 200 cubic feet per second, but in the state of the pleadings and evidence, it is unnecessary to determine this question.

This discussion has departed from the issues raised by the pleadings, due to the fact that appellee, in some respects assumes here an attitude in opposition to the allegations of his petition. In fact, we might dispose of this appeal upon the theory that the evidence fails to substantiate material allegations upon which plaintiff predicates his right to an injunction, it clearly appearing that the Ba-rella is not a flowing stream to which, as such, riparian rights attached in plaintiff’s fayor, which was alleged as a basis for the injunction. We have preferred, however, to discuss the case from the standpoint assumed by appellees in this court.

The temporary injunction issued herein by the court below is dissolved, and the cause is reversed and remanded.
      <§=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MÓURSUND, J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. STUART.

    (No. 5480.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 16, 1915.
    Rehearing Denied July 3, 1915.)
    1. Depositions <&wkey;68 — Exhibits—Identification oe Exhibits.
    Where exhibits to depositions are so described in the answers as to render their identity certain, or where their identity is conclusively established by extraneous evidence, they are admissible in connection with the depositions, although not inclosed therein.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 155-157; Dec. Dig. &wkey;6S.]
    2. Depositions <&wkey;83 — Exhibits—Suppression oe Depositions.
    Where X-ray photographs were made exhibits to a deposition in a personal injury case, but were not returned in the same envelope, but were unnecessary to a proper understanding of the deposition, it was not error to refuse to suppress such depositions on the ground that they were unintelligible without the exhibits.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. <@=>83. ]
    3. Appeal and ErboX <&wkey;1051 — Review — Haemless Eeeoe.
    Admission of X-ray photographs as exhibits in connection with depositions in, an action for injuries to plaintiff’s leg while switching railroad cars is harmless error, where other expert evidence was given showing from such photographs that plaintiff’s leg would improve and again become serviceable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;>1051.]
    4. Damages <&wkey;206 — Physical Examination.
    In an action for injuries to plaintiff’s leg while switching railroad cars, it was not error to refuse to allow physicians to examine the leg, except separately, the examiners to 'be placed on the stand by defendant, and before the jury, where each of such physicians had already made a thorough physical examination prior to the trial.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. <&wkey;>206.]
    5. Damages &wkey;>206 — Physical Examination.
    In a personal injury case, where defendant’s motion for a physical examination of plaintiff was denied, but no suggestion was made that plaintiff would utter exclamations of pain while being examined, and he had previously exhibited his injury to the jury, although defendant had a right to have physicians of its own selection make a proper examination, whether such examination , could be made in the presence of the jury was to be determined by the nature of the injury sustained.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. <@=>206.]
    6. Appeal and Eeeoe <&wkey;273 — Reseevation OE GROUNDS OE REVIEW — EXCEPTIONS.
    In a personal injury action, an exception to the court’s definition of “reasonable care” on' the ground that it was not correct is too general for consideration on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. &wkey;273.]
    7. Appeal and Eeeoe &wkey;>273 — Reservation, oe Grounds oe Review — Exceptions.
    An exception to the charge in a personal injury case that plaintiff’s theory of the case was-presented and defendant’s theory excluded is too-general to entitle the assignment to consideration.
    [Ed.i Note. — For other cases, see Appeal and Eirror, Cent. Dig. §§ 1590, 1606, 1620-1623,. 1625-1630, 1764; Dec. Dig. &wkey;273.]
    8. Trial &wkey;>352 — Special Issues.
    In a personal injury case, a special issue as-ta whether plaintiff was knocked down and run over and injured was not objectionable as combining two issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    9. Trial <&wkey;351 — Submission oe Issues.
    An assignment of error on the ground that the court refused to submit certain issues will be overruled when such issues are elsewhere submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351J
    10. Trial &wkey;>352 — Special Issues — Emphasizing Evidence.
    Issues which are argumentative and on ’the weight of the testimony in singling out portions thereof are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    11. Trial &wkey;>350 — Special Issues.
    Issues not made by the pleadings are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]
    12. Trial <&wkey;350 — Special Issues — Damages. Special issues as to damages, findings under
    which would be of no practical benefit on the question of whether the verdict is excessive,, are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 828-833; Dec. Dig. &wkey;350.]
    13. Trial <&wkey;350 — Special Issues — Subsidiary Issues.
    The court is not required to submit special issues calling for findings on subsidiary questions of fact or evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]
    Appeal from District Court, De Witt County; John M. Green, Judge.
    Action by J. N. Stuart against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Proctor, Yandenberge, Crain & Mitchell, of Victoria, for appellant. Carlock & Oarlock, of Ft. Worth, and Davidson & Bailey, of Cu-ero, for appellee.

       writ of error pending in Supreme Court.

   MÓURSUND, J.

This is a suit for damages for personal injuries sustained by ap-pellee, a switchman in the employ of appellant The trial resulted in a verdict and judgment for plaintiff. As no contentions arise in regard to the pleadings, the nature of the issues made thereby will be sufficiently disclosed by a statement of the substance of the findings made by the jury in answer to special issues, in addition to their finding of the amount of damages suffered by plaintiff, as follows: That on the night of the accident to plaintiff and just prior thereto the foreman of the switching crew announced a plan of work to the effect that after putting the caboose of the freight train that had come in on the Waco main line in on the caboose track, the crew should kick the empty coal car in the rear of said train on to the lead track, and then kick or shove down depot No. 1 track others of said cars; that it was the duty of plaintiff, as long fieldman of said crew, to catch and secure the cars that were to be thrown in on said track under the plan of work, as it was then being carried out; that the plaintiff was knocked down on the lead track and run over and injured by one or more wheels of the coal car on said track running over his leg on the night of December 30, 1912; that plaintiff was knocked down and run over by reason of other cars being lucked or shoved up said lead track by other members of defendant’s switching crew; that the short fieldman failed to throw the switch leading from the lead track to depot No. 1 track just before plaintiff was hurt; that such failure to throw the switch proximately caused the production of plaintiff’s injuries; that such failure to throw the switch constituted negligence; that the switch lights were not burning on the switch stands where the switch engine was handling the cars at the time of the accident to plaintiff and the lead track where plaintiff claimed to have been injured; that it was negligence on the part of defendant not to keep and maintain said switch lights burning at said switch stands; that such failure to have the switch lights burning proximately caused or contributed to cause the production of plaintiff’s injuries; that plaintiff was in the discharge of one of the duties of his employment when he sustained the injuries; that plaintiff exercised such care as a man of ordinary prudence would have used under similar circumstances to carry out the instructions of Dr. Reuss as to care and exercise of the injured leg.

