source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    TRINITY & B. V. RY. CO. v. GEARY.
    (No. 344.)
    (Court of Civil Appeals of Texas. El Paso.
    June 13, 1914.
    Rehearing Denied July 2, 1914.)
    1. Pleading (§ 53) — Petition — Separate Counts.
    The cause of action set up in two counts of a petition for injury to an employé from being thrown from a car by the sudden stopping of the train, the one averring a specific act of negligence in the uncoupling of the cars by an employé without turning the angle cocks and confining the air, whereby the brakes were suddenly applied and the car brought to a sudden and abrupt stop, the other containing a general allegation of negligence in the operation of handling and equipment of the train, is the same.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 11A-117; Dec. Dig. § 53.]
    2. Trial (§ 330) — Verdict — Sufficiency — Different Counts for Same Cause of Action.
    The counts setting up the same cause of action, but one alleging a specific act of negligence, and the other containing a general allegation of negligence, the verdict in a servant’s action for injury, from sudden application of brakes, causing the car to suddenly stop, throwing plaintiff. “We * * * find plaintiff * * * entitled to recover under his first and second counts,” and assessing the damages, is, in effect, a general verdict that the sudden application of brakes was due to defendant’s negligence, with a divei'sity of opinion as to the particular causative agency, and is sufficient; unanimity of opinion as to the particular act of negligence causing the sudden application being unnecessary.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 777-781% ; Dec. Dig. § 330.]
    3. Trial (§ 296) —Instructions — Submission of Negligence and Contributory Negligence.
    A paragraph of a charge which is an affirmative presentation and submission of the issue of negligence in a respect charged in count 3 of the petition, and which tells the jury that if they believe there was want of ordinary care in certain respects, which was the proximate cause of plaintiff’s injury, to find for him under said count 3, is not objectionable because making no mention of contributory negligence, properly submitted in another paragraph of the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Master and Servant (§ 278)— Injury to Servant — Negligence — Res Ipsa Loqui-tur.
    The instant stop of a train, under the management of the company’s servant, while going at a speed of several miles an hour not being an occurrence in the ordinary course of things, if those having its control use proper care in its operation and with respect to equipment, its occurrence, in the absence of any explanation, affords reasonable evidence, in a servant’s action for injury therefrom, that such stop was due to want of ordinary care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    5. Master and Servant (§ 286) — Injury to Servant — Negligence.
    The affirmative evidence of a circumstantial nature, in an action for injury to an employs on a gravel train, from the instant stop of it, from sudden application of the air brake, through a breaking of the air hose, held sufficient, independent of the rule of res ipsa lo-quitur, for submission of the issue of negligence in improper operation or equipment of the train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    6. Damages (§ 172) —Personal Injury — Earning Capacity — Evidence.
    As bearing on the earning capacity and loss thereof of plaintiff in an action for personal injury evidence of his profits from the boarding of the section crew, a perquisite of his position of section foreman, is admissible, especially where he required no substantial capital therein.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 172.]
    7. Master and Servant (§ 258) — Action— Petition--General Allegation of Negligence.
    A general allegation of negligence in the petition in a servant’s action for injury is permissible, where the doctrine of res ipsa loquitur is applicable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836-; Dec. Dig. § 258.]
    8.Appeal and Error (§ 1099) — Law of the Case-H-Iolding on Prior Appeal.
    The holding on appeal that a general allegation of negligence in the petition is permissible is the law of the case on a subsequent appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.]
    9. Appeal and Error (§ 1170) — Harmless Error — Presumption.
    Courts of Civil Appeals rule 62a (149 S. W. x) having the effect of abolishing presumption of injury from error, any error in overruling'an exception to a general allegation of negligence, no injury therefrom being apparent, is not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4006, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    10. Damages (§ 132) — Personal Injury — Excessive Verdict. ■
    In case of injury to a man 49 years old, strong, healthy, and industrious, previously earning $100 to $125 a month, held a verdict of $20,000 was not excessive, under the evidence as to his right arm being permanently paralyzed, existence of a condition requiring it to be always tightly bandaged, the need of assistance in taking care of himself, and nursing and medical attention for the rest of his life, and his health and nervous system being undermined.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Harris County; R. E. Crawford, Special Judge.
    Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff:, and defendant
    Affirmed.
    See, also, 144 S. W. 1045.
    N. H. Lassiter, of Ft. Worth, Andrews, Streetman, Burns & Logue, W. L. Cook, and Coke K. Burns, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.

       For other cases see same topic and section NUMBER in Deu. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Appellee sued for damages resulting from personal injuries sustained November 23, 1909, while in the employment of defendant as a section foreman and engaged in hauling- and unloading gravel from a train on appellant’s line of railroad. This is the second appeal; the former opinion appearing in 144 S. W. 1045.

The petition contains three counts, the second of which need not be noticed, as it was not submitted to the jury. The first and third counts are in precisely the same language, except as respects the allegation of negligence. In both counts it is averred that on November 23, 1909, plaintiff was in the employment of the defendant, serving it as a section foreman, and, so serving it, he was in the ordinary discharge of the duties of his service, riding on a gravel train, which was running between six and ten miles an hour, and which consisted of a long string of flat cars, just unloaded of gravel, with engine thereof facing north, but at the south end of tlie train, and with the caboose at the north end; that while he'was so engaged in riding, standing about the center of a flat car, or, at any rate, thereon, where he had a right to be (which car was the second C{ir from the caboose at the north end of said train), the brakes were, unexpectedly to him, suddenly applied, and the car suddenly and abruptly stopped, as would be in an instantly applied emergency, whereby he was thrown northward about 15 feet to the end of the car, and caused to fall onto and against the car and from the car to the ground, whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage. The allegation of negligence in the first count reads:

“That one of defendant’s employés engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid; which act on the part of defendant’s said employé in so handling said car was negligence towards plaintiif, and a proximate cause of the injuries suffered by him as aforesaid; that the defendant sometimes claims that the sudden application of the brakes and sudden and abrupt stop of the car, as aforesaid, were solely on account of the bursting of the air hose, but, if so, such resulted from the separation of the cars, duetto defendant’s negligence as aforesaid, or, if not, to a defect in the hose due to defendant’s negligence in failing to use ordinary care in the way of insnection to maintain the same in a reasonably safe condition.”

The allegation of negligence in the third count reads:

“That aforesaid' train, so causing injury to plaintiff as aforesaid, including its operation, handling, and equipment, was under the exclusive management and control of the defendant or its employés other than. plaintiff, and the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care, and plaintiff’s said injuries so suffered on .account of said brakes being suddenly applied so as to produce said sudden and abrupt stop of the car were proximately caused by negligence of the defendant or of its agents or employés acting for it within the scope of their employment in that behalf, due to a want of ordinary care either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped, but the particular or particulars of which negligence are unknown to plaintiff, and he cannot more definitely or with greater certainty specify such; that the defendant sometimes claims that the sudden application of the brakes and sudden and abrupt stop of the car, as aforesaid, were solely on account of the bursting of the air hose, but, if so, such resulted from the separation of the cars due to defendant’s negligence as aforesaid, or if not, to a defect in the hose due to defendant’s negligence in failing to use ordinary care in the way of inspection to maintain the same in a reasonably safe condition.”

Defendant answered by general denial and ple'a of assumed risk and contributory negligence.

Upon the issues raised by the pleadings, the jury was instructed:

