source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    MASTERSON et al. v. PULLEN.
    (No. 6109.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.)
    1. Appeal and Error <S=>527(2) — Bill of Exceptions — Failure to File Conclusions of Fact and Law.
    Court’s failure to file conclusions of fact and law will not be considered on appeal without a bill of exceptions.
    2. Quieting Title <®=44(4) — Sufficiency of Evidence — Title of Plaintifj^ — Payment on Land Contract.
    In suit to remove cloud from title to land, wherein plaintiff’s title was attacked on ground that he had contracted to sell land to third party, had placed such party in possession, and received $1,000 earnest money on contract, evidence held insufficient to warrant finding that plaintiff had received such sum on the contract.
    3. Vendor and Purchaser <&wkey;54 — Payment of Consideration — Possession—Purchaser’s Equitable Title.
    Purchaser, having possession of land and having paid the entire consideration, has an equitable title superior to vendor’s legal title.
    4. Vendor and Purchaser <&wkey;54 — Rights ' of Purchaser.
    Purchaser who has not paid any of the consideration has not sufficient title to authorize recovery of land from vendor, his only right being to tender consideration and ask for specific performance.

      5. Quieting Title <§=>10(2) — Right to Bring Action — Title of Plaintiff.
    Vendor who has received no/part of the consideration has sufficient title to maintain a suit to remove cloud from the title to the land.
    6. Trespass to Try Title <⅞=^6(1) — Holder of Naked Legal Title.
    The holder of a naked legal title may maintain an action of trespass to try title.
    7. Adverse Possession ⅞=»60(3) — Acknowledgment of Right of State.
    A person in possession of land, though acknowledging a better right in the state, may hold adverse possession as against true owner.
    8. Adverse Possession <®=>70 — Hostility to Owner.
    The mere holding of land, under the belief that the land is the state’s and with the purpose of acquiring it lawfully at some future time, does not define the attitude of the possessor as hostile to the claim of the owner of whose existence he is ignorant.
    9. Adverse Possession <®=»60(3) — Improvements — Possession Adverse to True Owner.
    Plaintiff, who took possession of land for purpose of acquiring land from state under belief that land was vacant, but who after being told that land was not vacant, and with knowledge of real owner, continued for a period of ten years to hold land and make substantial improvements in fence inclosing land, held to have held land adversely to true owner.
    10. Adverse Possession ®=^30 — Notice — Fence.
    Fence inclosing 360 acres of land was a sufficient notorious assertion of holder’s adverse claim, though land was in a very rough, broken, uninhabited country.
    Appeal from District Court, Edwards County; James Cornell, Judge.
    Action by L. M. Pullen against Reba B. Masterson and others. Judgment for plaintiff, and" defendants appeal.
    Affirmed.
    W. C. Linden and William C. Church, both of San Antonio, for appellants.
    Jno. W. Hill, of Uvalde, for appellee.
   MOURSUND, J.

L. M. Pullen sued Reba B. Masterson, E. R. Guenther, Adolph Wagner, and his wife, Amanda Wagner, to remove cloud from the title to 360 acres of land in Edwards county, described by metes and bounds, pleading specially title by limitation under the three and ten years’ statutes. The record contains no answer by Reba B. Masterson. The other defendants answered by plea of not guilty.

Judgment was rendered in favor of plaintiff.

Complaint is made of the failure of the court to file his conclusions of fact and law. The failure to file such conclusions will not be considered without a bill of exceptions.

Landa v. Heermann, 85 Tex. 1, 19 S. W. 885.

It is contended that Pullen is not entitled to recover the land for the reason that, prior to the institution of the suit, he had entered into a contract in writing for the sale of such land, under the terms of which $1,000 earnest money had been paid to him, and the person who contracted to purchase the land had been put in possession thereof and was still in possession at the time of the trial. The contract was not introduced in evidence. Plaintiff testified that he had contracted in writing prior to the institution of the suit to sell certain lands, including that in controversy, to Neal Jernigan; that Jernigan ascertained that plaintiff could not give him title to the 360 acres in controversy, and that he had to prove up his occupancy as to the west half of section- 34. It appears from his testimony that Jernigan parted with $1,000, which was at the time of the trial in a bank; but he did not explain whether it had been paid to him, or whether it accompanied the contract and was in the nature of a deposit to secure Jernigan’s compliance with the terms of the contract when plaintiff should have complied with his part. Jernigan was to pay about $6,000 additional. This testimony does not warrant a finding that even the $1,000 had been paid to plaintiff. Had the entire consideration been paid, and possession given, Jernigan would have had an equitable title superior to the legal title of plaintiff. Secrest v. Jones, 21 Tex. 121. As it was, Jernigan had no such title as would authorize him to recover thd land from plaintiff. He could only tender the consideration and ask for specific performance of the contract. Wallace v. Wilcox, 27 Tex. 60; Bell v. Warren, 39 Tex. 106; Prusiecke v. Ramzinski, 81 S. W. 771.

There is no merit in the appellant’s contention that at the time of the institution of the suit plaintiff had parted with his title. The holder of a naked legal title may maintain an action of trespass to try title, and plaintiff occupied a much more favorable position. Dean v. Jagoe, 46 Tex. Civ. App. 389, 103 S. W. 195.

In the second assignment it is contended that the evidence does not sustain a finding that plaintiff’s possession was adverse for a period of 10 years. Plaintiff inclosed the land about 25 or 27 years before the date of the trial, and made application to purchase the same as vacant land; but the exact date thereof is not shown. He testified his papers were returned and he was notified that the land he was claiming conflicted with some other surveys, but he knew it did not. He also testified that some one notified him he had $14 “in the land office,” and asked him if he wanted him to collect it, and he paid, no attention to the notice, his idea being that he expected to get the land “at some time or other”; that he was not trying to beat anybody out of it; that he left the money there for the purpose of paying the state for the title. He did not 'testify when this occurred, and when it was that he was not trying to beat anybody out of the land. In 1903 he received a letter from Hogan & Me-. Inerney, attorneys at Austin, stating that there was no vacancy, as the surveys of block J call to tie to the Southern Pacific surveys, and that the land office had so ruled on the 1900 files that were sought to be located on the supposed vacancy. He testified that from the time he received this letter he knew the owners of the surveys in block J owned the land in controversy; that from that time forward he had not claimed it was vacant; that he had claimed said land against the whole world during the 'entire time he had it fenced. He testified further that the last time he tried to get the commissioner to recognize a vacancy there was in 1903, and that “they claimed it was covered by 15”; that he had not frequently stated within the last few years that he believed it was vacant land; that he knew better than that; that he had known since 1903 that it was not state land, and had not claimed it since then as state land; that he had been claiming it adversely to Mr. Mas-terson ever since then. The evidence warrants a finding that plaintiff improved his fence on the land materially about 6 or 7 ¡years before the trial. His testimony was sought to be weakened by asking him whether he had not made statements to certain persons, tending to show that he still believed within a few years prior to the trial that there was a vacancy. He first denied making any such statements,' but finally said he had no recollection of having conversations such as were inquired about. Luther Roberts testified that about 3 years before the trial plaintiff told him he had no deed to the land, but had been trying to get a deed for a good while; that his money was at the land office, and he expected to get a deed; that plaintiff did not tell him until the spring of 1917 that he- was claiming the land; that he then said he was expecting to get a deed from the state or he was going to sue Masterson for a deed. Quincey Oraig testified that he had talked to plaintiff concerning this land, and while most of his testimony appears to relate to what plaintiff thought and claimed at the time he had a survey made on the theory that it was vacant land or school land, which must have been prior to 1903, he also said:

“I do not remember when was the last time he thought it was vacant land — I think within the last four or five years. I could not say whether or not it was within the last two or three years; it has been something like five years.”