By the first assignment complaint is made of the overruling of defendant’s motion to suppress the deposition of H. L. Warwick, taken on behalf of plaintiff, and filed June 4, 1914, for the reason that the exhibits, which consisted of two X-ray alleged photographs of plaintiff’s leg, were not inclosed in an envelope with said deposition, but were placed in a separate envelope, which was unsealed and open, and not directed to the clerk of the district court of De Witt county, Tex., and because the depositions of the witness are with reference to, and are based upon, said photographs to such an extent as to render said depositions unintelligible in the absence of said exhibits. The second assignment complains of the admission in evidence of the two photographs referred to in the first assignment of error. The statement under these assignments discloses that the photographs were so large that they could not be put in the regular deposition envelope used by the notary, and that they were put in a large envelope, which was attached to the deposition envelope, but was unsealed. The evidence conclusively showed that the photographs were the ones referred to in the depositions. No contention was made that they were not the same ones. The photographs were marked Exhibits Nos. 1 and 2, and bore the signature of the notary public who took the depositions, which signature was proved up. The one marked Exhibit No. 1 had written on it the words, “J. N. Stuart, Right Leg, 5 — 18—14,” with initials appearing to the witness to be “H. W.” On the other one was the same statement, but the initials appeared to the witness to be “H. W. W.” The statement does not contain the substance of the testimony contained in the deposition, nor is any attempt made to show in what respect the testimony was prejudicial to appellant. The testimony contained in the deposition is brief. It is to the effect that on May 18, 1914, Warwick made two X-ray pictures of plaintiff’s right leg; that he attached the pictures, marking them respectively No. 1 and No. 2, and having the notary mark them for identification; that when he took picture No. 1 Stuart was lying on his back on the table with the plate underneath the back of his leg and the X-ray machine above; that when No. 2 was taken Stuart was sitting in a chair with his leg rotated, and the plate beneath the side of his leg; that from the conditions of the leg as disclosed by the pictures mentioned he found that there is a fibrous union of the tibia (the large bone of the leg below the knee in the front portion of the leg) and a fibrous and bony union of the fibula (the small bone in the rear portion of the leg), and a bony spic-ulse and fibrous attachments extending from the lower third of the tibia and attached to the lower third of the fibula; that the bones are not in alignment. In addition, the witness testified to matters showing his qualifications as a surgeon and his experience in the taking of X-ray photographs.

Our statute is silent in regard to exhibits to depositions. While it is usual to inclose the exhibits with the answers and interrogatories, it is not necessary to do so. If they are so described in the answers as to render their identity certain, or if their identity is conclusively established by extraneous evidence, they are admissible in connection with the depositions. Pope v. Anthony, 29 Tex. Civ. App. 298, 68 S. W. 521; Toby v. Oregon, Pacific Ry. Co., 98 Cal. 490, 33 Pac. 550; Bird v. Halsey (C. C.) 87 Fed. 674; Crosswhite v. Brewing Co., 10 Ala. App. 425, 65 South. 298; 4 Jones on Ev. (Blue Book Ed.) p. 219.

But, regardless of whether the photographs were admissible as a part of the depositions, they were not so necessary to an understanding of the witness’ testimony descriptive of the condition of plaintiff’s leg as to render such testimony inadmissible, and justify the suppression of the entire deposition. Crosswhite v. Brewing Co., supra. While it has been held that the opinion of an expert is the best evidence of what is shown by an X-ray photograph (see Marion v. Coon Constr. Co., 157 App. Div. 95, 141 N. Y. Supp. 647), it may be doubted whether any other rule should be applied thereto than the one aplied to ordinary photographs, namely, that the photographs constitute the best evidence of what they contain. But in this case no objection of this character was urged against the admission of the depositions. It was merely contended that without the photographs the testimony was unintelligible, which contention is without merit, for the witness states the condition of the bones so that a jury would understand it better than if they, without any explanation, looked at the photographs.

But, even if it were conceded that neither the depositions nor the photographs should have been admitted, we conclude that their admission was not such an error, in view of the evidence given by other parties, as requires a reversal of the judgment. Many physicians testified in the case, and the testimony of all of them showed the condition of the bones to be as shown in the photographs in so far as alignment was concerned, as well as the nature of the breaks. Dr. Talbot, a witness for defendant, who had examined plaintiff’s leg about December 30, 1913, referring to the photographs, testified that they represented the position of the bones in plaintiff’s leg correctly. He also testified that the pictures did not show that the ankle was ankylosed; that the only way of telling whether ankylosis existed was by the X-ray. Again, he testified there was absolutely nothing in the picture to show that plaintiff could not use the ankle. This witness also testified that the photographs showed that the small bone was united by a callous material, and the large one was partially united, and he estimated that within six months after the photographs were taken the bony union would be complete.

Dr. Beuss, defendant’s witness, who operated on plaintiff and removed the broken bones, when the leg was first injured, also testified in regard to the photographs, stating that from what he understood to be the condition of the leg when plaintiff left the hospital, and from seeing the X-ray picture No. 1, he would consider that the bones were pretty fixed and firmly united, but not as straight as they were before they were brok: en.

Dr. Lackey, another witness for defendant, testified that the photographs showed 75 per cent, of a union in the big bone, and a complete union of the small bone, and showed that tiñere was no overlapping of the bones.