“IV. If you believe, from the evidence, that one of defendant’s employés engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the air, and that thereby the cars were caused to separate and to burst or part the air hose and to apply tbe air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding suddenly and abruptly, and that by reason thereof plaintiff was thrown and caused to fall and suffer injuries substantially in the manner alleged, and if you further believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then find for the plaintiff under the first cuunt of his petition, and so say by your verdict.
“V. If you do not believe, from a preponderance of the evidence, that on the occasion in question the coupling pin was pulled without the angle cocks being turned, or if you do not believe that, though same was pulled, if it was, without the angle cocks being turned, such act was negligence toward the plaintiff, or if you do not believe that such act, if done, and if same was negligence, was an act from which a person of ordinary prudence under the existing circumstances ought reasonably to have anticipated injury to a person riding -upon said car in the position you may find plaintiff was at the time of the accident, then, in such event, your verdict should be for defendant as concerns the first count of plaintiff’s petition.
“VI. If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly slopped, ’and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in tbe manner alleged, and if you further believe that such an accident does not in the ordinary course of things happen if those who have the management of the train, including its operatipn and equipment, use reasonable care, and if you> further believe that such operation of the cars and application Of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or em-ployés acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under tbe third count of his petition, and so say by your verdict.
“You will not separately consider the second count of the petition, since, so far as sustained by the court, it is tbe same as the third.
“VII. If you do not believe from a preponderance of the evidence that the cars separated and that the air hose was thereby bursted or parted, and that by such means the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, or if you do not believe that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially as alleged, or if you do not believe that such sudden and abrupt stop of the car, if any, was due to a want of ordinary care on the part of the defendant or of any-of its agents or employés acting within the scope of their employment, or if you do not believe that injury to plaintiff, or any like injury, could, in the exercise of ordinary care, reasonably have been anticipated as a natural and probable consequence of such sudden and abrupt stop, if any, then find for the defendant, and so say by your verdict.
“VÍII. If you find plaintiff entitled to recover under the first count, you need not consider his right to recover or not under the third count.
“If you do not find plaintiff entitled to recover under the first count, then, unless you believe, from a preponderance of the evidence, that some defect in the train existed, and that defendant or its agents or employés knew thereof, or,' in the exercise of ordinary care, should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge, or negligent lack of knowledge, on the part of the defendant, was a proximate cause of alleged injuries to plaintiff, then you cannot find for plaintiff under the third count under the claim of negligent equipment of the train, and in that event you will decide whether or not plaintiff is entitled to recover under said third count under the claim of negligent operation' of the train, as before submitted to you.
“IX. An employé is held in law to assume the ordinary risks incident to his employment, but risks arising from the negligence of the defendant or imputable to it are not deemed in law to be ordinary risks incident to the employment.
“If, in view of the above explanation, you believe from the evidence that plaintiff sustained alleged injuries by reason of a sudden and abrupt stop of the car upon which he was r'iding, and that the danger, if any, from said sudden and abrupt slop, if such happened, was a risk ordinarily incident to the service in which plaintiff was engaged, or, in other words, was an ordinary risk incident to his employment, then find for the defendant.
“However, if you believe, from the evidence, that the sudden and abrupt stop of the car on the occasion in question, if such happened, arose from and was due to negligence, if any, on the part of the defendant, as submitted to you, then the danger, if any, of such sudden and abrupt stop was not assumed by plaintiff as an ordinary risk incident to his employment.
“X. Contributory negligence means such act or omission on the part of a plaintiff as an ordinarily prudent person would not do or suffer under the same or similar circumstances, which, concurring with a negligent act or omission of a defendant, becomes a proximate cause of an injury.
“If you believe from the evidence that plaintiff, after being specially warned not to stand too near the end of the car on which he was riding, if he was, or, independent of any such warning, failed to assume or take such position on the car, or to so conduct himself while thereon, as a person of ordinary care would have done under the same or similar circumstances to avoid such jerks, jars, or stops as were ordinarily incident to, or connected with, the operation and movement of the train, or as he knew of or must necessarily have known of, and that he thereby contributed to the injuries of which he complains, then you will diminish the damages, if you find plaintiff entitled to recover such, in proportion to the amount of negligence attributable to plaintiff.
“XI. If you do not believe, from the evidence, that plaintiff was guilty of contributory negligence, as submitted to you in the next preceding paragx-aph, but believe from the evidence that he was ac'ting at the time with such care as an ordinarily prudent person in his situation would have exercised under the same or similar circumstances, then you will not, if you find plaintiff entitled to recover damages, reduce such damages anything on account of contributory negligence. -
“XII. If your verdict is in favor of the plaintiff, then you will, in view of and subject to the foregoing instructions assess his damages at such sum as you believe, from the evidence, to be "fair and just compensation for the injuries alleged and proved to have been suffered by the plaintiff on ’the occasion in question, if any, taking into consideration, if shown by the evidence to the natural and probable result of such injuries, the following items, to wit:
“(1) Mental anguish and physical suffering to him therefrom, if any, including such as he will in reasonable probability suffer therefrom in the future, if any.
“(2) Also the reasonable value of time lost to him from such injuries down to the trial, if any.
“(3) Also the reasonable value .of past necessary nursing and medical attention received by him on account of such injuries prior to the trial, if any, including only such medical treatment as he received from Dr. Lunn, if any.
“(4) Also the reasonable value, if paid now, of such necessary nursing and medical attention -as he will be reasonably certain to require on account of such injuries in the future, if any.
“(5) Also such sum, if paid now, as will be fair and reasonable compensation to him for his diminished capacity, on account of such injuries, to labor and earn money beyond the trial in the future, if any.
“You will not consider any testimony concerning the necessity for massage treatment in the future; such is not alleged as an element of damage.
“The burden remains upon plaintiff to establish by a preponderance of the evidence, the measure and extent of his damages, if any, including the facts involved in that inquiry as submitted to you by the court.
“XIII. If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count, the form of your verdict will be: ‘We, the jury, find for plaintiff, under his first count, and assess his damages at $- (stating the amount).’
“If your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and do find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find, for plaintiff under his third count, and assess his damages at $- (stating the amount).’
“If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under his third count, _ the form of your verdict will be: ‘We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at '$- (stating the amount).’
“If your verdict is in favor of the defendant, its form will be: ‘We, the jury, find for the defendant.’ ”

The cause of action set up in the two counts is the same, the specific act of negligence averred in the first count being the uncoupling of the cars by an employé of the company without turning the angle cocks and confining the air, whereby the brakes were suddenly applied and the car brought to a sudden and abrupt stop; whereas in the third count there is a general allegation of negligence in the operation, handling and equipment of the train, which is permissible where the doctrine of res ipsa loquitur is, applicable. Ordinarily it is proper and the better practice to combine in one count the various acts of negligence relied upon, but had plaintiff here in a single count alleged negligence generally, and then set out the specific act of uncoupling the cars without turning the angle cocks and confining the air, or vice versa, a rule of pleading would have limited his right of recovery to the specific act. Ry. Co. v. De Ham, 93 Tex. 74, 53 S. W. 375. And he would, in such event, have been deprived of the benefit of the res ipsa loquitur doctrine otherwise accorded him. Ry. Co. v. Brymer, 124 S. W. 1009. Clearly plaintiff was entitled to recover upon either phase of the evidence, as it might develop, and, in order to avail himself of this right and meet the rule of pleading indicated, it was necessary that he set up his cause of action in two separate counts.

That the cause of action was the same in both counts is susceptible of ready and easy demonstration. In the third count the sudden application of the brakes producing the sudden and abrupt stop of car is alleged to have resulted from negligence “either in the operation or handling or in the equipment” of the train. In the first count it is alleged to have resulted from negligence of an employé in uncoupling the “ears of said train without turning the angle cocks and confining the air.” Each count contains the same alternative allegation of negligence with respect to equipment.

Now, would any one assert that the act of uncoupling the cars without turning the angle cocks and confining the air is not an act of “operation or handling” and embraced within the general allegation of the third count? The allegations relate to one and the same matter, one being specific and the other general. Thus it must be conceded the specific allegation in the first count is embraced within the general allegation contained in the third, and that they state one and the same cause of action. Distinct or inconsistent causes of action may not properly be set up in the same count. Townes on Pleading (2d Ed.) pp. 477, 478. If in one count plaintiff had made his general allegation of negligence and his allegation of the specific act in the very same language which he used in his separate counts, it would hardly be contended that it was improper for him to do so, or that distinct or inconsistent causes of action were set up; and the circumstance that two counts are employed to make both grounds available does not change the identity of the cause of action. In almost every personal injury case more than one act of negligence is alleged in a single count, but the various specifications of the negligence relied upon are not regarded as separate and distinct causes of action. They may be separate and distinct integral parts of a complete whole,. but not, of themselves alone, a complete cause of action. So the allegation of the specific act of negligence in the first count of plaintiff’s petition and the general one in the third are to be regarded as relating to one and the same cause of action, upon either of which a complete cause of action may rest as a base, but necessary to be set up in two counts, in view of the rule of pleading, noted, in order that plaintiff might avail himself of the right of recovery upon either phase of the evidence, as it might develop. That he is thus entitled to present his cause of action is quite clear. Townes on Pleading (2d Ed.) pp. 477, 478.

These preliminary observations are made to the end that a proper understanding and disposition may be made of a question confronting us upon the threshold of this ease, relative to the sufficiency and legality of the verdict rendered by the jury which reads:

“We, the jury, find plaintiff, Morris Geary, entitled to recover under his first and third counts, and assess his damages at $20,000.00 (twenty thousand dollars).”

The verdict is to he construed in connection with the instructions. Garrett v. Robinson, 93 Tex. 413, 55 S. W. 564. Applying this rule, it is apparent some of the jurors based their finding upon the specific act of negligence alleged in the first count, whereas other jurors rejected this theory, and, under the res ipsa loquitur rule, found that the sudden application of the brakes, producing the sudden and abrupt stop of the car, was due to some other act of negligence in the operation and handling of the train, or in respect to equipment.

In effect, it was a general verdict in plaintiff’s favor that the sudden application of the brakes, causing the car to suddenly and abruptly stop, was due to' defendant’s negligence, but with a diversity of opinion as to the particular causative agency.