While plaintiff testified he paid taxes on the land in controversy, the tax collector testified that from 1913 to date of trial the tax rolls showed no payment of taxes by plaintiff on said land. He testified his examination did not extend further back. It appears that the assessor’s record was offered in evidence, and that a copy was intended to be attached to the statement of facts; but it was not attached.

The court recited in his judgment, and the recital is sustained by the evidence, that the land in controversy is a part of survey No. 15, block J, which survey was shown to have been patented to Branch T. Masterson on October 23, 1882.

Under the rules laid down in the case of Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, it is clear that, even though a person in possession of land may acknowledge a better right in the state, he may hold adverse possession thereof as against the true owner. It appears, however, that the mere holding of it under the belief that the land is the state’s and with the purpose of acquiring it lawfully at some future time does .not define the attitude of the possessor as hostile to the claim of an owner of whose existence he is ignorant. In this case it is shown that after 1903 plaintiff knew that the owner of survey 15, block J, was held to be the owner of the land in controversy by the Commissioner of the General Land Office, and by attorneys whom he consulted, and therefore he not only had a suspicion of the claim of the true owner, but, if his testimony be believed, such a well-defined belief in the merit of such claim that he did not renew his efforts to acquire title from the state. The fact that his possession was still maintained under a claim of right to acquire the title from the state, if such is the fact, would not necessarily show that his possession was not adverse to that of the true owner. After he received the letter from Rogan & Melnerney, he continued to hold possession of the land for more than ten years, during all of which time his fences were promptly repaired when down, and about seven years before the trial a substantial improvement was made in a portion of the fence. It as true that at some time, according to his testimony, he did not want to beat anybody out of the land; but that may have been prior to 1903, and, if he testified to the truth in making other statements, it must have been pri- or to that time. We conclude that we would not be warranted in setting aside the finding of the trial court that plaintiff’s possession was adverse to the true owner for a period of ten years prior to the institution of the suit.

The further contention is made that as no improvements were placed on the land other than the fence, which ran across the same in a very rough, broken, uninhabited country, the plaintiff’s possession was not such a notorious assertion of an adverse claim as was sufficient to put defendants and their predecessors in title upon notice thereof. There is no merit in this contention. The cases relied on are cases in which it has been held that possession of a few acres by a neighbor could not give title to 160 acres, as the owner might well believe that his neighbor had made a mistake concerning the division line. This case involves the land actually inclosed, consisting of 360 acres of land.

The judgment is affirmed.
      tífc^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»For o&er cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BURNETT v. ANDERSON.
    (No. 8904.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 19, 1918.
    Rehearing Denied Nov. 23, 1918.)
    1. Damages <&wkey;132(7) — Personal Injuries —Excessive Damages.
    Although plaintiff, when he received permanent injuries to his foot and other injuries, was 60 years old, where he was able to and did superintend a large business and injuries had largely impaired his ability to do so, besides causing him suffering and expense, a verdict for $10,000 will not be held excessive.
    2. Appeal ano Error <&wkey;1013 — Amount op Recovery — Province op Jury. ■
    The determination of the amount of damages in personal injury cases is committed to the jury in a very large measure, and its decision will not be reversed, though damages are greater than appellate court would have given.
    3. Appeal and Error <@=3-1050 (1) — Admission op Incompetent Testimony — Harmless Error.
    In an action for injuries to pedestrian due to automobile accident, that a witness was asked the whereabouts of some X-ray pictures of plaintiff's foot, and replied, “I gave them to the insurance man,” held, not to have had any appreciable influence in enlarging the verdict or in arousing any degree of prejudice.
    4. Municipal Corporations <&wkey;706(8) — Collision in Street — Action—Instruction.
    In action for personal injuries sustained by plaintiff pedestrian when run down by an automobile, driven by defendant’s chauffeur, held, that court’s main charge was not subject to objection that it submitted issue of discovered peril.
    5. Trial <&wkey;252(8) — Instructions — Evidence.
    In action for injuries sustained by pedestrian when run down by an automobile, giving of a special requested charge on discovered peril held not erroneous as against objection that there was no evidence that chauffeur saw plaintiff.
    6. Evidence <&wkey;75 — Failure to Produce Evidence — Presumptions.
    Where a party fails to present evidence within his power to produce, the presumption is that the evidence, if offered, would be unfavorable.
    7. Appeal and Error <&wkey;1051(l) — Admission op Testimony — Harmless Error.
    Where it was plain from the evidence that defendant’s chauffeur was exceeding speed limit, permitting a witness to testify that chauffeur had stated shortly after accident that he was driving a little fast, and that the passenger had stated that she had requested chauffeur not to drive so fast, was without prejudice to defendant.
    8. Trial <&wkey;252(8) — Instructions — Evidence.
    In action for injuries sustained by plaintiff pedestrian when run down by an automobile, held, under the evidence, that court did not err in refusing to give special charge submitting issue whether chauffeur was an employé or servant of defendant.
    9. Municipal Corporations <&wkey;706(7) — Injuries to Pedestrian — Contributory Negligence.
    In action for injuries sustained by plaintiff pedestrian when run down by an automobile, driven by defendant’s chauffeur, held, that court did not err in denying peremptory instruction for defendant who pleaded contributory negligence as a defense.
    Error from District Court, Tarrant County; Bruce Young, Judge.
    Action by A. J. Anderson against Tom L. Burnett. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Samuels & Brown and McLean, Scott & McLean, all of Ft. Worth, for plaintiff in error.
    Slay, Simon & Smith, Chas. T. Rowland, and Theodore Mack, all of Ft. Worth, for defendant in error.
   CONNER, C. J.