Aside from the testimony of Dr. Warwick, hereinbefore stated, plaintiff had no witnesses who testified concerning the photographs. They were apparently used by defendant to good advantage. This is practically admitted in another portion of appellant’s brief, wherein the statement is made that appellant’s witnesses Drs. Beuss, Lackey, and Talbot claimed that a bony union has nearly formed in plaintiff’s leg, and that he would have a serviceable working leg; and they claimed that this was shown by the X-ray photographs introduced in evidence by plaintiff, and as to which plaintiff’s physicians did not testify, except the man who took the photographs, and that he merely described them. The assignments of error are overruled.

Plaintiff, while testifying, bared his leg and exhibited the same to the jury, and while it was so exhibited testified as follows:

“In regard to whether I have ever had any thing wrong with either of my legs before that time will say, ‘No.’ The injury shows for itself, three or four inches above the ankle; right here (indicating). Tes; the scars are there now; this place here (indicating) and under the side, where the last piece of bone worked out. This happened about a month and a half, or a little longer; there is a piece of bone coming out here. I can tell from the feeling of it; it feels like a piece of glass or thorn. This place here (indicating) hurts pretty bad; there is the end of a bone there; that skin scales üp there and peels off, and then scales off again. I can work the leaders in my leg down to there (indicating). The position my foot stands in is down. That leg is shorter than the other. I cannot work my toes on that foot, nor can 1 raise that foot from the ankle. My foot is painful to me all the time. If I put any weight on it it feels like the bone was going out at the sides, as near as I can describe it. I have not put any weight on it, except some time when I go to sit down I let it touch the floor, and maybe put a pound or two of weight on it then. When I do, I imagine it feels about the same as if the bone was going out of the side of it. I think that is my shin (indicating). Yes; there is a shortening of several inches, about the width of the car wheel; I think that was what ran over it. When I left the hospital it was bandaged up; that is, it was in a cast, and the bandage was over the cast. As to. the diuerence between the condition of the leg now and when 1 loft the hospital on July 19th, at the time I left there it was limber at the break, and would drop down if I let it, and I begged the doctor not to turn it loose, and he moved it and twisted it that from the time it kind of healed over and quit running pus up to the present time. It is not possible, nor has it at any time been possible, since the injury, to use that leg in any serviceable way. I cannot use it at all. It is not a bit of use that I know of. It just hangs there and aches all the time, and God knows I would walk on it if I could.”

Thereupon defendant filed a motion requesting that plaintiff be required to re-exhibit his leg, and submit to physical examination of same by defendant’s witnesses Drs. Beuss, Lackey, Brown, Frobese, Muegge, and Talbot, all of whom had examined plaintiff’s leg, but at periods separated from the day of trial by from 8 to 18 months. The court inquired to what extent plaintiff’s attorneys resisted the motion, whereupon one of the attorneys for plaintiff replied:

“The motion does not specify any time or place where the examinations should be had or conducted. We have ho objection to their examining this man in the courtroom and in the presence of the jury. I do not care whether before they take the stand or while they are on the stand, or what period of the examination it is done, provided they let only one man at a time examine him.”

The court then said:

“You may do that — have either or all of them examine him separately, as they are witnesses, before the jury. The motion as presented is overruled.”

The defendant excepted to the overruling of the motion with the qualification made by the court.

Thereupon defendant presented in writing a motion asking the court to appoint three or more reputable physicians and surgeons of De Witt county to make an examination of plaintiff’s leg. The court overruled this motion, stating that the right to examine plaintiff’s leg would be granted to any physician defendant might introduce as a witness. Thereupon one of the attorneys for plaintiff asked the following question:

“We will have to put them on the stand before they will be permitted to examine the plaintiff?”

To which the court replied: “Yes.” Thereupon counsel for plaintiff said:

“We do not object to letting him stand out there in the presence of the jury and examine the plaintiff, and then, if they do not want to use him as a witness, they need not.”

Counsel for defendant replied:

“We have the court’s ruling. We want our exception noted.”

The overruling of these motions and the refusal to permit the examination except as stated by the court is assigned as error by means of the third, fourth, and fifth assignments of error.

The bill of exceptions also shows that subsequently counsel for plaintiff, while cross-examining Dr. Talbot, a witness for defendant, asked him to examine plaintiff’s leg, whereupon counsel for defendant interposed, stating that an examination in the courtroom and in the presence of the jury was unsatisfactory, and defendant objected to it being made. The court then said:

“I will not insist that the doctor examine this man’s leg, in view of the opposition of plaintiff to the examination proposed, which the court holds to be right, but, if the doctor does not think that he can make a satisfactory examination here, the court will not compel him to make an examination.”

Thereupon counsel for plaintiff asked the witness:

“Can you tell by examining the man here what his condition is?”

To which the witness answered:

“No; I think it would be unsatisfactory; I would not attempt it.”

On cross-examination he was again asked:

“Do you or not decline to take up this man’s injured leg and examine it?”

To which he replied:

“No; I would not like to do it unless I had him with the other physicians at a private room where I could go into the case thoroughly. I would not like to do it in open court.”

Dr. Lackey, who assisted in the first operation on plaintiff’s leg, and saw it at times until plaintiff left the hospital, which was about July 19, 1913, was asked by plaintiff’s counsel, on cross-examination:

“Can you examine him (Stuart) here, and settle that question about ankylosis?”

To which he replied:

“I am satisfied there would be ankylosis and pain, too, probably.”

The witness was then asked:

“You could tell by looking at it here, could you not?”

To which he answered:

“Not without examining the foot and making a thorough examination.”

He was then asked:

“You could look at it here in the presence of the jury and tell about it as well as anywhere else, could you not 7”

His answer was:

“I suppose so, if he would submit to it.”