The basic idea upon which rests the various propositions subjoined to appellant’s first four assignments questioning the legality of the verdict is that unanimity of opinion was necessary, not only of the essential, ultimate fact of negligence in the sudden stop of the car, but of the particular negligent act causing it, as well. In our opinion, unanimity is necessary only of the essential ultimate fact of negligence whereby the car was brought to a sudden and abrupt stop. It is wholly immaterial that this collective unanimous finding may in part have rested -upon the belief of certain jurors that the causative agency was the act of an employs in uncoupling the cars without turning the angle cocks and confining the air and the belief of others that it was some other negligent act in respect to operation or equipment. It would seem, if the jury unanimously determined the car came to a sudden and abrupt stop through the negligent act of the defendant, this being the basic fact upon which the action rests, this should be all that is necessary, and unanimity should not be essential as to the varying details and phases of the evidence offered to support the same. A simple illustration will perhaps illustrate the absurd consequence to which a contrary hold would logically and inevitably lead: A. brings suit against a railway company upon a personal injury claim, bis injury baying been received in the derailment of a train upon which be was a passenger. It was alleged the derailment was due to tbe company’s negligence: (a) In running at an excessive speed; (b) in a defective track and roadbed. Now, could it be contended that tbe rendition of a general verdict in plaintiff’s favor in sucb a case would be improper? Certainly not. Yet, under such a verdict, tbe jurors might have been divided in their view as to the causative agency. Now, if unanimity of decision as to these details be essential, it of necessity follows that a general verdict would not be proper and special findings upon tbe same be required, to tbe end that defendant’s rights be adequately protected and a judgment be not rendered against it upon a verdict lacking in essential unanimity. We apprehend it would not be contended that a general verdict for plaintiff in sucb a case is improper or that defendant has any right to additional findings. Since it would have no right to require findings upon such details, it follows they are immaterial issues and unanimity of opinion in respect thereto nonessential.

The, instant case is a perfect parallel to the one supposed. The uncoupling of the cars without turning the angle cocks and confining the air, as shown, was improper operation or handling of the train and embraced within the general allegation of negligence in the third count. If the court below, as it might have done, under the third count, had given a general instruction to find in plaintiff’s favor, if the jury found the sudden application of brakes and stop of car was proximately due to tbe negligence of defendant in operation or handling of train, -who would suppose a verdict in plaintiff’s favor, returned under such an instruction, could be invalidated by showing that, while concurring in the finding as to negligent operation, some of the jury had thought the negligent causative act was the failure to turn angle cocks and others had believed it was some other operative act?

Since unanimity of opinion, as respects the causative negligent agency producing the sudden and abrupt stop of the car, is regarded as nonessential, the verdict is then but a general one in plaintiff’s favor, and, as such, possesses the requisite unanimity.

That a general verdict for plaintiff is proper upon a petition containing several counts, but embracing only one cause of action, see Ency. Pl. & Pr. 850-852, and note at 851.

Nothing could more perfectly demonstrate, on the question of unanimity, the nonessential character of the detail as to the particular causative agency of the sudden and abrupt stop of car than the rule, well established, in a negligence case, that if the counts state the same right of action, varying only as to the allegations of negligence, so as to meet' the possible varying phases of the evidence, a general verdict is proper. Lancaster v. Ins. Co., 92 Mo. 460, 5 S. W. 23, 1 Am. St. Rep. 739; Leu v. St. Louis Transit Co., 110 Mo. App. 458, 85 S. W. 137; Parker v. Ry. Co., 84 Vt. 329, 79 Atl. 865; Murray v. Ins. Co., 96 N. Y. 614, 48 Am. Rep. 658.

The Parker Case, supra, was a personal injury case by a passenger. In this case it was said:

“At the close of all the evidence the defendant moved for a separate verdict on each count, because the evidence failed to establish the allegations of each; because the evidence did not establish negligence on the part of 'the defendant in any of the respects complained of in any; and because on all the evidence the plaintiff was not entitled to recover. This motion was properly overruled. Such a practice does not obtain in this state, and ought not to obtain. It is to be noticed that the counts are not based upon separate and distinct causes of action, but upon the same cause of action, though varied in statement to meet the possible exigencies of the ease that the evidence might present, and so the issue joined on each count is not a separate and distinct issue, but the same issue that is joined on the other counts. Therefore the practice asked for, if adopted, might result, and often would result, in a verdict each way on a single, indivisible issue and cause of action, whereas, there should be but one verdict, whichever way it is, as there is but one issue.”

Murray v. Ins. Co., supra, was an action upon insurance policy defended upon the ground that deceased died in or in consequence of a violation of law. It appeared the jury agreed on the ultimate fact that the insured died because of a violation of law, but differed as to the minor facts inducing that conclusion; some reaching the conclusion from one minor fact or cause, some from another. It was held:

“The point to be determined by the jury was whether the insured died in, or in consequence of, a violation of law. The jury found for the defendant upon this issue, and as was said by Brown, J., in his very satisfactory opinion: ‘The jury might well have united in that conclusion, although some should think the shooting accidental, and others intentional, some that it was done in self-defense, others that it was done in the heat of passion, some that the assured had abandoned the combat, others that he had turned to renew the assault upon Berdell with his pistol.’ It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and a part upon the other.”

In case of verdict upon special issues, it is of course true that the defendant is entitled to have the jury pass upon every contested fact material to the legal conclusion in plaintiff’s favor; that is, on all the ultimate facts upon which bis right to recover depends in law. To refuse the submission of a material fact of that character must necessarily be error. The immateriality of a finding as to the particular causative agency of the sudden application of brakes and stop of car is shown by Ry. Co. v. Olis, 192 Ill. 514, 61 N. E. 459; Chicago, etc., v. Nelson, 197 Ill. 334, 64 N. E. 369; Morbey v. Ry. Co., 116 Iowa, 84, 89 N. W. 105; Peer v. Ryan, 54 Mich. 224, 19 N. W. 961; Ry. Co. v. Scheffner, 209 Ill. 9, 70 N. E. 619; Montayne v. Northern, etc., 127 Wis. 22, 105 N. W. 1043.

Railway Co. v. Olis, supra, was an action against a street railway for personal injuries, and a special interrogatory as to whether the defendant’s motorman was ringing his gong on approaching the crossing was properly refused, as calling for a finding upon a mere evidentiary and noncontrolling question of fact.

In Chicago, etc., v. Nelson, supra, error was assigned to the refusal to submit this question:

“Was the defendant guilty of negligence causing the injury in this case, and, if so, in what did such negligence consist?”

Held:

“This special interrogatory was properly refused, for it was not restricted to those ultimate facts upon which the rights of the parties directly depended, but sought an opinion on probative facts.”

In Morbey v. C. & N. W. Ry. Co., 116 Iowa, 84, 89 N. W. 105, the question, “If you find for the plaintiff, state upon what negligence you base such finding, and what employ© or employes committed it,” was properly refused, because it could have been answered without touching any issue in the case.

In Peer v. Ryan, 54 Mich. 224, 19 N. W. 961, it was held that several counts requiring a jury in an action of negligence to specify what defendant did or omitted were erroneous, because, if the jury was satisfied that he was wanting in care, plaintiff was entitled to their general verdict.

In Montayne v. Northern Electrical Mfg. Co., 127 Wis. 22, 105 N. W. 1043, in an action for injuries received in operating a machine, the refusal to submit questions covering different phases of the evidence concerning the nature of the defects, if the machine was found defective in construction, was proper, because they required the jury, in answering the general questions respecting the alleged negligence of defendant, to state the specific grounds of their findings.

Of the adversely cited cases, the only ones of any apparent pertinency are Biggs v. Barry, Fed. Cas. No. 1,402; Schofield v. Miltmore, 74 Wis. 194, 42 N. W. 214; Clark’s Adm’x v. Ry. Co., 36 Mo. 202; Parrott v. Thacher, 26 Mass. [9 Pick.] 426. All of these are plainly referable to the rule of practice that a general verdict in plaintiff’s favor should not be allowed upon a petition setting up two distinct or inconsistent grounds or causes of action. 22 Ency. Pl. & Pr. 849, 850, and cases cited. Lancaster v. Ins. Co., supra. The distinction is plain and manifest, for there must be' unanimity as to any one complete cause of action before plaintiff is entitled to a verdict, and a general verdict in such a case might be rendered with this essential concurrence lacking. But, when, the counts set up the same causé of action, and not separate, distinct, or inconsistent grounds, a general verdict is proper, for the manifest reason that concurrence of the jury is not required as to minor facts or details of difference. The authorities all seem to recognize the distinction. Lancaster v. Ins. Co., supra; Parker v. Ry. Co., supra; Leu v. St. Louis Transit Co., supra; Illinois, etc., v. Linstroth, etc., 112 Fed. 737, 50 C. C. A. 504; Ranney v. Bader, 48 Mo. 539; Brady v. Connelly, 52 Mo. 19; Long v. Armsby Co., 43 Mo. App. 253.

We must therefore conclude the verdict in this case sufficient as a general one, and a finding as to the particular causative agency of the sudden stop of car nonessential, and not a proper issue to submit. If a unanimous finding in respect thereto had been made it would have been mere surplusage.