This appeal is from a judgment of $10,000 in appellee’s favor as damages for personal injuries received in an automobile accident. The record discloses that on April 27, 1916, a chauffeur in a large, high-powered automobile, with a daughter of plaintiff in error, was rapidly driving along Jennings avenue in the city of Ft. Worth, and that near the point where said avenue connects with Throckmorton street in said city said car ran over and seriously injured defendant in error, who at the time was attempting to cross the street. The defendant in error, in his petition for a recovery, alleged, among other grounds of negligence, that the driver of the automobile was proceeding at an unusual rate of speed in violation of both a state statute and a city ordinance on the subject. In answer, this was denied, and it was further alleged that the plaintiff in the suit was guilty of contributory negligence. The trial, however, resulted in a judgment in defendant in error’s favor as stated.

Plaintiff in error, on this appeal from the judgment mentioned, presents as of first importance the contention that the verdict and judgment is excessive, but, after a careful consideration of the evidence, we have been unable to so determine. There was evidence tending to show that Anderson was very violently thrown upon the paved street; that the car ran over and crushed the arch of his left foot and broke or shattered two or more of the bones in the arch; that he received blows or injuries on the side of his spine that resulted in a loss of sensation of the right leg for a number of days, and a curvature of the neck not yet under control; that the use of his right arm has become greatly impaired. The evidence is further to the effect that the injury to the foot caused very great and long-continued pain, Anderson testifying that it became greatly swollen and discolored; that for nearly three weeks he was confined to his bed, during all of which time the pain and agony was intense; and it was some four months before he was able to do more than “hobble” around on his crutches ; that at the time of the trial, about one year after the injury, he was yet unable to walk with his former ease; that he could not walk without pain more than five or six blocks in town where the pavements were smooth without sitting down to rest; that where the ground was uneven and rough he was unable to walk that' far without pain; that, when his foot rested upon a pebble or protruding substance, it gave him pain; that in walking he was compelled to “drag his foot and keep it flat”; that he was unable to do much work which would necessitate his moving around or being active on his feet; that he was unable to work in his store as he did before because of ‘His inability to stand upon his feet.

The evidence further tends to show that he conducted a large business in the city with some 37 employes engaged by him in conducting it; that such business had been supervised ■ and managed by him continuously |o the time of his injury, save that some seven months prior to the injury he had acquired a suburban residence on Lake Worth, some 12 miles from the city, at which place during said months he had spent much of his time in improving it, etc., but nevertheless going to the store once or twice a week to superintend the business; that since his injury he had been required to hire one of his former employes as general manager of the store at an advance in salary of $50 per month; that he had incurred an expense of about $100 in the way of doctors’ bills for medical treatment, exclusive of his drug bill.

There is no mathematical standard by which we can measure damages for injuries ■ of the character indicated by the foregoing statement of what the evidence in this case tends to prove. The law merely declares that such damages shall be limited to just compensation, and the determination of that question is committed to the jury in a very large measure. The rule by which an appellate tribunal is to be guided, when called upon to review the verdict of the jury assessing damages, is thus tersely stated in the case of H. & T. C. Ry. Co. v. McNamara, 59 Tex. 255:

“It is only when the damages are palpably and manifestly excessive that the verdict will be set aside by the appellate court. A large amount of discretion is necessarily left to the jury in all such cases, and the court will not reverse even if the damages allowed are much greater than the court would have given under the proof.”

To the same general effect are the following authorities: H. & G. N. Ry. Co. v. Randall, 50 Tex. 254; Lumber Co. v. Denham, 29 S. W. 554; C., R. I. & T. Ry. Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; C., R. I. & G. Ry. Co. v. Swann, 60 Tex. Civ. App. 427, 127 S. W. 1164.

While defendant in error was 60 years of age at. the date of his injury, he nevertheless was, as the evidence tends to show, a man in full vigor of life; was able to do, and did, superintend a large business; that the ability to do this has been largely impaired; that he suffered for weeks very great pain; that, his injuries are permanent; and we find nothing in the evidence that to our minds induces the belief that the jury in assessing the damages in this case were actuated by passion or prejudice. The only circumstance relied upon by the plaintiff in error is the fact that, in the examination of one of the witnesses, he was asked the whereabouts of some X-ray pictures that had been taken of defendant in error’s foot, and he gave the following reply: “I think I gave them to the insurance man.” But we attach no • particular weight to this incidental answer of the witness, no objection was made to it at the time, no further inquiry was made, and therefrom it is just as reasonable to infer that the insurance agent who received the X-ray pictures was one who had insured Anderson against the consequences of an accident, as to infer that he was one who had insured plaintiff in error against the consequences of damages. We are unwilling to assume that the answer of the witness quoted had any appreciable influence in enlarging the verdict in this case or in arousing any degree of passion or prejudice. On the whole, we think the assignment raising the question of excessiveness in the verdict must be overruled.

The following paragraph of the court’s charge is assigned as error:

“Bearing in mind the foregoing definitions and instructions and those hereinafter given you, if you find and believe from the evidence that on or about the 27th day of April, 1916, while plaintiff was walking across the public street in the city of Ft. Worth near where Jennings avenue and Throckmorton street come together, an automobile belonging to the defendant, Tom L. Burnett, being driven by his chauffeur, agent, employé, or representative, at a greater rate of speed than twelve (12) miles an hour, struck plaintiff herein; or if you further find that the driver operating said car at said time and place suddenly turned said car toward the plaintiff and failed to use ordinary care to so guide and direct the movements of same as to avoid striking plaintiff; or if you find that the driver of said car, in approaching the place where plaintiff was injured, failed to use ordinary care to keep a proper lookout on said street in order to discover whether pedestrians or other persons were crossing or about to cross the same; or if you find that the driver of said car, just prior to said injury, either saw or by the exercise of ordinary care could have seen plaintiff, and that plaintiff was in a dangerous situation, in time to have avoided the injury to him by the use of the means at hand, and that, after seeing plaintiff and the condition and position in which he then was, said driver failed to use the reasonable means at his command to avoid injuring the plaintiff; and if you further find that such act or acts or omissions, or either of them, if any, on the part of the agent, employé. or representative of the defendant driving said car at said time and place, were ‘negligence,’ as that term has been heretofore defined; and you further find such negligence, if any, was the proximate cause of plaintiff’s alleged injuries, if any, and you, do not find for the defendant under other instructions herein given you — then your verdict will be for the plaintiff and against the defendant.”