Dr. J. H. Reuss, witness for defendant, testified, in effect, that he was the physician who had charge of plaintiff’s case during his entire stay at the hospital in Cuero, and that the last time he examined the plaintiff’s leg was in Et. Worth, Tex., in October, 1913. On cross-examination of this witness the following questions and answers occurred:

“Q. If these muscles and ligaments at this part of the leg die out and have grown against the leg, would that account for the stiffening? A. Do you mean the stiffening in the ankle? Q. I mean would it account for the foot being in that position and for his' inability to work his toes? A. He can work his toes. Q. He can? A. Yes. Q. I will give you an opportunity to show the jury. A. He could work them the last time I saw him. Q. Do you want an opportunity to show the jury he can work his toes?
“Mr. Vandenberge: We would like to have him in accordance with the motion.
“Mr. Oarlock: You can have him for examination here in the presence of the jury.
“Mr. Vandenberge: If we are going to examine him we want to examine him right.
“The Court: The court adheres to his original ruling.
“Q. Could you take this man here before the jux*y and show them whether or not he can move his toes? A. Not here; but I think I could in my office or any place where I could have the proper supplies, an electric battery, etc. I think I could do it. Q. You do not want to do it here? A. I will do anything that I am instructed to do; I am not here for any motive except to tell the truth and act the truth according to my best knowledge and belief.”

It is apparent that all that portion of the bill of exceptions relating to what occurred when defendant’s witnesses Talbot, Lackey, and Reuss were being cross-examined relates to rulings favorable to appellant, made when counsel for plaintiff was trying to get said witnesses to examine plaintiff’s leg. The testimony of these witnesses on the issue whether a proper examination could be made in the presence of the jury was not before the court when he made the rulings complained of in the assignments now being considered. Said motions were not renewed, and at the time they were made no contention was made or proof offered to the effect that a proper and reasonable examination could not be made in the presence of the jury. No suggestion was made at that time that plaintiff would probably utter exclamations indicative of pain while being examined, but when Dr. Talbot was testifying that suggestion was made. If the testimony of the three witnesses had been given on the issue when it arose as to whether the court was tehder-ing the right to make a proper examination, it would have presented an issue to the court upon which the testimony was conflicting, and of such character as to support a finding that a proper examination could be made in the presence of the jury.

Plaintiff having exhibited his injured leg to the jury, defendant had the right to have physicians of its own selection make a reasonable and proper examination of such leg, under the direction of the court. G., H. & S. A. Ry. Co. v. Chojnacky, 163 S. W. 1011; H. & T. C. Ry. v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386. Whether a reasonable and proper examination can be made in the presence of the jury must be determined by the nature of the injuries alleged to have been sustained. For instance, a proper examination of the eyes might require a dark room and apparatus not practicable to be brought into the courtroom. If it be made to appear to the court that a proper and reasonable examination cannot be made in the presence of the jury, it would be the duty of the court to permit such ex.amination to be made elsewhere. Houston & T. C. Ry. Co. v. Bukowsky, 175 S. W. 477. In the instant case it appeared from the first motion that each of defendant’s witnesses had •examined plaintiff’s injuries, and each was thoroughly familiar with the nature thereof. The evidence shows that the plaintiff was tak•en from the place of the accident forthwith to the defendant’s hospital at Güero, where he was kept under the control and ministration' •of the defendant’s surgeons for a period of nearly seven months, leaving the hospital on •July 19, 1913 ; while there the defendant had taken several X-ray photographs of the plaintiff’s injured leg, performed two or more operations upon the same, and had had all opportunity for study and examination of the extent of plaintiff’s said injuries; that in October, 1913, plaintiff, at the request of Dr. Reuss, the defendant’s chief surgeon, met him by appointment in Ft. Worth, and there submitted .to a thorough examination of his said leg by said physician. Again, on December 30, 1913, the claim agent for the defendant, Mr. Ernest, requested the plaintiff to submit to an examination of a disinterested physician selected by the defendant, to wit, Dr. Lyle Talbot of Ft. Worth, Tex. This the plaintiff agreed to, and by appointment went to the said physician’s office on ■said date and submitted to a thorough examination at the hands of said physician, who appeared and testified on the trial of the ease in behalf of the defendant. We are of the opinion that he could not be required to submit himself to another X-ray examination, and it was not proposed that he should do so. For that matter, plaintiff introduced in evidence two X-ray photographs of the injured leg taken about three weeks before the trial, which were used by defendant to good advantage; its witnesses testifying to the condition of the leg as shown by the photographs. The witnesses could have made the same kind of an examination of the leg in the presence of the jury, as they had theretofore made upon other occasions. We do not think he could be required to submit to the use of an electric battery upon his person, or required to submit to the administration of an anaesthetic. It may be true, as suggested by counsel for appellant, that examination before the jury may develop into a controversy between the injured person and the physicians, and that suffering may be simulated, and the probability of this occurring should be taken into consideration by the court. In this ease, although each physician mentioned in the motion had examined plaintiff’s leg, no testimony was adduced to show that such examinations had resulted in a controversy between plaintiff and the physicians, or that plaintiff had made exclamations indicating suffering, nor was it shown that the examination would necessarily result in causing pain to plaintiff. It would be better in most cases to have the jury withdrawn while the examination is being made, but it cannot be said that in all cases this must be done if requested. To require the examination to be made in the presence of the jury over the protest of parties may require a reversal when such examination causes such suffering as to elicit from the injured party signs and exclamations calculated to arouse the prejudice of the jurors. But in this case we do not think the bill of exceptions shows that the court erred in overruling the two motions, with the qualification thereto announced by the court. In this connection we will say that the ruling of the court is sought to be construed as requiring defendant to examine the expert witnesses after they had examined plaintiff, without giving an opportunity to consult with them regarding the questions to be asked. We do not so understand the ruling of the court, and plaintiff’s counsel made it plain that they were not insisting upon any such rule, for they stated that if, after examining the plaintiff, defendant did not want to use the witnesses, they need not do so. The assignments are overruled.

By the sixth assignment complaint is made of the overruling of an exception to the court’s definition of ordinary care. The exception was to the effect that the definition was not correct. It is obvious that the objection to the charge was too general. The court should be informed what the objection is, not merely that there is an objection. The assignment is overruled. T. & N. O. Ry. C. v. Petersilka, 176 S. W. 70.