In cases where a general verdict may properly be returned and is so submitted, the practice is not to be commended of a submission in such a manner as to require inferential findings upon nonessential and immaterial details. Juries find sufficient difficulty in concurring unanimously upon controlling issues, and no more should be required of them. In the case at bar they should have been permitted to return a general verdict, and it was immaterial upon which count it was based. Further or more specific findings should not have been required. ,

The fifth assignment complains of the sixth paragraph of the charge. The first two propositions thereunder confuse the plea of contributory negligence with the negligence of defendant. This paragraph of the charge was an affirmative presentation and submission of the issue of negligence vel non upon defendant’s part with respect to operation or equipment, independent of pulling pin without turning angle cocks.

Plaintiff’s position upon the car and the question of contributory negligence on his part with respect thereto are separate and distinct from an inference and finding of negligence upon part of defendant in relation to the separation of ears producing the sudden application of air and stop of car. The want of causal connection between the issue of contributory negligence and the inference of negligence upon defendant’s part with respect to operation or equipment is so patent that further comment in regard thereto would be a matter of supererogation. Nevertheless it may be noted the issue of contributory negligence is submitted in the tenth paragraph in a manner to which no exception is taken.

The additional propositions under the fifth assignment will be considered in connection with the sixth and seventh assignments, since they all relate to the same alleged ground of error, viz., that the court erred in submitting the doctrine of res ipsa loquitur pleaded in .the third count, the contention being tbat, independent of tbe act of tbe employé in pulling tbe coupling pin without turning angle cocks, there was no evidence either of improper operation or equipment of cars to warrant an inference of negligence.

At tbe time of the accident plaintiff was in the employ of defendant, serving as a section foreman, and, in tbe ordinary discharge of bis duties, was riding on a gravel train, running between eight and ten miles an hour. Tbe train consisted of a string of flat cars which had just been unloaded of gravel. The engine was facing north,, at the south end of the train, and with the caboose at the north end. The train was moving in a northerly direction. Plaintiff was standing upon a flat car while the train was approaching Rosslyn switch, where some of the cars were to be cut out and left. Upon approaching the switch the car just north of the one upon which plaintiff was riding separated from the rest of the train, causing a separation or bursting of the connecting air hose, the result of which was to apply the air as in ease of emergency, producing a sudden and abrupt stop of the train, throwing plaintiff northward and off the ear. The engineer testified he slowed his train with a service (slight) application of air. When this application was made it appears the'uncoupled cars separated,- causing a separation or bursting of the air hose, the result of which was to apply instantly the air as in case of emergency and instantly stop the train.

To the claim of error in the submission of the issue it may be first answered that, independent of any affirmative evidence of improper operation or equipment, the circumstances attending the accident bring it clearly within the rule of res ipsa.

The train was under the management of defendant’s servants, and the instant stop of a train is not an occurrence in the ordinary course of things, if those who have the control thereof use proper care in its operation and with respect to equipment. In such ease, in the absence of any explanation by the defendant, it affords, reasonable evidence that the instant stop was due to a want of ordinary care. Ry. Co. v. Geary, 144 S. W. 1045; Ry. Co. v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1037 (W. of E. Ref.); Ry. Co. v. Young, 45 Tex. Civ. App. 430, 100 S. W. 993; Washington v. Ry. Co., 90 Tex. 314, 38 S. W. 764; McCray v. Ry. Co., 89 Tex. 168, 34 S. W. 95; Ry. Co. v. Fales, 33 Tex. Civ. App. 457, 77 S. W. 234; Ry. Co. v. Wood (Civ. App.) 63 S. W. 164; 1 Shearman & Redfield on Negligence (6th Ed.) §§ 58, 58b, 59; Scott v. London, etc., 3 H. & C. 596.

Chief Justice Erie, in Scott v. London, etc., supra, the leading case, states the rule in language repeatedly approved by our courts, as follows:

“There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or Ms servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

Of the adversely cited cases none are in point. The essentials of res ipsa were not present in any of them, and they may be - readily distinguished by elementary law.

To the claim of error in the submission of the issue noted under the third count it may be further and conclusively answered that there was affirmative evidence warranting an inference of negligence based on either improper operation or improper equipment.

The plaintiff’s witness J. E. Haskell, an expert of wide experience in train equipment, testified to the effect that, under the circumstances of plaintiff’s injury, the occurrence in question was unusual, and that the coming apart of the ears, the uncoupling, if the train was properly handled, could be produced by ‘.‘nothing else in the world but a defective coupler or a defective car, or something the matter with that equipment; there would be a defect.” This witness explained that the uncoupling of the cars would necessarily burst or part the air hose, if unseparated, and instantly apply the brakes and produce the sudden and abrupt stop testified about by plaintiff, and that this same result would be produced if the air hose was separated, but the air had not been confined by turning the angle cock.

Haskell further testified:

“That if the cars in question had been lying at a switch track for from ten days to two weeks in the weather, uninspected, and were taken from there and put onto this train and put to work, the tendency that that exposure would have on them would be- to make them defective; all such conditions as that -have a tendency to deteriorate and to work bad with the brakes, to make them defective. It has been proven by experience the world over that by the cars standing still or idle on a switch track they go to the bad, or get in bad, as the boys say, quicker than everyday service. The packing leather dries out in the cylinders, and the triple valve becomes gummed and dry. The tendency is in the part: 'ulars, as I have stated, to render same defective, unsound, and in bad order.”

Tbe defendant witness and employé W. E. Wise, a railz-oad operative of experience, testified tbat when an engine is bandied in tbe customary and usual way, and there is no defect in tbe appliances, tbe cars are not intended to uncouple without something being done to them, and they will not of themselves uncouple where the ears are handled in the usual and ordinary way, and when all the equipment is free of defects they will not uncouple then of themselves.

The defendant’s witness and employé Ed. Looney, another railroad operative of experience, testified that an' engineer could so handle his engine as to cause the train to part. He further testified:

“It is true that there are defects in the machinery connected with the car that will sometimes cause them to uncouple; if there are de-feets in the car, or it is exposed to the weather, it might cause it. Defects do cause cars to come uncoupled about their coupling apparatus. They are not intended to uncouple of themselves when, they are made up, not that 1 know of. If they were worked in the usual and customary way, as far as I know, they won’t come uncoupled.”

Morris Geary, the plaintiff, testified that the cars which uncoupled were, on the morning in question, gotten from the side track at Rosslyn, loaded, and had been there for two or three weeks or more, and during that time said ears were not under shed; they were exposed to the weather; his section house was at that siding, and he did not see anybody inspect the cars, and that there were no employes down the^e for inspection purposes as far as he knew; that it was not within the line of his duty to inspect the cars, and he had nothing to do with inspecting them.

The witness further testified:

“The usual position for a man riding on a car is to stand; it is to stand on a car of a work train. I said I was standing about the middle of the car, and was facing north. * * * The stop on the occasion of my injury was made that quick (snaps fingers). I said it stopped instantaneously, and as it did so, of course, I was thrown; I was thrown clear off; * * * thrown north. * * * Before the time I was injured, I had been engaged in railroad service over 30 years. * * * In my experience in the railroad service I had not, before the time I was injured, encountered an abrupt stop such as on the day I was hurt, not personally, not on a work train. I had ridden many times on trains similar to this; when I was roadmaster I rode every day; some days as much as from 140 to 200 miles a day.”

The witness testified that as he lay on the ground after his fall he saw the cars were standing apart, uncoupled, and the air hose had burst in two; was pulled apart — clear apart.

The defendant’s testimony was in conflict with Geary’s as to how long the cars had been on the side track at Rosslyn, exposed to the weather, but its testimony conceded that the cars had been on said siding, exposed to the weather, for at least four days before the accident, uninspected.

Geary further testified that as the train approached Rosslyn the purpose of the train crew was to switch off there certain foreign ears, including the ear he was riding, but not the caboose or the car between it and. the one he was riding; that, to do this, the train crew adopted the method of cutting off the caboose and the car next to it, while the train was in motion, and letting them run down the main track of their own momentum, and then, after putting in the foreign cars on the siding, for the train to return, couple onto the caboose and other car, and then proceed northward on its way; that, to this end, the brakeman, Savage, standing on the car next to him, gave a slow-down signal, and immediately after the accident happened.

Geary, after testifying to the slow-down signal as given by Savage, further testified:

“When two cars are coupled together (meaning the airline coupling) and the engineer slows down, those cars will come apart; * * * when those cars come apart, and if the hose does not come uncoupled, it (the air hose) will burst; it will tear the hose in two; * * * either part or burst.”

In addition to the above, there was direct evidence of improper handling, in that plaintiff, Geary, testified, in effect, that the brakeman, Savage, one of defendant’s train operatives, immediately after he gave the slowdown signal, reached over where the coupling was and raised up as a man would in pulling the pin, but that he did not uncouple the air line or turn the angle cock so as to confine the air, and that then, almost instantly, the sudden and abrupt stop came. Savage was not called by the defendant to testify.