The paragraph of the charge quoted is made the basis of the contention that the court erred in submitting the issue of “discovered peril,” but we do not so interpret the charge. It merely required a finding of one or more of the acts of negligence alleged, and a determination that such act or acts constituted negligence which proximately caused the plaintiff’s injury. It is true that the paragraph embodied the statement emphasized before us that if the driver of the car, just prior to the injury, “either saw or by the exercise of ordinary care could have seen plaintiff and the plaintiff was in a dangerous situation, etc.,” the finding should be for the plaintiff. While, to constitute discovered peril that would relieve the plaintiff from the consequences of contributory negligence on his part, it would be necessary, as now contended, to show that the driver actually discovered plaintiff’s perilous position, if any, and'not merely that he was negligent in a failure to so discover such peril, yet it is manifest, from a scrutiny of the charge, that the court in the paragraph quoted was not attempting to submit the issue of discovered peril. By the charge the failure to exercise due care in discovering the plaintiff’s perilous situation, and the failure to use all available means to avoid injuring him if the driver actually saw or discovered the plaintiff in time to have avoided the injury, are alike made mere elements of the plaintiff’s .case on the general allegations or issues of negligence. In both instances a finding of negligence, and that such negligence was the proximate cause of plaintiff’s injury, was required in order to find for him, and under the charge, even though the finding of the jury should be in favor of the plaintiff on both of those special issues of negligence, the general finding for plaintiff and assessment of damages was conditioned on a further finding that the defensive issues, including the issue of contributory negligence, were all determined adversely to the defendant. This is rendered more certain by reference to other paragraphs of the court’s charge, for instance, in the fifth paragraph, after defining the duty of the plaintiff to exercise ordinary care for his own safety, the jury were instructed that if they believed from the evidence that at the time plaintiff was injured he was guilty of contributory negligence, which proximately caused or contributed to his injury, the finding should be for the defendant. No escape from the conse^ quences of the plaintiff’s contributory negligence, if any, was presented in the court’s main charge.

It was only in a special charge-requested by the plaintiff that the issue of discovered peril was submitted at all, and this special charge is not criticized because of a failure to require actual discovery of plaintiff’s perilous position. The only objections to the special charge referred to now urged are: First, that it does not affirmatively appear that the driver of the car actually realized and saw that the plaintiff was in a dangerous position and failed to exercise the means at hand; and, second, that there was no proof of the distance that would have been required to stop the car, and no proof of the condition of the brakes, and no proof of how the chauffeur could have avoided the collision. Defendant in error, however, testified to the effect that the car approached him at about the speed of 25 miles per hour; that when within a short distance of the curb he noticed the car some 15 feet away from him running very near the curb; that in order to avoid it, as he thought, he stepped back, and as he did so the driver swerved his ear toward him; that he again stepped forward toward the curb, whereupon the driver again swerved the car in his direction and ran over him. The evidence, as we think, clearly indicates that the driver saw Anderson and that he was probably endeavoring to avoid the collision. Otherwise, we would have to give color to the imputation of the plaintiff that the driver was trying to run him down. The sudden decisive swerve given the car by the chauffeur is explainable upon no other theory than that he actually saw plaintiff. The evidence seems strongly to show that at the rate of speed the chauffeur was driving, and from the position in which Anderson was when confronted with the machine, no application of the brakes could have saved him; at least, there is nothing in the evidence indicating that the final collision was the result of any defect of the car or brakes. No explanation of this character was offered in behalf of the plaintiff in error here, notwithstanding the fact, as was admitted on the submission of this cause, the chauffeur was present upon the trial and was not offered as a witness. Presumably both the chauffeur and the plaintiff in error’s daughter were available as witnesses, and could have testified to a moderate rate of speed, or to any other fact or circumstance indicating a want of negligence upon the chauffeur’s part.

It is a familiar principle that, where a party fails to present evidence within his power to produce, the presumption is that the evidence, if offered, would be unfavorable. While it seems to us the ease was complete without resort to the issue of discovered peril, nevertheles we find no reversible error in the submission of the issue. We certainly fail to find any substantial merit in the particular objections urged to the charge submitting it.-

There are some minor questions which we should perhaps briefly mention. One is an objection to the evidence of the witness Tyra, which was to the effect that the driver of the car stated “that he was driving a little fast,” etc., but it appears that the conversation in which the chauffeur made this statement was almost immediately after the accident; that Miss Burnett stated at about the same time that she, previous to the accident, had requested the driver “not to run so fast.” No objection was made to this statement of Miss Burnett. Moreover, a number of witnesses testified to the rapid driving of the car. This fact seems hardly to be disputed; the evidence makes plain, as it seems to us, that the driver at the time was largely exceeding the speed limit, and the statement of the driver to Tyra, objected to, could, in no event, create in the minds of the jury an unfavorable or prejudicial influence on the subject of the car’s speed.

There is a further objection that the court erred in refusing to give a special charge to the effect that, if the jury found that the person driving the car was not at the time an employé or servant of the defendant, they should find for him. The only ground for a contention that this issue was raised is that plaintiff in error testified that the driver of the car was paid by his father. Plaintiff in error admitted, however, that the car was his; that he, with his daughter and his father, constituted the family; that his car and one of his father’s were used indiscriminately, as also was the driver; that the driver and daughter was at the time on their way to plaintiff in error’s office for the purpose of bringing them home to lunch, so that on the whole there seems to be little or no dispute but that the driver, at the time and place in question, was such servant or employé of the plaintiff in error as to render plaintiff in error liable for the consequences of the driver’s negligence. It is altogether improbable, as we think, that, had the issue been submitted, any determination thereof on the part of the jury in plaintiff in error’s favor could reasonably have been made.

There is a further contention that the court should have given a peremptory instruction for the plaintiff in error; but what we have already said, we think, makes it sufficiently plain that there was no error in refusing this instruction.

We conclude, that all assignments of error should be overruled and the judgment affirmed.

BUCK, J.,

concurs in the final conclusions reached, without concurring in some of the language used.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    SCHAFF v. HENDRICH.
    (No. 8933.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 14, 1918.)
    1. Master and Servant <©==>280—Action for Injuries—Evidence—Assumed Risk.
    Evidence held to show that railroad employé, injured while working in roundhouse pit by reason of slippery condition of pit bottom, knew of such condition and realized risk of slipping and falling by reason thereof in performance of his duties.
    2. Commerce <®=*8(6)—State Statutes—Interstate Commerce—Assumed Risk.
    State statutes abrogating defense of assumed risk are inapplicable to actions for injuries to railroad employés engaged in interstate commerce, federal statutes and decisions governing.
    3. Master and Servant <§=»204(1)—Assumed Risk—Federal Employers’. Liability Act.
    Federal Employers’ Liability Act has not abrogated the defense of assumed risk under the common law.
    4. Master and Servant <®=>226(1)—Assumed Risk—Railroad Employé.
    Railroad employé engaged in interstate commerce assumes all ordinary risks incident to employment, but not those arising from railroad’s negligence.
    5. Master and Servant <®=j217(10)—Assum-ed Risk—Railroad Employé.
    Railroad employé engaged in interstate commerce, knowing that machinery is defective, the place of work unnecessarily dangerous, or that proper rules are not enforced, assumes risk thereof, unless he informs employer, who promises to correct conditions.