The seventh assignment complains of the overruling of the following exception to the charge:

“This (defendant excepts to all of said issues as framed by the court and submitted in said charge, considered as a whole, because the effect of said issues is to submit to the jury the plaintiff’s theory of this case alone, and to exclude the defendant’s theory of this case, and all of the same constitute a purely unilateral presentation of this case to the jury.”

This exception is also so general that the assignment should not be considered. The assignment is followed by a statement, and three propositions which relate to the right to have material issues submitted, and are not relevant to this assignment. We gather from the assignment that appellant’s real objections to the charge as given were as follows: (1) That the answer “Yes” to all issues except the seventh and those relating to damages and deduction for contributory negligence, would determine the issues in favor of plaintiff; (2) that the evidence did not raise issues Nos. 1, 2, 7, and 10. These objections were not communicated to the court, and cannot be urged under the general objection above set out. We conclude that the assignment is without merit.

The eighth assignment complains of the overruling of an exception to the third question embodied in the charge. The issue was as follows:

“State whether or not the plaintiff was knocked down on the lead track and run over and injured by one or more wheels of the coal car on said track running over his leg, on the night of December 30, 1912. Answer ‘Yes; he was,’ or ‘No; he was not.’ ”

The objection was that two issues are combined in tlie question, and that the question was asked whether one or more car wheels passed over plaintiff’s leg, when he testified that two wheels passed over his leg, and alleged that the wheels of the car ran over his leg. There is no merit in these contentions. The facts inquired about are so closely related to each other that it was unnecessary to separate them into distinct questions, and the jury had to find all such facts in order to return an affirmative answer. Plaintiff had alleged that he was injured in the particular manner inquired about, except that his allegation was that car “wheels” ran over his leg. Only the substance of the issue need be proved, and proof that one ear wheel passed over the leg would be sufficient under the allegation. We conclude there is no merit in the assignment and it is overruled.

The ninth assignment complains of the overruling of an exception to special issue No. 3A, which reads as follows:

“In case you have answered issue No. 3 in the affirmative, then state whether or not plaintiff was knocked down and run over by reason of other cars being kicked or shoved up said lead track by other members of defendant’s switching crew.”

The exception to this issue reads as follows:

“The defendant excepts to issue 3A as embodied in the court’s charge, because again in said issue the jury are requested to state whether or not plaintiff was knocked down and run over, which emphasizes the error pointed out in seventh objection to third issue.”

The objection was not well taken. The jury was not asked to again pass on the issue whether plaintiff was knocked down and run over by the coal car, but was asked, if they found that to be the fact in answer to special issue No. 3, then to state whether this occurred on account of other cars being kicked or shoved up the lead track by other members of defendant’s switching crew. The assignment is overruled.

The tenth assignment is overruled because the issue which the court refused to submit was submitted in issues Nos. 3 and 3A. When said issues are taken together they required the jury to find: First, whether plaintiff was knocked down and run over by the coal car; second, whether this occurred on account of other cars being kicked or shoved up the lead track. Surely it was not necessary to ask the specific question whether the cars so shoved collided with the coal car. The assignment is overruled.

The eleventh assignment is based upon the refusal of the court to require a finding whether two wheels of the car ran over plaintiff’s leg. The court had asked the jury to find whether one or more wheels ran over plaintiff’s leg, and, having held that said question was not objectionable because it failed to restrict the inquiry to two wheels, it follows that this assignment must be overruled. The twelfth assignment relates to the same matter, and is also overruled.

The thirteenth, fourteenth, and fifteenth assignments are overruled. The issues refused were argumentative and upon the weight of the testimony in singling out certain portions thereof in a manner which would probably give the jury the impression, that such facts were considered by the court to be entitled to special consideration and weight.-

The sixteenth assignment is based upon the court’s refusal to submit the following special issue:

“Do you believe Dr. Reuss’ treatment of the-plaintiff was skillful, or was unskilled and improper? Answer, indicating which.”

No such issue was made by plaintiff’s pleadings, and the court did not err in refusing to submit the same.

The seventeenth, eighteenth, nineteenth, and twentieth assignments are overruled. The seventeenth complains because the court refused to submit the issue whether-plaintiff would have a working leg; the eighteenth, what period- of time would elapse before the leg would be serviceable; the nineteenth, how long it would be before there would be a complete bony union of the large bone of plaintiff’s leg; the twentieth, whether plaintiff’s leg should be amputated. The defendant’s purpose evidently was to ascertain whether the jury, in fixing the amount of damages, did so upon the theory that plaintiff would be benefited by having an amputation performed, or upon the theory that the injured leg would grow sufficiently strong and useful to make it best not to amputate. Suppose in this case the jury has found that plaintiff would ultimately have a working leg, and that it should not be amputated, what benefit would appellant have derived from the answers. It would be contended before the trial court and this court that the verdict is excessive, and the argument made that the jury found it was unnecessary to amputate the leg. This would still leave the question open as to what extent plaintiff would be better off with the “working leg” than with an artificial leg, and when the testimony is examined it is evident that the jury could have decided in favor of the usefulness, and benefits to be derived, from having the “working leg” by such a slender margin as to make it practically negligible in assessing the amount which would compensate him for his injuries. The jury might have found that, even if the leg would grow strong enough to make it advisable to keep it, still it would not permit the performance of the duties of his former occupation, and that his earning capacity would be diminished just as much as if it had been amputated. Such a finding would have been of no practical benefit to the court or to this court in considering the question whether the verdict is excessive.

But, aside from that proposition, we do not think the court is required to submit issues calling for findings upon subsidiary questions of fact such as those inquired about in this ease. To permit that to be done would cause many mistrials on account of the failure of the jury to agree upon some minor issue closely contested, and the solution of which has little or no effect upon the general issue of the amount to be awarded. We have heretofore condemned the submission of a multitude of questions relating to .evidentiary issues, and need not repeat what was then said. The jury should not be subjected to a cross-examination for the purpose of obtaining their views upon- each item of evidence. The assignments are overruled.