Prom defendant’s printed book of rules, proven to be in force at the time, plaintiff give' in evidence the following rules respecting duties of its train operatives:

“Must inspect their brake apparatus carefully each trip, and report any repairs needed. They must keep pumps well packed, and drain main reservdirs regularly. * * * Must use the brake carefully, to avoid injury to passengers or freight. They must not use the emergency application unless it is really necessary, and must be especially careful to apply moderately when train is moving slowly." * * * See that there are no leaks in air pipes or connections, and that air-brake apparatus generally is in good working order. * * * When the engine has been coupled to the train, and has been charged with an air pressure of 70 pounds the engineman shall, at a signal from the inspector or. trainmen, make a full service application of not less than 25 pounds reduction, and keep brake applied until the entire train has been inspected and the signal to release given. He must not leave the station until it has' been ascertained that all brakes are released, and he has been so informed by the inspector or trainmen. This test must be made at all terminals, and after each change in the make-up of the train. * * * When the engine has been coupled,, and gauge shows a sufficient pressure in train pipe, the trainman or inspector making the test will request the en-gineman to apply the brakes, and will then go to each car and observe the pistons to see that the brake is set. * * * When the last car is reached, if the brakes are set properly, he will give a signal to the engineman to release the brakes, and the person making the test will then examine each car, see that the brake releases, and on arriving at the engine will report to the engineman the number of brakes in good order and working. If any brakes will not release, or have leaks or broken rods, or other defects, which render it necessary, they must be cut out by closing stopcock in branch pipe and then bled, to insure that they will not stick. * * * In switching trains, the hose must not be pulled apart, but always be uncoupled by hand. * * * In making up trains, examine couplings and signal discharge valves to see if tight.”

There was no evidence by defendant that the inspection or tests of the cars and equipment came up to the requirement of these rules, but the affirmative evidence of the engineer, Lingo, and conductor, Brown, was to the contrary. The inspection testified to by the inspector, Stringer, was made at Teague, five days before the accident.

The foregoing summary is sufficient to show there was abundant affirmative evidence of a circumstantial nature warranting an inference of negligence in either improper operation or equipment.

The fifth, sixth, and seventh assignments are therefore overruled, for the reasons: First, the fact of the casualty under the ■attendant circumstances was sufficient to warrant an inference of negligence under the doctrine, of res ipsa; and second, independent of this rule, there was affirmative circumstantial evidence warranting an inference of negligence.

Plaintiff, in his petition alleged:

“That plaintiff, at the time of said injuries, was an able-bodied, healthy, and industrious man, in the prime of life, well qualified and skillful in his work, and competent to fill, and has been accustomed to fill, sundry lucrative positions in the railroad service, such as road-master, section foreman, and the like, and he then had the capacity of earning, and had been accustomed to earning, to wit, as much as one .hundred and fifty dollars ($150.00) per month, and he was at the time of aforesaid injuries receiving and earning for his services as foreman aforesaid a salary of fifty-five ($55.00) dollars per month, by that name, and also, as a perquisite and part of his pay for his services as such foreman, the valuable right, which was uniformly attached to such position, and which he regularly exercised, of boarding the employés of his section crew, and the benefits attached to said right, consisting of section houses therefor, free of rent, of the rental value of twelve dollars ($12.00) per month, which perquisite was established and certain, and from it and the benefits thereof with his said salary of $55 per month by that name, his earnings for his personal services in that behalf were then, to wit, of the average sum and value of one hundred and twenty-five ($125.00) dollars per month, of all which he has been deprived by the injuries aforesaid; for that, said boarders averaged at least 15 men per month, who paid for their board $15.50 per month each, against which his expenses for boarding, including hired help of $15 per month, did not exceed $12 per month each, so that his net gain therefrom, being readily ascertainable as aforesaid, amounted to at least $3.50 per month each, which he would not have earned, but for his position as foreman, and which was the result of such position and of his personal services in looking after and superintending said boarding.’’

At the trial plaintiff proved the averments as to the boarding of men and profits therefrom, and further testified that as roadmaster he had the capacity to earn, and had been accustomed to earn, as wages about $125 per month; that the position of section foreman on railroads generally and on the defendant’s road, where he had been serving in that capacity for nearly three years, gave smaller wages by name, his under defendant being $55 per month, because there was uniformly attached to the position, as a perquisite and part of the pay of" it, the right to board the men working under the section foreman; that in such case the section foreman would furnish no substantial capital, the section house being furnished free of rent by the employer, in plaintiff’s case of the reasonable value of $10 per month; that the amounts owing to him by the men for board were deducted by the defendant for him, so that there was no loss to him from bad debts; that the average number of men he boarded had been as much as 30, but was during the period he had been working for defendant, just before his injury, 15; that the right to board them was a uniform part, a perquisite, of the position of section foreman, and existing only as a part of the pay for that position; that he was by his injury rendered unable to follow the position of section foreman, so that by the injury the opportunity of thus boarding the men was lost to him the same as his wages proper of $55 per month; that he personally superintended and looked after the boarding of the men, morning, noon, and night; that the price customarily paid by railroads generally for services such as he was performing as section foreman was $55 a month and the privilege of boarding the men.

Error is assigned to the refusal of a special charge, which reads:

“In case your verdict should be for the plaintiff, you will not, in assessing his damages, take into consideration as an element of damage, or as bearing upon his earning capacity or loss thereof, any testimony concerning the alleged right of perquisite of boarding the members of his section crew, and profits to be earned therefrom.”

The charge was properly refused, because it directed the exclusion of the testimony from consideration “as bearing upon his earning capacity or loss thereof.” Ry. Co. v. Murphy, 49 Tex. Civ. App. 586, 109 S. W. 498 (W. of E. Ref.); Wallace v. Ry. Co., 195 Pa. 127, 45 Atl. 685, 52 L. R. A. 33. See, also, note and numerous cases cited in 52 L. R. A., at page 38; Wilkie v. Ry. Co., 127 N. C. 203, 37 S. E. 204; Bloomington v. Chamberlain, 104 Ill. 268; 8 Am. & Eng. Ency. Law (2d Ed.) 649-654; Watson’s Damages for Personal Injuries, §§ 482, 503, 504, 507.

In Wallace v. Ry. Co., supra, it was held that the profits of a boarding house conducted by one injured by negligence may be considered in determining the plaintiff’s earning capacity. The adversely cited case of Goodhart v. Ry. Co., 177 Pa. 1, 35 Atl. 191, 55 Am. St. Rep. 705, was explained and limited, and, in discussing the admissibility of the evidence, the court said:

“Profits derived from capital invested in business cannot be considered as earnings, but in many cases profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.”

Had the charge in question simply excluded the testimony as an element of damage, it would perhaps have been a proper one, as such evidence is admissible, not as a direct element of recoverable damage, but on the issue of lost earning capacity. The adversely cited cases are all referable to the rule adopted in some jurisdictions that the profits of a business enterprise combining capital and labor do not constitute a legitimate basis for estimating the earning power of one personally contributing the element of labor where he has been wrongfully injured so as to be unable to furnish the same. The better rule, however, seems to be, and has been adopted in this state, that, even in such case, profits of such a business are admissible, not as an element of recoverable damage, but as tending to show possession of business capacity, and the extent of the decrease of capacity to work and pursue bis customary employment and as an aid in estimating a fair and just compensation for decreased capacity. Ry. Co. v. Murphy, supra; Wallace v. Ry. Co., supra, and note in 52 L. R. A. 33, and numerous cases cited; 8 Am. & Eng. Ency. Law (2d Ed.) 654; Watson’s Damages for Personal Injuries, §§ 482, 503, 504, 507.

The correctness of the twelfth paragraph of charge upon the measure of damage is not questioned. It does not submit as an element of recoverable damage the loss of the profits resulting from boarding employes. Under the authorities quoted, the testimony was admissible as bearing upon plaintiff’s earning capacity and loss thereof. This is especially true in view of the fact that here there was no combining of capital with labor as in the adversely cited cases.

Error is assigned to the overruling of a special exception addressed to the sufficiency of the allegation of negligence contained in the third count. The allegation is general, which is permissible where the doctrine of res ipsa loquitur is applicable, and it was so held upon the former appeal of this case. Ry. Co. v. Geary, 144 S. W. 1045. Under our holding the allegations are sufficient and the rule announced upon that appeal is the law of this case, and upon a subsequent appeal will not be reconsidered or overruled, even if it appears to be erroneous. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208 (W. of E. Ref.); Tinsley v. Bottom (Civ. App.) 155 S. W. 1053; Thompson v. Ry. Co., 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539.

The rule there announced, that generality of allegation in such cases is permissible, is deemed correct and supported by all of the authorities. Ry. Co. v. Hawk, Ry. Co. v. Young, Washington v. Ry. Co., McCray v. Ry. Co., and Ry. Co. v. Wood, all supra.