      6. Master and Servant <⅜=?288(14) — Assumption op Risk — Promise to Remedy Conditions.
    In railroad employé’s action for injuries sustained while engaged in interstate commerce, defended on ground of assumption of risk, foreman’s statement, “Well, I will see,” was insufficient as matter of law to sustain finding of a promise to repair defective condition.
    7. Master and Servant <®=»263 — Assumed Risk — Pleading.
    Employé, suing for injuries and seeking to avoid employer’s defense of assumed risk by employer’s promise to remedy conditions, must specially plead such promise.
    Appeal from District Court, Wichita County ; W. N. Bonner, Judge.
    Action by E. P. Hendrich against C. E. Sehaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellant.
    Nicholson & Fitzgerald, of Wichita Falls, for appellee.
   DUNKLIN, J.

C. E. Sehaff was duly appointed receiver of the Missouri, Kansas & Texas Railway Company of Texas by the United States District Court of the Northern District of Texas, and under and by virtue of the orders of that court he operated the railway of that company, and also that of the Wichita Falls & Northwestern Railway Company of Texas, which latter line had been leased by the railway company first mentioned.

On January 2, 1917, E. P. Hendrich, as an employó of the receiver, was working in the roundhouse of the Wichita Falls & Northwestern Railway Company of Texas, in the city of Wichita Falls, in the capacity of foreman of a tank gang, the duties of which gang included the work of removing wheels from tanks or tenders of locomotives and replacing them with new ones. In order to perform that service the tank would be uncoupled from the engine, then jacked up so that the old wheels or trucks could be removed and replaced with new one's. This work was done over a pit in the roundhouse, spanned by the track over which the locomotive and the tank would be placed. In cleaning the locomotive by blowing it out with steam, water would be discharged into the pit, and in order to get rid of this water a drainpipe was constructed, which led off from the pit. Prior to the accident hereinafter related, this drainpipe had become obstructed to such an extent that the floor of the pit, which was covered with cinders, was rendered wet and slippery to any one working therein in the discharge of the duties of plaintiff’s employment.

On or about the date mentioned above, plaintiff and other members of his tank gang undertook to replace the wheels of one of the engine tanks with new ones, and preparatory to so doing the engine and tank were placed over the pit. The tank was then uncoupled from the engine and jacked up so as to allow the removal of the wheels or trucks thereunder for the purpose of replacing them with new ones. While plaintiff was in the pit and assisting other em-ployés in rolling out the old wheels after the tank had been jacked up, and while pushing on the wheels in order to move them, his foot slipped on the wet cinders in the bottom of the pit, and as a result he fell, his breast striking against the flange of one of the wheels of the truck which he' was then moving.

Hendrich instituted this suit against the receiver to recover damages for personal injuries which he alleged he sustained as a result of said fall, upon allegations that the defendant was guilty of negligence in allowing the bottom of the pit to become wet and slippery, and hence had failed to discharge his legal duty to the plaintiff to exercise ordinary care to furnish him a safe place to work. From a judgment in plaintiff’s favor on a trial before a jury the defendant has appealed.

One of the defenses urged by the receiver was that at the time of plaintiff’s alleged injury he was engaged in duties incident to interstate commerce, and that he could not recover because he had assumed the risks of his injury; but the finding of the jury upon that issue was adverse to him. That issue was submitted to the jury in the court’s charge as a controverted issue of fact.

The first error assigned is to the refusal of the defendant’s request for a peremptory instruction to the jury to find in his favor upon that issue.

The proof showed without controversy that the tank or tender upon which plaintiff was working at the time of his alleged injury was attached to engine No. 220 which, together with the tender, was then, and had been for some time prior thereto, used exclusively in hauling passenger, baggage, and express trains between Wichita Falls, Tex., and towns in the state of Oklahoma; and that such use of the locomotive and tender had been known to plaintiff for more than two years prior to the alleged accident.

That plaintiff knew of the slippery condition of the bottom of the pit and of the risk of slipping and falling by reason thereof in performing the services in which he was engaged at the time of his alleged injury was conclusively proven by his own testimony. He testified; That he was first engaged as one of the yard gang around the same roundhouse in the year 1912, during which year he frequently saw engines blow out steam and water into the pit. During the month of October, 1914. he went to work as a helper on the tank gang, which gang was doing the same work that was being done at the time of his alleged injury; and that he continued in that employment up to the date of the accident, having become foreman of the tank gang in the meantime; and that he was working on the tank of engine No. 220 at the time of the accident. He further testified as follows:

“On the 2d day of January, when I got hurt, I was putting in a new pair of wheels on the tank of this engine, I was doing this because the old ones were reported to be taken out. * * *
“Yes, sir; I had charge of that job, and I had exclusive control of all about it, and how to do it.
“Yes, sir; I did tell those men with me to take those wheels out and how to take them out, but I took them out according to instructions that I had from the foreman. Yes, sir; the foreman was there at the time; he was not right there at the place that I was working at that time, but I took the wheels out as I usually did. That ground had been slippery there as it' then was for some four or five months; I had seen it there during that time; and that evening, when I started to work there to take those wheels out, I saw that the ground was slippery there, and I realized that that ground was slippery at that time. I had known that the drain that drained the pits had stopped up for some six or seven months, and I knew that at that time that I went to work that evening on these wheels, and at that time I knew why the water was out there on those cinders. Still I had not made any complaint to the foreman particularly about it. I had told him that it was wet; I told Varley, the foreman, that it was wet and sloppy, and that it made it slippery, but I did not tell Varley that exactly the day that I got hurt. Yes, sir; I had told Varley that the ground was slippery, X had told him that three or four days beforehand, before I got hurt.
“That place was slippery there all day long that day that I went to work on those wheels, the 2d day of January; and I knew that before I started to work that day, and I knew that it was in that slippery condition that day after dinner when I went to work there to take out those particular wheels. I knew that place was in that slippery condition at the time that X received my orders to do that work there. X knew at that time that it was slippery, and I never said anything to the foreman about it, not on that day; no, sir; but I did go ahead to work. As to whether I realized that I might slip there, will say that I had not studied about that at all. I had not slipped on that ground where it was slippery, not to amount to anything, before; but I had slipped there. At that time I might have known that I might slip again, before I went to work there that way. I do not know, could not tell the jury, how many times I had slipped on that ground there — I could not say. I have slipped there several times, but I have never hurt myself before. I could not give even an approximate answer as to how many times I had slipped and fallen there before, for I do not know.
“Yes, sir; I had taken off wheels just like that before, and I had never hurt myself on the wheels before. X fell a time or two, but I never hurt myself, that is, not on the wheels; X had not before fallen on the wheels while working on the wheels, but on other work, while I was using the pinch bar, or pry bar, something like that.
“My slipping and falling and striking my breast on the flange of the wheel was caused by the wet ground there; that is what caused me to slip.
“Yes, sir; I had removed wheels there when the ground was dry and put in new wheels; and I had never slipped that way that I know of, when the ground was dry.
“Q. Then that condition around the pit was in no worse condition than it had been theretofore? A. Not particular, no.
“Q. You could see the ground there and the condition that it was in? A. Yes, sir.
“Q. It was not dark in there that day? A. No; it was day.
“Q. Was light? A. Yes, sir.
“Q. In plain view, big open doors there? A. Yes, sir.
“Q. Right there, a few feet from you? A. Yes, sir.
“Q. You could see the ground and the condition it Was in? A. Yes, sir.
“Q. You could see that it was slippery on that day? A. Yes, sir.
“Q. You could see that it was slippery before you began to move those wheels? A. Yes, sir.
“Q. Still you went ahead and went on moving them; knowing that the ground was slippery and knowing that your feet were liable to slip, still you went ahead? A. Yes, sir.
“Q. And you knew that your feet were liable to slip in handling those wheels? A. Yes, sir.
“Q. And still in the face of that you did go ahead and did move them and slip? A. Yes, sir.
“As to having slipped on that ground before, will say that it is true that I had removed and put back a large number of wheels during the months that I had been working there, and I had never slipped or hurt myself before this time, in removing wheels. I had never seen anybody slip and hurt themselves during that time, either while rolling out wheels. I have seen fellows get hurt there of course, but I have never seen them get hurt removing wheels that I know of.
“As tank foreman of that company it was not part of my duty to see that the pits were kept free from water, and it was not a part of my duty to see that the ground around there where I had to work was in proper condition. I had nothing to do with that. I was supposed to tell the foreman if there was anything defective; they had a bulletin paper there that said ‘Please notify your foreman.’ Yes, sir; I told the foreman, Mr. Yarley, that the pit was full, or partially full, of water, and that the drainpipe in the bottom was clogged up. I not only told him myself, but several others told him also. I know of my own personal knowledge that others told Mr. Yarley about this pit not being drained. "When I notified Mr. Varley about the condition of the pit, he simply said, ‘Well, X will see,’ and that is all the information that I got out of him. But when the foreman, Mr. Varley, told me that, I thought that he would fix it. At that time that day that I went to roll those wheels out, I did not know, and I did not have any idea that I would get hurt by slipping on that ground.”