We do not think it can be said that the verdict is so excessive in view of the facts proven as to justify us in holding that it is the result of passion or prejudice. We therefore overrule the twenty-first assignment, wherein it is contended that the verdict is excessive.

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


author: CARL, J.

text:
    KIRBY LUMBER CO. v. HENRY.

    (No. 5484.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    Rehearing Denied June 28, 1915.)
    1. Master and Servant &wkey;>240 — Injury to Servant — Contributory Negligence.
    _ An employé of a lumber company, expressly or impliedly invited to ride on a logging train, sat on the tender while seeing signals to couple cars loaded with logs. A log on the car coupled to the- tender was longer than the car, and when that car was backed into another car to be coupled, the log was pushed against the employs. He did not move from his place nor look up to see what was going on. Held, that he was guilty of contributory negligence as a matter of law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 751-756; Dec. Dig. <&wkey; 240.]
    2. Appeal and Error <&wkey;1175 — Disposition oe Case on Appeal.
    Where a case was fully developed, and plaintiff could not recover, the court, on appeal from a judgment in his favor, will reverse it and render the proper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Doc. Dig. &wkey;> 1175.]
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Action by John Henry against the Kirby Lumber Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Y. A. Collins, D. B. O’Fiel, and F. G. Vaughn, all of Beaumont, for appellee.

       Writ of error pending in Supreme Court.

   CARL, J.

Appellee, John Henry, sued appellant, Kirby Lumber Company, and recovered $5,000 on account of personal injuries sustained by him, as will hereinafter appear.

The substance of the allegations of the petition is well stated by appellant as follows:

“(a) That he was employed by the defendant in the capacity of a tramroad employé, and that it was his duty to clear off trams and keep stumps out of the way thereof for the purpose of the extension of such trams.
“(b) That all employés of the defendant were carried back and forth on the tram train of the defendant.
“(c) That by virtue of his contract under the rules and customs of the defendant company, he became entitled to transportation on defendant’s tram train back and forth from his work.
“(d) That on account of long-established custom, he became entitled to transportation, not only out in the morning and back in the evening, but in the event of his ceasing work before the train which carried the employés in from work in the evening went in, he was entitled to be transported by the defendant’s in-going trains, and in the event no other train was going in at such time, he was entitled to transportation on defendant’s log train.
“(e) That on the day when he was injured, he completed at about the noon hour the work assigned to him for the day, and was told by his foreman to ‘go over and catch that train and go in,’ and that he went over to where one of the defendant’s engines was standing on the trara-road, and those in charge of said engine told him that if he was going in with them, to come and help wood up, whereupon he went around and began to throw wood up into the tender; those in charge of said train promising him that they were going into the mill almost immediately.
“(f) That after finishing wooding up, said engine backed down towards the mill to a switch, the plaintiff sitting on the front of the tender and his position being well known to the agents and employes of the defendant company operating said train, and that when said engine got down to said switch the engineer operating same pulled same out on said switch to couple up a load of logs and carry in to the mill.”
“The plaintiff further alleged that after the first car was coupled up, the brakeman stepped out from between the said train and said tender, and the engineer on said train, without giving plaintiff notice of his intention to move said train, backed up with great force and velocity and ran the loaded car which had just been coupled to the tender against another loaded car with great force and velocity, and striking said other car with great force and impact; that on the car coupled to said tender and next to the one where plaintiff was sitting was a log of greater length than the car, and that when the engineer backed said car into said second car with such great force, said projecting log at the end of the car opposite where plaintiff was sitting struck the logs on the second car with such force that it pushed said projecting log on the first car with, great force and violence back against the end of the tender where plaintiff was sitting;, and without notice or warning to the plaintiff caught his leg between the said tender and the end of the log; and that the position of such projecting log was known to defendant’s agents and servants, or by the use of ordinary care could have been known to them, and the dangers of backing such train with such force.”

Appellant interposed a general demurrer, as well as denying all the material allegations, and pleaded specially contributory negligence and assumed risk on part of appellee. It was also pleaded that Henry was neither required nor invited to take the position he did take on the tender which he was occupying when injured, but, on the contrary, he had been warned of the danger of so doing ; that it was against the rules of the company to do so, of which Henry knew; that he had no duty to perform thereon, and wás not expected, required, invited, or permitted to get upon the tender or ride thereon, and that no purpose of the defendant was being subserved by his being thereon at the time and place and under the circumstances of the accident in question; and that defendant owed him no duty in respect to the matters alleged in the petition.

. At the conclusion of the evidence appellant asked the court to instruct the jury to return a verdict for the defendant, which was refused, and this is made the basis of the first assignment of error.

Appellee says that he had been working for the company about six months at Silsbee and two weeks at Evadale. He testified;