Even if the exception was erroneously overruled, it is not apparent any injury resulted from such improper ruling, -and it will not be presumed. Wells Fargo Co. v. Benjamin, 165 S. W. 120. Therefore, in any event, the action taken furnished no ground for reversal. Rule 62a (149 S. W. x).

It is next and last contended the verdict of ?20,000 returned in this case is excessive, and based upon prejudice, sympathy, or other improper motive. Regard being bad to that view of the testimony which it was the jury’s province to adopt, It cannot be s'o regarded. At the time of the injury, plaintiff was a strong, healthy, and industrious man, 49 years of age, being, at the date of trial, 52 years old. His probable length of life was 21 years more. It was proved be had been accustomed to earn $125 per month as roadmaster and as section foreman, with the perquisites attached to that position of boarding the men, about $100 per month, and, at times, considerable upwards of that.

The testimony of plaintiff and of his physician was to the effect that plaintiff’s right arm was paralyzed, so that it had been since the injury, and would be for his life, worthless and useless; that it was complicated by in extraordinary condition, under which it had to be always tightly bandaged, as, when taken out of the sling, it would jump up and down, and was unbearable until replaced in a tightened bandage. Owing to this condition, plaintiff had been unable to earn anything since his injury, and was permanently incapacitated. He had needed and received nursing attention since the injury, being unable to dress or undress himself or to prepare his food, or to sleep undisturbed, which conditions the jury was warranted in finding would continue. He had lost weight, and was undermined in health and in his nervous system. It was proven that a proper treatment of his injury would require the use of electricity for the rest of his life, the reasonable cost of which would be $250 per year, and would continue to require nursing and medical attention.

Taking into consideration this testimony, the verdict of $20,000 is not regarded as excessive, and there is nothing, aside from the amount, to in any wise indicate that it was the result of any improper influence or motive.

Affirmed.


author: HUFF, C. J.

text:
    TEXAS BLDG. CO. v. REED.
    (No. 628.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 23, 1914.
    Rehearing Denied June 27, 1914.)
    1. Master and Servant (§ 180) — Fellow Servants — Operation op Railroad — Statute.
    Under Rev. St. 1911, art. 6640, making a railroad liable for injuries to its servants while engaged in the work of operating its cars, by reason of the negligence of any other servant, a railroad construction company operating an engine and work train, and engaged in raising rails on a railroad and filling in under them, known as surfacing, and employing plaintiff as one of a gang picking up ties and rails along the track and loading them on flat cars, was engaged in the operation of a railroad, and plaintiff was engaged in the work of operating a train thereon, so that the company was liable to plaintiff for injury occasioned by Ms fellow servants.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.]

      2. Master and Servant (§ 316) — Master/’s Liability — “Vice Principal” — Statute.
    Under Rev. St. 1911¡ art. 6641, providing that all persons engaged in the service of any person operating a railroad, and intrusted by •such person with superintendence of its other servants, or the direction of their work, are vice principals, and not fellow servants with their coemployés, the foreman of a gang of laborers in the employ of a railroad construction company engaged in the operation of a railroad, directing the loading of ties, rails, etc., on the flat cars of the company’s work train, was not an independent contractor, but was a vice principal, so as to render the company liable for his negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. § 316.

    For other, definitions, see Words and Phrases, vol. 8, pp. 7313-7316, 7829.]
    .3. Master and Servant (§ 297) — Injury to Servant — Verdict—Conformity to Findings.
    In an action by the servant of a railroad construction company for personal injury, in which the complaint alleged that the boss in charge as agent,of the company was negligent in not having any one present to give the signal for laying down or dropping rails, and in allowing any and all of the men lifting a rail to yell and give orders at the same time, and in placing most of the strong men at one end of the rail and the weaker with plaintiff at the other, jury found that the plaintiff and those who gave the confusing orders as to the dropping the rail were in the same grade of employment working to a common purpose, that neither the company nor its foreman adopted suitable signals for the loading of rails with safety to plaintiff, that the company was operating a railroad, that the foreman was its agent, that the company was negligent, and that plaintiff was free from contributory negligence. Held, that the findings amounted to a finding that the company was negligent in its system of signals, and that a judgment for defendant thereon was properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1196-1198; Dec. Dig. § 297.]
    4. Master and Servant (§ 201) — Master’s Liability — Concurrent Negligence.
    A servant injured by the concurrent negligence of his master and a fellow servant can recover against the master, because in such case the master is one of two joint wrongdoers, against either of whom the party injured has an action.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.]

      5. Master and Servant (§§ 277, 330) — Action for Injury — Sufficiency of Evidence — Independent Contractor.
    In an action for personal injury to plaintiff, one of a gang employed by a railroad construction company in surfacing a railroad, evidence held to show that the company’s boss or foreman directing the work was not an independent contractor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 953, 1270-1272; Dec. Dig. §§ 277, 330.]
    6. Master and Servant (§ 297) — Action for Injuries to Servant — Findings — Construction.
    In an action for personal injury by the servant of a railroad Construction company while working under the direction of its boss or foreman, a finding that the foreman was a subcontractor or agent, together with a finding ' that he was operating a railroad as agent of the construction company, were 'not conflicting, and authorized a judgment on the conclusion that he was not an independent contractor, but the agent of the company.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.]
    7. Judgment (§ 256) — Conformity to Verdict and Findings — Damages.
    In a servant’s action for personal injury, where the jury found that his loss from being prevented from labor and by reason of mental and physical pain was $78 and $500, respectively, and, in answer to another issue, that he was permanently injured as to his earning ability to the amount of $578, a judgment reciting that it appeared that the jury had rendered a double verdict for $578, that counsel for plaintiff had remitted all in excess of that amount, _ and therefore rendered for such amount, was within the power of the trial court.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    8. Appeal and Error (§ 1073) — Harmless Error.
    In such case the fact that judgment was not rendered for all the amount found by the jury did not injure the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. § 1073.]
    9. New Trial (§ 162) — Conditions on Denial-Remittitur.
    It is within the power of the trial court to permit a remittitur, rather than grant a new trial.
    [Ed. Note — For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Action by Raymond Reed against the Texas Building Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Flournoy, Smith & Storer, of Ft. Worth, for appellant. Henley & McComb, of Jacksboro, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error denied by Supreme Court.

       For other cases see same tojiic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellee, (Raymond Reed, instituted this action against the Texas Building Company, appellant, and against W. J. Clarke. Upon trial before a jury judgment was rendered against appellant for the sum of $578, from which appellant appeals. The appellee did not procure service against W. 3. Clarke, and the suit was discontinued as to him, and the issues were tried as between appellant and appellee. It is alleged substantially in the petition: That the appellant was engaged in the work of raising rails on a railroad and filling in under them, known as “surfacing.” The line of railway upon which such work was being done was the Gulf, Texas & Western Railway Company, between Jacksboro and Saylesville. Part of the work alleged as then being done was the taking up of the extra cross-ties, steel rails, etc., along said line of railway. That appellant employed and worked a great number of men at the date in question, and was operating a railroad and running an engine and work train with flat cars upon tlie said line of road, which was being surfaced. That W. J. Clarke was on said date, June 4, 1913, employed and working for appellant as foreman and boss of a gang of laborers under the employment of appellant, and on that day Clarke was in command and had charge and direction of the work and of appellee and other employés. At that time appellee was working for appellant, together with other employés, under the superintendence of Clarke, and with the work train, and that they were then operating it on'the line of railroad aforesaid, and stopping it along the lines at various points, picking up cross-ties and extra steel rails and other material along the track and loading the same on flat cars. While appellee and others, under the direction of Clarke, were attempting to load a steel rail on a flat car, and before the end of which appellee had hold of had been raised high enough to turn loose, without great injury to himself and others, the superintendent or boss and others began yelling conflicting calls and orders, which were confusing to appellee, so that he was unable to tell what was meant, and the men who were carrying the other end dropped their end of the rail too soon, which caused the rail to fall upon and catch, mash, and crush appellee’s hand. It is alleged that he was wholly without fault or negligence, and that his injury was caused by the negligence of appellant, its agents, and employés—

“in charge of said engine and cars, in this: That the boss in charge as agent of said company was negligent and careless in the respect that he did not have some one person to give the signal word for letting down or dropping the rails; that he was negligent and careless in the respect that he allowed any and all the men that were raising and lifting the rails to yell, holler, and give orders at the same time; and, further, that he ordered and placed most of the strong men at one end of the rail which plaintiff and others were attempting to load at the time, and that this injury to plaintiff resulted, and placed weaker and insufficient number at the other end with plaintiff.”

The appellant answered by general denial and contributory negligence that the acts complained of by appellee, .to the effect that there were confusing orders given by appellant’s employés, and that such acts or omissions, if any, where by fellow servants of appellee; that the work which appellee and his colaborers were engaged in at the time was under the exclusive charge and control of W. J. Clarke, who had entered into a contract in writing with appellant for the consideration mentioned in the contract, and that appellee and those who were working with him in the performance of the work were the employés of Clarke, and under his direct supervision and control, and were not employés of appellant, nor under its control; that the work being done was for Clarke, and not for appellant.