It is well settled by the authorities that where the servant of a railway company is injured in the performance of a duty pertaining to interstate commerce, the state statutes, abrogating the defense of assumed risks under the common law, do not apply, but the federal statutes and decisions govern. It is also well settled that the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) has not abrogated the defense of assumed risks under the common law, but that such defense is still applicable.

The common-law rule controlling in such cases was announced by our Supreme Court in T. & N. O. Ry. Co. v. Bingle, 91 Tex. 288, 42 S. W. 971, in the following language:

“The servant by entering the employment of the master assumes all the ordinary risks incident to the business, hut not those arising from the master’s neglect. It is the duty of the master to exercise ordinary care to furnish him a safe place in which to work, safe machinery and appliances, to select careful and skillful co-workers, and in case of a dangerous and complicated business to make such reasonable rules for its conduct as may be proper to protect the servants employed therein. The servant has the right to rely upon the assumption that the master has done his duty; but if he becomes apprised that he has not and learns that the machinery is defective, the place unnecessarily dangerous, or that proper rules are not enforced, he assumes the risk incident to that condition of affairs, unless he informs the master and the latter promises to correct the evil. In this latter event, so long as he has reasonable grounds to expect and does expect that the master will fulfill his promise, he does not by continuing in the employment assume'the additional risk arising from the master’s neglect. If he then be injured by reason of that neglect, he may recover, provided it be found that a man of ordinary prudence under all the circumstances would have encountered the danger by continuing in the service. This we understand to be the rule in the English courts. It is the rule in the Supreme Court of the United States, and is supported by the weight of authority.”

For other decisions in which the common-law rule so stated was applied in cases where no question of interstate commerce was involved, see Texas & Pacific Ry. Co. v. Lewis, 133 S. W. 1086; Houston & Texas Central Ry. Co. v. Alexander, 102 Tex. 497, 119 S. W. 1135; G., C. & S. F. Ry. Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669; St. L. S. W. Ry. Co. v. Hynson, 101 Tex. 546, 109 S. W. 929.

For decisions holding that the common-law rule of assumed risk has not been abrogated by the federal Employers’ Liability Act, but is applicable in cases where an em-ployé seeks to recover for an injury while he is engaged in the handling of interstate commerce, see Freeman v. Powell, 144 S. W. 1033; T. & P. Ry. Co. v. White, 177 S. W. 1185; Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Pedersen v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1129, Ann. Cas. 1914C, 153.

It will be noted in the testimony of the plaintiff, set out above, that when he notified Mr. Varley, the foreman in charge of the roundhouse, of the accumulation of water in the pit, he simply replied, “Well, I will see,” and that was all the information he received from Mr. Varley concerning the condition complained of. We conclude that such language used by Varley was insufficient as a matter of law to support a finding of a promise to remedy the slippery condition of the floor of the pit, and thereby to bring plaintiff’s case within the exception to the general rule of assumption of risks, noted in the quotation from Railway Co. v. Bingle, supra. See, also, G., H. & S. A. Ry. Co. v. Drew, 59 Tex. 10, 46 Am. Rep. 261.

Furthermore, plaintiff filed no reply whatever to defendant’s plea of assumed risk by reason of plaintiff’s knowledge of the slippery condition of the floor of the pit and of the risk incident thereto prior to and at the time he undertook to move the trucks, and there was no pleading of either party presenting the issue of any promise of the master to remedy the slippery condition of the pit, and that the plaintiff relied upon such promise, and was thereby induced to continue in the master’s employment after knowledge of such dangerous condition of the pit. Such a promise would have been in the nature of a confession and avoidance, and it was plaintiff’s duty to plead it if he intended to invoke relief by reason thereof. Further still, the trial court did not submit to the jury any issue to bring the’ case within the exception to the common-law rule, nor did plaintiff request the submission of such an issue, nor has he filed any briefs in this court suggesting any reason why the case would come within the exception noted.

In view of what we have said it follows that the assignment of error now under discussion should be sustained, and by reason thereof the judgment of the trial court should be reversed, and judgment should be here rendered in favor of the appellant without reference to other assignments, which, therefore, it will be unnecessary to discuss; and it is so ordered.