“My work was about four or five miles from the place where I boarded. * * * Every morning they would take all the men out in the car, and if you worked all day they would bring you back in the car, but if you knocked off before night, or they knocked you off, you would top the log cars. Once I knocked off before night, and I went in on the log cars, and there was no objection raised. * * * My work was cutting right of way. * * * There was not-but two of us cutting right of way. * * * There was five or six men working there, but only two of us cutting right of way. * * * There wasn’t but one man that worked directly with me, and his name was Ely White. * * * We got through Saturday. About 12 o’clock. * * We got through about noon, and he [the foreman] told us to take the tools and take them to the lot and catch the log train and go m. I never did ride on that log train before that day. ♦ * * When we got to the lot the log train was not there, we didn’t see it, but the teamsters had quit work and I seen some of them running through the trees, and I told Ely, ‘We had better walk up, that train is going to leave us,’ and he said, ‘It always blows,’ ” etc., “and we went on around the curve, and the engine was there wooding up, and Henry McGill was with me then, and I asked him which way the train was going, and he said he didn’t know, and by that time the fireman looked around and seen me and said, ‘Boys, wood up and I will take you on in,’ and the brakeman said, ‘Yes, everybody wood up,’ and the engineer looked around and said, ‘If you want to go in, you will have to wood up.’ After we got wooded up he said, ‘Let’s go,’ and we went up the main line about a half a mile. * * * The engineer saw me when I got on the train — on the tender of the engine. I had been riding on the same place where I got hurt all the time I had been working there when I was going to and coming from the woods. * * * They would bring us in from the woods on a light shay engine. * * * In going out I always rode on this same place, and they had the same crew. * * * When I took my seat on the tender the engineer and fireman were right there and saw me when I took my seat. * * * Then we started to the mill and went about a mile and one-half, and we had five empty cars behind and they uncoupled them and left the five empties on the main line, and Henry and Ely was on the empty cars. * * * After they cut in on the switch they went down to the loaded cars; don’t know how far they were from the switch, I guess about a mile; it was a long ways down there; it was the first time I had been down there, and it seemed like a mile to me, might not have been quite so far, but they were just going a splitting and I had not got through eating when we got there. When we got to the loaded cars the brakeman came around behind and stood on the apron with me. * ® * When we got to them he coupled the train up. I was about as close to the first ear load of logs as the length of this table (about three feet), and I could see them all right, and the ends of the logs on that car were smooth and shapely and in good order. I could not see the other end of the car because the logs were stacked too high. * * * I could not see any danger from that load of logs, couldn’t see any more danger than I see now.
“When the engineer made the first coupling, he just backed up to the next one to make the second coupling, but he did not ring the bell or blow the whistle. I could not see the brakeman at the time the train began to back up; I looked for him, but couldn’t see him; he got away from me. I wanted some water, and I looked to see how far the loaded car was from us, and I aimed to get up, and just as I started to get up the engine went back, and I caught hold of a piece of iron, and before I could recover the log shoved in and mashed my leg and I jumped off. That log shoved back, I will say, four or five feet before it struck my leg; it just shoved back there, and caught my leg in between it and the tender of the engine. Before it slipped back my leg was four or five feet from the end of the log. The whole bunch of logs that were on the car were that far from me. There wasn’t but one log that shoved back, and that was the one that caught my leg in between it and the tender and mashed it. * * * I have always been a strong, robust nigger, and able to do good work. * * * The car next to me struck the other car with such force that the second car was running down the track when I saw it — it did not make a coupling. * * * I did not know that the train was going to back up and make another coupling; I thought it was going to stand still. * * * When I first got on the tender that day there was five empties hooked to the engine. Henry McGill and Ely White also got on when I did, and two more fellows, white fellows, besides the train crew. Ely got on the flat car, the last car, and Henry was on the first car right facing me. There was no one on the tender back where I was; I was the only one that got on there. I had rode on that tender before that in going out to the woods.
'Tn going out the train would be made up of nothing but empties, taking the men out. I never rode on that tender bef.ore with a loaded log car hooked on to it, we didn’t take logs to the woods, we brought them out of the woods. * * * Henry and Ely stayed there at the switch, I reckon, I left them there. When the engine started down that switch track a mile in the opposite direction from Evádale, I stayed on the tender and went along. I didn’t know where the engine was going, but the engineer told me it would be back there in 15 minutes, but I didn’t know where it was going. * * * I knew that the engine had been uncoupled from the empties, and that Henry and Ely was left, but I didn’t get off the tender and stay with them. * * * When the train backed down that switch I was sitting on the front end of the tender, and when we got to the loaded cars I could see them. * * * I was eating my dinner and could see the cars, but did not pay no special notice to them. * * * I didn’t notice them until after I got hurt. * • * When the tender was backed up to the first log car, I still sat there in the same place, I didn’t move; I wasn’t afraid; the brakeman was standing right side of me, and he reached over me and got the pin and then got down in between fixing to make the coupling. I didn’t get down out of the way, I just sat there and never got up at all. * * * I started to eating when they started to back in on the switch. I was paying attention to what was going on, but there was nothing on the track for me to be looking at. The brakeman rid there with me about 100 yards; he was standing up and he give them the slow signal, the back-up signal, and when we got there he coupled up. * * * The logs on the first loaded log car were higher than my head. * * * I don’t know how high it was from the top of the wood on the tender, but the tender is higher than my head, and then the wood was piled up on it about a foot high. I couldn’t see the engineer or fireman from where I was sitting. * * * In order to see either one of them I would have had to stand up, but I couldn’t see over the top of the wood on the tender by standing up. * * * I stood up when I asked the fireman for a drink of water ; I could see the fireman from where I was standing, but I was not looking over the wood, I was looking around the corner of the tender. * * * The load of logs on the front car whs higher than my head.”

The train crew testified, in substance, that it was customary in handling log cars, loaded, sometimes to butt them; that is to say, if the logs were not far enough over the edge of the car, or not straight, they would hack in and make the coupling so as to butt the car or jar it and thus slip the logs over. All of them, engineer, fireman, and brakeman, testified that they did not know Henry was on the tender, that they had ordered them off before, and that all of them got off, as they thought, and that it was against the rules of the company for them to ride on the tender. They deny telling appellee he could ride in, and say that the company only permitted them to haul employes in on a train provided for that purpose. They admit, however, that they asked appellee and the other negroes to help “wood up,” by which term they meant to load the tender with fuel wood.