The appellee answered, by supplemental petition, that the contract set up as having been made between appellant and Clarke was a subterfuge and an attempt on the part of' appellant to defeat liability, and was an insid-ious attempt to shift its own liability onto-Clarke, who was pecuniarily irresponsible; that Clarke was not an independent con-traetor, but a mere subcontractor and agent and employé of appellant; if said contract did create the relation of an independent contractor, that such relation had been destroyed and abrogated by a practical construction of said contract by the parties themselves, and that appellant did in fact exercise direction, control, and management of the details of the work to be done under the contract, and exercised direction and control as to the mode, manner, and means of doing said work and exercised control, etc., of the men working under Clarke upon the work; that it was not binding upon appellee; and that he never heard of such relation existing between Clarke and appellant until after this suit was instituted.

The appellant assigns error upon the refusal of the trial court to give its specially requested peremptory charge to find a verdict for it (1) because the evidence did not show that Clarke had power and authority to employ and discharge appellee for appellant, and they were therefore fellow servants; (2) because the undisputed testimony showed that appellee’s injuries were caused by the negligence of the fellow servants of appellee. And the fourth assignment is to the effect that the court erred in refusing to render judgment for appellant on its motion to do so, because it appears from the finding of the jury to the third specially requested instruction that appellee was a fellow servant with those whose negligence caused his injury.

The appellant, the Texas Building Company, entered into a contract with the Gulf, Texas & Western Railway Company to build a railroad on what is known as the Jacks-boro extension to Saylesville, and that it did do so and employed Clarke and others on the work. Under the contract with the railway company, .that company was to furnish appellant a work train to use in the construction of the road, and that it was to pay for its use. Some time during the construction of this road one Samuel Kaye, an agent and employé of appellant, entered into a contract of employment with the appellee at Mineral Wells. The appellee had been directed to this work by an Employers’ Bureau at Et. Worth, and Kaye met him at Mineral Wells and sent him out upon the work, agreeing to pay him $1.75 per day. Kaye told the appel-lee at the time that he (Kaye) was then working for appellant, and on that day he took appellee to the hotel, paid for lodging until he could be sent out over the road on to the work, and paid his expense at the hotel, and bought him a ticket, telling appellee that the conductor would put him off at the place where the work was being done. The appel-lee at that time did not know of any contract existing between Clarke and the appellant, but thought that he was working for appellant. The facts in this case show that appellee received his injuries about June 4, 1913, substantially as alleged by him, and the facts are sufficient to show that appellant had no rules or system with reference to directing the men to act in unison in laying down or handling steel rails. Clarke himself testifies that they had no such rule or system, and that it would have been safer or better for them to have had such rule. The evidence is sufficient to show that, if appellant at this time was in charge of this work, it was negligent in the manner in which this work was done under its direction and management. Appellant introduces in evidence a contract entered into between it and Clarke, which will be referred to more in detail, under the consideration of the proper assignment.

We think the facts in this case show that, while appellant was a private corporation, it was nevertheless engaged in the operation of a railroad within the meaning of articles 6640 and 6641, R. S. 1911. Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479. Under the facts of this case, we are inclined to think that appellant was engaged in operating a railroad, and that appellee was engaged in the work of operating a train thereon, and under such facts appellant would be liable to appellee for injury occasioned by his fellow servants. This case in .its facts is much the same as those in the case of Railway Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S. W. 437. The jury found that appellee was injured while engaged in the work of operating a train. The Supreme Court, in the case of Railway Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, in referring to the Thornton Case, suggested that it had features which may distinguish it from the cases of Railway Co. v. Johnson, 47 Tex. Civ. App. 74, 103 S. W. 447, and Railway Co. v. Howard, 97 Tex. 513, 80 S. W. 229. In the recent case of Glover v. Houston Belt (Civ. App.) 163 S. W. 1063, Judge Higgins calls attention to the conflict in the decisions, and we think announces a correct rule. Whether we are correct or not in our views upon this question, we nevertheless think that Clarke was vice principal of appellant and in charge of the work, such as would render appellant liable for negligence on his part. If Clarke was not an independent contractor, then under ■ article 6641, R. S. 1911, and the evidence in this case, and the findings of the jury, he was a vice principal and intrusted with authority to superintend, control, and command other servants then on the work being done, and that he had the right to direct appellee and other employés of the appellant engaged in that work. The common-law rule that the negligence of an employé could not- be imputed to the master, unless such employé had the power to employ and discharge, is abrogated by statute, in so far as it shall apply to persons operating railways within this state. Railway Co. v. Frazier, 90 Tex. 33, 36 S. W. 432; Railway Co. v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 601-605. The case of Lantry-Sharpe Co. v. McCracken, 105 Tex. 407, 150 S. W. 1156, cited by appellant, recognizes the rule substantially as above set out. It is there said:

“Plaintiff’s cause of action is founded upon the common law. There is no statute in this state controlling actions against persons or corporations other than railroads and street railways for injuries to the person not resulting in death. Those provisions of our law defining who are fellow servants and who are vice principals relate exclusively to employés of railroads and street railways.”

We do not think the trial court was in error in refusing to peremptorily charge the jury to find for appellant, on the grounds above assigned by appellant.

The fourth assignment is based upon the trial court’s refusal to sustain appellant’s motion to instruct a verdict for it upon the answer of the jury to the third special issue, requested by appellant, submitted to them for their findings. That special issue is as follows:

“Was plaintiff and those who gave the conflicting and confusing orders in regard to loading the rail which injured plaintiff in the same grade of employment, doing the same character of work, and working together at the same time and place, and at the same piece of work, and to a common purpose?”

To which the jury answered: “Yes.”

At the request of appellee, the court submitted the following issue: “Was plaintiff engaged in loading a steel rail on a fiat car at the time of the alleged injury?” To this the jury answered: “Yes.” “If so, did the Texas Building Company or W. J. Clarke adopt and use certain and suitable rules and systems of signals for the loading of such steel rail with safety and protection to the plaintiff?” To which the jury answered: “They did not.” The jury found that the Texas Building Company was operating a railroad at the time and place appellee was injured, and that Clarke was operating the railroad as agent for appellant, and that the appellee was injured while engaged in assisting to operate the road for defendant, or in work which was incident to and connected with the purpose of operating said railroad. They also found that Clarke was the agent of appellant in such work, and that appellant was negligent, and that the appellee was not guilty of contributory negligence. The allegation of the petition, in describing the manner in which the injury was occasioned, alleges that the servants of appellant yelled conflicting and confusing orders, so that appellee was unable to tell what was meant by them, and that the other employés at the opposite end of the rail from appellee dropped their end of the rail too soon, which caused the rail to fall and catch appellee’s hand. The negligence alleged was (1) that “the boss in charge as agent of said company was negligent and careless in the respect that he did not have some one present to give the signal and words for laying down or dropping the rail; (2) that he was negligent and careless in respect that he allowed any and all the men that were raising or lifting the rail to yell, holler, and give orders at the same time”; (3) that he placed most of the strong men at one end of the rail, and the weaker with plaintiff at the other. "We think the findings of the jury are to the effect that appellant and its superintendent of the work were negligent in failing to adopt suitable rules or a system of signals for loading steel rails, and as a result the men assisting gave inconsistent, confusing, and conflicting directions. The jury do not find that these men so assisting and giving the order were negligent, but, under the pleadings and the issues, found such conflicting direction was the result of the negligence of appellant in not giving a system which would have prevented such confusion. The evidence shows that Clarke himself was present, and the work was being done under his supervision, and that he had also a foreman, a Mr. Sullivan, on the flat car on which the rail was being loaded. He admits there ought to have been one to give signals when to drop the rail. It is manifest the jury found that, in failing to give such a signal, the appellant was negligent. While they state the fellow servants of appellee were the ones yelling confusing orders at that time, they do not find such was negligence on their part. Appellee did not allege that these men were negligent in' so doing, but that appellant was negligent in- its failure to so direct the work as would prevent such confusion; but, if the findings of the jury shall be construed as a finding of negligence on the part of the fellow servants of appellee, the findings under the issue clearly - indicate that' appellant and its vice principal, Clarke, were negligent in the particulars alleged. The doctrine is well settled in this state that a servant injured by the concurrent negligence of his master and a fellow servant can recover against the master. This, it is said, is because the master in such case would be one of two joint wrongdoers, or tort-feasors, and as such would be responsible to the servant. Having been injured by the combined negligence of the master and his fellow servant, the injured party may have his action against either or both. Railway Co. v. Swinney, 34 Tex. Civ. App. 219, 78. S. W. 547; Railway Co. v. Jackson, 93 Tex. 262, 54 S. W. 1023. We think, under the findings of the jury, the pleadings of the parties, and the evidence, that the trial court properly overruled the motion to render judgment for appellant on the findings of the jury, in answer to the third special issue requested by appellant.