Reversed and rendered.
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author: BUCK, J.

text:
    DREW v. AMERICAN AUTOMOBILE INS. CO.
    (No. 8908.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 2, 1918.
    Rehearing Denied Dec. 7, 1918.)
    1. Jury <§=>34(3) — Impairment op Right — Evidence — Questions op Fact.
    A strong preponderance of evidence on one side or the other is not sufficient to justify a trial court in denying the right of trial by jury.
    2. Jury ©=34(3) — Impairment op Right — Evidence — Questions op Law and Fact.
    In view of Const, art. 1, § 15, preserving the right to jury trial, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2024, limiting the number of new trials, it is the province of the jury to determine the credibility of witnesses and the weight of testimony, and the court may not assume its functions by deciding that testimony is entitled to no credit because overborne by contradictory testimony, or that it is so contradictory to circumstances and proof as to he improbable.
    3. Insurance <§=5668(3) — Actions on Policy —Cancellation op Provisions — Question op Fact.
    In a suit on an automobile insurance policy, where the car was destroyed in a collision, evidence as to whether or not, subsequent to the issuance of the original policy, the collision features therein had been canceled by mutual agreement between insured and insurer, held in conflict and to make a question for the jury.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Action by (Mrs. S. M. Drew, administratrix of the estate of Mrs. Willie Mae Jackson, against the American Automobile Insurance Company. From an instructed verdict for defendant, plaintiff appeals.
    Reversed and remanded.
    Simpson & Estes and A. L. Moore, all of Ft. Worth, for appellant.
    J. W. Kearby, of Ft. Worth, for appellee.
   BUCK, J.

Mrs. S. M. Drew, administra-trix of the estate of Mrs. Willie Mae Jackson, filed suit against the American Automobile Insurance Company of St. Louis for recovery under a policy issued on an automobile owned by B. A. Jackson, the husband of Mrs. Willie Mae Jackson. Plaintiff alleged that she was the duly appointed administratrix! of the estate of Mrs. Jackson; that E. A. Jackson died April 24, 1916, and that his wife, Mrs. Willie Mae Jackson, died subsequent to his death; that E. A. Jackson died intestate, and that his wife was his sole heir, and that subsequent to the wife’s death plaintiff was appointed administratrix of her estate ; that on March 29, 1916, the defendant issued to E. A. Jackson its certain policy of insurance, providing, among other things, insurance against loss to or damage of the automobile, by collision, and that said policy was in full force and effect in all of its provisions at the time of E. A. Jackson’s death; that E. A. Jackson was killed on said April 24, 1916, by reason of being run into and over by a railroad train, and that in said accident the automobile, in which he and his wife were riding and upon which the policy had been issued, was destroyed. . She further alleged said automobile, at the time of said collision and destruction, was of the reasonable value of $1,500, and was at said time owned by E. A. Jackson, and that all the conditions required by the terms of said policy had been duly performed; that thereupon defendant became liable to plaintiff for the value of the automobile so destroyed, and had refused to pay for same.

Defendant answered by general demurrer; and further pleaded that, while it had issued the policy upon the automobile in question, and said policy contained a provision of insurance against loss by reason of a collision, yet that subsequent to the date of its issuance E. A. Jackson had declined to accept the policy with the clause and provision as to the insurance against loss or damage by collision, and had requested that that feature of the policy be eliminated and canceled, and that he be allowed credit for the amount of the premium charged for this particular feature of the insurance, to wit, $67; that thereupon the defendant did cancel said feature and provision of the policy, and did give said 'Jackson credit flor the $67 charged therefor, and that the “rider” providing for the insurance against loss or damage by collision was removed from the policy by Jackson’s agent, and returned to defendant’s agents; that both the defendant’s agent, O. H. Walton, and the insured and his agent, believed and understood that the “rider,” removed and separated from the policy, contained the only provision as to insurance against collision, and that it was the intention of both the insurer and the insured that the feature of insurance against collision should be canceled, and that the defendant company would not be liable for any loss suffered by said Jackson under the collision feature of said policy. It was further alleged that the provision as to insurance against loss or damage by collision, contained in the regular form of the policy, and not included in the “rider” which had been attached, at the time of issuance, to said policy and thereafter removed, was overlooked by both the insured and his agent, and the insurer’s agents, and all parties understood and believed that the written contract, as it appeared after the removal of the “rider,” contained no collision insurance; that the defendant ratified and affirmed the action of its agents upon this understanding and belief.

Plaintiff, in a supplemental petition, denied tile allegations made in defendant’s answer as to tile elimination or the cancellation of the collision insurance feature.

Upon trial plaintiff introduced evidence to show that the automobile had been destroyed ¡by reason of a collision with a railroad train; that it was a complete wreck; that it was of the value immediately before this destruction of $1,350 to $1,400; that after the collision it was mere “junk”; that E. A. Jackson and his wife were both killed by the accident, Mr. Jackson dying shortly before his wife. It was agreed that Mrs. Drew was the duly appointed, qualified, and acting ad-ministratrix of the estate of Mrs. Willie Mae Jackson, deceased, wife of E. A. Jackson, deceased. It was shown that said administra-trix was custodian of the books, insurance policies, and other records belonging to the estate, and that the policy as sued upon contained a provision that, in case of loss or damage to the automobile by reason of a collision, the measure of damages recoverable by the insured against the insurer was the value of the automobile at the time of the collision.

The defendant’s testimony tended strongly to show that J. A. Phinney. the employé and agent of E. A. Jackson, and acting under the express instructions of said Jackson, had requested defendant’s agents, Mitchell, Gartner & Walton, to eliminate and cancel the collision feature, and that the “rider” having reference to this feature, but apparently only in the way of limitation, had been removed; that it was the intention, however, of E. A. Jackson and his agent, and of defendant’s agents, that the policy as originally issued should be changed and the collision feature eliminated. From an instructed verdict in favor of defendant the plaintiff has appealed.

The only question presented for our consideration is as to whether, under the facts and pleadings disclosed, the court properly gave a peremptory instruction. We are of the opinion that when plaintiff introduced the evidence as to her capacity to bring suit, as to the issuance of the policy containing the provision against loss or damage by reason of collision, as to the destruction of said automobile, and the value thereof at the time it was destroyed, especially in connection with other circumstances hereafter shown, she made a prima facie case.

There was no denial on defendant’s part that the policy, as introduced in evidence, contained a provision against loss or damage by collision, but its only defense was that such provision had been left in the policy by mutual mistake. The preponderance of the evidence may be said to have been in favor of defendant’s plea, yet a strong preponderance of evidence on one .side or the other is not sufficient to justify a trial court in denying the right of trial by jury. A party having introduced sufficient evidence to support a verdict in his favor is entitled to have the issue submitted, no matter how strong the contradictory evidence may be; and in determining this question an appellate court must consider the evidence in its most favorable aspect for the plaintiff in error or appellant, disregarding conflicts and contradictions.

It is particularly the province of the jury to determine the credibility of witnesses and the weight to be given to their testimony, and for the court to decide that the testimony is entitled to no credit because overborne by contradictory testimony, or that it is so contrary to circumstances in proof as to render it improbable, is to improperly assume the function of the jury and is reversible error. Harpold v. Moss et al., 101 Tex. 540, 109 S. W. 928; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323.