Putting the most favorable construction upon appellee’s case, from his standpoint, he got upon the tender in a most dangerous place and sat there eating his dinner when he knew the character of work that was being done by the train crew. Even if it be iconceded that he was invited to ride in, as he says he was, or if that invitation be implied from the custom of permitting the laborers to ride in to the lumber village on- these trains, still he is not relieved of his duty to exercise the ordinary faculties of a reasonable being, and if he had done this, he must necessarily have known that his position was one of extreme peril. He saw the signals given to back up to make the coupling, he says the brakeman came and reached over his legs to make the couplings, and yet he did not move; says he was not afraid, and continued to eat his dinner, not even looking up to see what was going on. If the surroundings did not suggest to him that he was in a place of danger, then we cannot conceive of anything short of an earthquake that would bring into play those faculties every reasonable being is supposed to possess. He evidently prized his dinner more than he did his own safety. And when a man shows such a reckless disregard fdr his own safety, he has no right, either in law or good conscience, to expect others tx> pay the penalty of his folly. No necessity is urged in justification of his position on the tender of that engine, but the undisputed evidence shows that it was not necessary for him to be there. He sought to make the excuse offered-in the case of Tower Lumber Company v. Brandvold, 141 Fed. 920, 73 C. C. A. 153, to the effect that he did not know the danger of the situation. The answer given by the court in that case was as follows:

“The evidence, in our opinion, conclusively shows that he voluntarily and needlessly exposed himself to danger; that he took a position upon the logging car full of obvious peril. Any unusual jolt or mishap, in the nature of things and according to common experience of mankind, would have dislodged him from his perilous position and subjected him to injury. He was a full-grown man and presumably possessed of common intelligence. By the use of his own senses, even the instinct which prompts men of ordinary prudence to self-protection, he should have realized his danger and abandoned his rash and foolhardy action. In these circumstances he cannot excuse his carelessness, as he attempts to do in his evidence, by saying he did not know or appreciate the danger of the situation. Tuttle v. Milwaukee Ry. Co., 122 U. S. 189 [7 Sup. Ct. 1166], 30 L. Ed. 1114; King v. Morgan, 109 Fed. 446 [48 C. C. A. 507]; St. L. Cordage Co. v. Miller, 126 Fed. 495, 513 [61 C. C. A. 477, 63 L. R. A. 551], and cases cited.”

In the case of G., C. & S. F. Ry. Company v. Lovett, 74 S. W. 570, it appeared that the plaintiff was riding upon the footboard of the engine. He was not a passenger, but was a licensee to whom the duty of ordinary care was owing. • The contention was advanced that in riding upon the footboard of the engine he was guilty of contributory negligence as a matter of law. His claim was that he had been thrown from the footboard of the engine by reason of a sudden check, jolt, and jar thereof which caused him to lose his bal-amce and fall and be run over. The Court of Civil Appeals (Judge Neill), in passing upon the question, approved the following doctrine:

“The nature of the accident should be considered; and if, upon such consideration, it appears that the danger or injury from that particular accident was materially increased by the fact that the passenger was in that particular place, instead of the place he should have occupied, he ought not to recover. But if the nature of the accident be such that the danger of injury was not enhanced in consequence of the position occupied by the passenger, or if the accident was of such a nature as was as likely to occur in one position of the train as another, his right to recovery will not be affected by the fact that he was in an improper place.”

After discussing numerous authorities in .support of the ultimate position taken by the court that Lovett was guilty of contributory negligence as a matter of law, the court said:

“The place that plaintiff voluntarily selected to ride placed him in such obvious peril from such an accident as by his own testimony he claims to have encountered, as to constitute contributory negligence, as a matter of law, and should preclude his recovery even though negligence on the part of defendant were shown.”

In the Burns v. Chronister Lumber Co. Case, 87 S. W. 163, where the plaintiff had taken a position on the pilot of an engine, and claimed to have been injured through the negligence of the operatives of the train in, causing a sudden lurch throwing him off, Judge Pleasants, speaking for the court said:

“Plaintiff was 25 years old, and there is no evidence that he was not possessed of ordinary intelligence. The evidence above stated conclusively shows that a proximate cause of plaintiff’s injury was the insecure and dangerous position which he had voluntarily taken upon the engine, and we are of opinion that his taking this position upon the pilot of the engine, under the circumstances shown by the evidence, was an act so opposed to the dictates of ordinary prudence that reasonable minds can reach no other conclusion than that it was negligent. Railway v. Clemmons, 55 Tex. 88 [40 Am. Rep. 799]; Rucker v. Railway, 61 Tex. 499; Wilcox v. Railway [11 Tex. Civ. App. 487], 33 S. W. 379; Railway v. Jones, 95 U. S. 439, 24 L. Ed. 506; Kresanowski v. Railway (C. C.) 18 Fed. 229.”

In the Wilcox Case, referred to by Judge Pleasants, the iilaintiff Was riding upon the footboard in front of the engine. Judge Williams wrote that opinion, and he said, in part:

“But the principles declared in these cases do not authorize a recovery by one injured by the mere negligent running of the engine when, at the time of the injury, he is, without right to be there, in a situation where his mere presence is negligence; and such, we think, was appellant’s situation when he was hurt.”

It is unnecessary for us to consume space in quoting further what courts have said. The following authorities amply sustain this view, and the assignment is sustained: B. P. Ry. Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506; Ft. Worth, etc., Ry. Co. v. Anderson, 118 S. W. 1113; K. C., etc., Ry. Co. v. Williford, 115 Tenn. 108, 88 S. W. 179; S. L. & S. W. Ry. Co. v. Rice, 9 Tex. Civ. App. 509, 29 S. W. 525; T. & P. Ry. Co. v. Boyd, 6 Tex. Civ. App. 205, 24 S. W. 1086; St. L. & S. F. Ry. Co. v. Schumacher, 152 U. S. 78, 14 Sup. Ct. 479, 38 L. Ed. 361; Tower Lumber Co. v. Brandvold, 141 Fed. 920, 73 C. C. A. 153; Williams v. Choctaw, etc., Ry. Co., 149 Fed. 105, 79 C. C. A. 146; St. L., etc., Ry. Co. v. Conway, 156 Fed. 234, 86 C. C. A. 1; Radley v. Columbia, etc., Ry. Co., 44 Or. 332, 75 Pac. 213, 1 Ann. Cas. 447; Glover v. Scotten, 82 Mich. 369, 46 N. W. 936; Labatt, Master & Servant (2d Ed.) vol. 3, § 1250, subd. 7, and eases there cited.

Since the case was fully developed and the plaintiff under the facts could not recover, the judgment of the lower court will be reversed, and judgment is here rendered that appellee recover nothing by this suit.

Reversed and rendered.
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