The second assignment of error is:

“That the court erred in refusing to give defendant’s special instruction No. 1, because the evidence showed that Clarke was an independent contractor, and that plaintiff was an employs of said Clarke.”

The proposition presented thereunder is substantially that the evidence conclusively showed that Clarke was an independent contractor for that part of the road covered by his contract. The evidence in this case shows that appellant had a contract with the Gulf, Texas & Western Railway Company for the construction of the roadbed and track at the point on the road where appellee was employed. The appellant introduced in evidence a contract signed by it and W. J. Clarke, by which Clarke was to furnish and pay for all tools and labor necessary for and to lay and surface all the track and switches for the Jacksboro-Saylesville extension of the Gulf, Texas & Western Railway Company, to the entire satisfaction of the railway company’s chief engineer. Clarke agreed to unload the materials required and store in yards; to load all material on cars for distribution and use in laying the track, and to hold appellant harmless from suits from damages and injuries to persons from Clarke’s acts or those of his employés or the railroad company, while working under the direction of Clarke; to execute a bond for the sum of $7,500; pay all bills promptly during the life of the contract for labor, material, and supplies, and, in case Clarke should fail, appellant might pay such bills and deduct the amount from any money due Clarke; to start actual track laying as soon as the grade is ready for track; and to complete track laying and surfacing and in fact all work covered by the contract by December 31, 1912, and to pick up all track materials left along the line when track is complete, etc. Clarke agreed to carry liability insurance covering his em-ployés. The appellant agreed to furnish Clarke necessary train service to enable Clarke to execute the work covered by the contract. Clarke was to receive for all track laying and surfacing and handling all track material $065 per track mile, payment to be made on the 20th of each month. Appellant reserved the right to take charge of the work covered by the contract at any time Clarke should fail to comply with the terms and conditions of same, or when the work should prove unsatisfactory to the chief engineer of the railway company. The appellant was to furnish all necessary track facilities for unloading material. As above shown, the evidence is that appellee was injured June 4, 1913, in the manner alleged by him in his petition, and while engaged in the work alleged; that the parties, Clarke and the em-ployés, working over and with appellee, were negligent in the particulars alleged. The jury found, under proper instructions from the court, that Clarke was not an independent contractor, but the agent of appellant at the time appellee was injured. The facts in this case are sufficient to warrant the finding that the work by Olarke was being done under the direct management of Samuel Kaye . and others, who, it is cohclusively shown, were at that time in the employ of appellant. The appellee was employed by Mr. Kaye to work on the road, and he made the contract with appellee to work on the road, paid his railroad fare to the work and his hotel expenses at Mineral Wells, where he was employed. The testimony is sufficient to warrant the jury in finding that Kaye directed the work as it was being done on the road, and directed the employés in the work. He did this when Clarke was present, as well as when he was absent. The testimony indicates that Clarke, Kaye, and Hughes directed the work and the manner in which it should be done. The evidence shows that Kaye told appellee when he employed him, that he (Kaye) was then working for appellant, and that he never told him that he (ap-pellee) was employed by Clarke. Appellee knew nothing of Clarke’s contract until after the suit was filed. His wages were paid by cheek signed by appellant, per Kaye, and countersigned by Clarke. When appellee was injured, Kaye told the doctor to treat him, and that appellant would pay his bill, which it did afteryvards. Kaye also, for appellant, paid the -hotel bill of appellee at which appel-lee stopped while his injuries were being attended to, which was something like a month. Kaye testified that appellee was working for Clarke when he was hurt. Kaye says when he employed hands he did so for Clarke, who paid him for his time. He also says that he had nothing to do with Clarke’s men, only when he was working for Clarke, and said he would not swear that he told Reed he would work for- Clarke, but does testify that he told Reed he (Kaye) was working for appellant. Mr. Bock, the general superintendent for the railroad company, testified that the railway company had a contract with appellant to do the work, and for that purpose the railway company furnished a work train to appellant to do the work, and for the use of which it paid the railway company, and 'that appellant had complete charge of the train and crew while they used it; that appellant had several men in charge of the work during the entire time the work was in progress. One of them was John Hughes, who stayed on the work in a tent and. directed and looked after the work. He testified that Zimmerman and Kaye had charge of the office of appellant at Jacksboro at different times. If the work did not come up to the .contract, the railway company made complaint to the appellant. They made several complaints,, some to Hughes and some to Kaye. Clarke used the train which appellant, under the contract, had the fight to use. We think the facts in this case were sufficient to warrant the jury in finding that the appellant company exercised control over the manner in which Clarke was to do the work, the means by which it was to be done, and that the persons engaged in the work with Clarke were under the control of and management of appellant, and that Clarke in fact was but an employé. The facts were also sufficient to warrant the conclusion that appellant, under the provisions of the contract, had taken immediate charge of the work. While Clarke testified he was doing the work under the contract, he does not testify that he employed appellee or the other men on the work, or that he paid them. On the contrary, the evidence shows that appellant paid the wages and paid the physician and hotel bills for appellee while he was under treatment for the injury, as well as that of another employé who was injured at the same time and in the same way. The trial court gave the jury a proper charge as to what would constitute an independent contractor, and when he would not be such. The jury had sufficient evidence, in our judgment, to warrant them in finding for appellee on this question. Wallace v. Southern Cotton Oil Co. (Sup.) 40 S. W. 399; Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638; Drennon v. Patton-Worsham Drug Co. (Civ. App.) 109 S. W. 218. The second assignment will therefore be overruled.

Under the fifth assignment it is asserted that the findings of the jury in answer to the seventh issue is uncertain in its meaning. The issue submitted is as follows: “Seventh Issue. Was W. J. Clarke hn independent contractor or a subcontractor and agent of the Texas Building Company?” To which the jury answered: “Subcontractor or agent.” The eighth issue submitted: “Was W. J. Clarke engaged in operating a railroad?” The jury answered: “Yes.” “If so, was it for himself, as an independent contractor, or as agent of the building company?” The jury answered: “As .agent of the Texas Building Company.” The jury clearly answered the seventh issue when their answer is read in the light of the issue submitted that Clarke was not an independent contractor. A subcontractor may, under certain facts, be merely an agent or employé within the meaning of the rule making the master liable. The jury, by their answer to the seventh issue, leave it doubtful whether Clarke was an agent of the building company or merely a subcontractor; but all doubt as to what they did find is removed by their answer to the eighth issue, which makes it clear that they found that Clarke was not an independent contractor, but was then the agent of the Texas Building Company. There is no necessary conflict in the findings of the jury, and hence the court could render the judgment upon the manifest conclusion that Clarke was not an independent contractor, but was then the agent of appellant. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Railway Co. v. Bender, 32 Tex. Civ. App. 568, 75 S. W. 561.

The appellant, by the sixth assignment, urges error on the part of the trial court in rendering a judgment on the verdict of the jury for the sum of $578, because in doing so appellant asserts the court in fact set aside the findings of the jury on one issue submitted by them. In answer to the issue submitted by the court to the jury to find the damages to appellee by “being prevented from engaging in labor, and by reason of mental and physical pain,” they found $78 for loss from inability to engage in labor and $500 for physical and mental suffering. Appellee requested the issue submitted to the jury as to whether appellee was permanently injured as to his earning ability. They, in answer to this issue, found $578. The court, in its judgment entry, recites that it appears the jury had rendered a double verdict for the sum of $578, and that it was the purpose of the jury to render but one verdict for the sum of $578 for loss of time, mental and physical pain, and permanent impairment of earning ability, and that, counsel for appellee, in open court, having remitted all in excess of $578, and agreed and asked the court to render a judgment only for the sum of $578, the judgment was therefore rendered for such amount. The appellee filed a remittitur of all in excess of the sum of $578. The jurors, each trying the case, made affidavit- to the effect that it was their intention to render a verdict only for the sum of $578, covering the entire damages, to which appellee was entitled. We think, from reading the verdict itself, this was the manifest, intended purpose of the jury. The verdict supports the judgment rendered, and the fact that it was not rendered for all, found by the jury, did not injure the appellant. The appellee had the right, we think, to file a remittitur and cure any error by reason of an. excessive verdict. It has been held that it is within the power of the trial court to permit a remittitur, rather than grant a new trial. Railway Co. v. Jackson, 61 S. W. 440; Railway Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 623. This judgment is not one rendered contrary to the verdict, but is based on the finding of the jury, and we believe the jury only found for the sum of $578 damages for appellee. They evidently so understood that such was their verdict. The assignment is not that the verdict was excessive, and that the trial court should have set it aside, but is only that the court should not have rendered a judgment for a less amount than that found by the jury. The appellee clearly had the right to relinquish any amount so found and have it so stated in the judgment. If the judgment had been entered up for the full amount found by the verdict of the jury, a remittitur could have been filed under the decisions of our various courts and the statutes, and we . see no reason why it could not be so stated in the judgment entry that a re-mittitur had been so filed, and the judgment decree a recovery for the amount of the verdict, less the remittitur.

We do not believe there is any reversible error assigned, and the judgment is affirmed.