As was said by Judge Hunter of this court in the case of Bowman v. Texas Brewing Co., 17 Tex. Civ. App. 446, 43 S. W. 808:

“If the jury are ‘the exclusive judges of the facts proved,’ a judge has no legal right to invade their exclusive jurisdiction. Their powers, in our system of jurisprudence, are as high, as sacred from invasion, and as well defined as his; and he has no more right to assume the performance of their exclusive functions than they have to arrogate the performance of his. Of course, he may grant a new trial, if in his judgment the evidence does not sustain the verdict; 'but, where there is any evidence to support the cause of action or defense pleaded, the issue of fact must be submitted to the jury. * * * And so regardful is our law of the rights of the jury and the sanctity of its verdict that only two new trials can be granted by the judge to each party, except where the jury have been guilty of misconduct, or erred in matter of law.”

See Gaunce v. Ry. Co., 20 Tex. Civ. App. 33, 48 S. W. 524; Shifflet v. Ry. Co., 18 Tex. Civ. App. 57, 44 S. W. 918; Taylor et al. v. Flint et al., 24 Tex. Civ. App. 394, 59 S. W. 1126; Constitution of Texas, § 15, art. 1; Vernon’s Sayles’ Texas Civil Statutes, art. 2024.

Appellee presents a counter proposition to appellant's first assignment, as follow.s:

“Where there is no conflict in the evidence, the court may assume the fact thus established as proved, in cases in which but one conclusion could be reached from the evidence;”

and cites in support of the proposition a number of cases, among others Gulf Ry. v. Cornell, 84 Tex. 541, 19 S. W. 703; Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40; Teal v. Terrell, 58 Tex. 257; Mitchell v. De Witt, 20 Tex. 294; Hedgepeth v. Robertson, 18 Tex. 858. The holding in the cited cases supports appellee’s counter proposition, but the announcement of the law and rule of practice is, in our opinion, not applicable to the case before us.

In addition to the testimony introduced by plaintiff, above mentioned, which, in our opinion, presented a prima facie right to recover, there are certain other features of testimony in the record which the jury had the right to consider in order to determine whether defendant’s contention, that a change in the policy had been made at the request of the insured and with the consent of the insurer, was established or not. For instance, Mrs. Drew testified that after her qualification as an administratrix, of course some time subsequent to the death of E. A. Jackson, and further removed from the time when defendant alleges the change in the policy to have been requested by E. A. Jackson and made by it, a bill for the full amount of the premium, to wit, $149, including the $67 charged for the collision feature of the policy, was sent by the agents of the insurance company to the administratrix for payment; that there was no credit on this bill or statement of the $67; and that later she returned the claim to the insurance agents to have it verified, and that said bill was not thereafter returned to her.

M. B. Simpson testified that he returned from New Fork about June 12th or 13th, and that upon his return Mrs. Drew showed him •the claim of the insurance company, which, according to the best of his recollection, was for $149 premium on the policy, and that the same was returned to the agents for verification; that there was no credit on said bill. He further testified that he thought he talked with Mr. Walton, one of defendant’s agents, before he (witness) went to New York, and that said Walton told him that the collision clause had been canceled.

O. W. Harris, office manager and bookkeeper for the administratrix, testified that J. A. Phinney, who had occupied a similar position with E. A. Jackson, left the office the day the witness took charge and turned over everything to the latter; that E. A. Jackson was killed on April 24th, and witness -took charge of the office on May 13th; that one of the bills that was in the office at the time was that of Mitchell, Gartner & Walton against the estate of Willie Mae Jackson, and the charge on that bill for the premium on the insurance policy in question was $149, with no credit as to that premium ; he stated that there was a balance on the bill that had been brought down, presumably for other insurance, and this item was added to it, and then there was a credit of probably $50; he called upon the agents to .verify this bill, but later heard nothing further from it; that the conversation he had with the agents with reference to this matter was about June 13th or 14th.

D. H. Kernaghan testified that he was an accountant, employed to audit the books and records of the Jackson estate; that there was an account on these books between E. A. Jackson and Mitchell, Gartner & Walton, and that there was a charge on -that account for the premium on the policy in question, showing E. A. Jackson as the assured, in the amount of $82, on March 29, 1916; that there was no entry in any of the books examined or audited by him where E. A. Jackson took credit for $67 on account of the cancellation of any part of this policy; that in keeping books it is customary for bookkeepers, where a bill has been rendered for the sum of $149, and subsequent thereto there is a credit of $67 allowed on the bill, leaving a balance of $82, to enter on the books the resultant amount of $82, but that if he were keeping the books he would show the entire charge and the subsequent credit; that the entries on the books covering this matter were in Mr. Phinney’s handwriting.

The evidence further showed that, prior to his employment by E. A. Jackson, J. A. Phinney had been employed by J. W. Mitchell, who subsequently became a member of the firm of Mitchell, Gartner & Walton, and that he worked for said Mitchell for about six years; that his relations with the firm of Mitchell, Gartner & Walton were pleasant and nothing more; that the notation made in red ink on the policy, to wit, “Expires 3 — 29—17,” and the further notation in red ink, “$82.00,” written just above the typewritten figures “$149.00,” and the further notation written on the back of the policy of “balance $82.00,” was written by him (Phin-ney) when he got the correct figures with reference to the cancellation of the collision indorsement. He testified:

“The corrected figures on this policy are in my handwriting. The original figures showed the premium $149.00, and that has been changed so as to show the premium $82.00, the typewritten figures ‘$149.00,’ being erased and the pen and ink figures ‘$82.00’ being substituted. I drew a pen through the typewritten figures and put the ink figures above.”

We think enough of the evidence has been quoted and referred to, to show that there was a conflict with reference to whether or not there had been, subsequent to the issuance of the original policy, a cancellation agreed upon by both the insured and the insurer, and that upon this feature the state of the evidence makes the case a proper one for the jury, and that the court erred in directing a verdict.

For the reasons stated the judgment is reversed and the cause remanded.
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author: LANE, J.

text:
    HOUSTON E. & W. T. RY. CO. v. HICKMAN.
    (No. 7628.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1918.
    Rehearing Denied Jan. 9, 1919.)
    1. Master and Servant <§=>125(8) — Negligence — Defects—Presumption.
    Without proof of master’s actual knowledge of the existence of a defect in appliances, etc., such defect must have existed for such length of time as to raise the presumption of negligence in failing to discover it by reasonable inspection.
    2. Master and Servant <§=>278(7) — Detects in Equipment — Negligence—Sufficiency of Evidence.
    In employe’s suit against railroad for injury in operating lever controlling interlocking plant at junction of tracks, evidence held, to sustain jury’s finding that failure of lever to work was due to railroad’s negligence in constructing plant defectively, and in thereafter maintaining it in its defective condition.
    3. Master and Servant <§=>276(6) — Negligence — Proximate Cause — Evidence.
    In employe’s suit against railroad for injury in operating lever controlling interlocking plant at junction of tracks, evidence held sufficient to sustain jury’s finding that failure of the lever to work was proximate cause of injury.
    Error from District Court, Harris County; Henry J. Dannebaum, Judge.
    Suit by L. J. Hickman against the Houston East & West Texas Railway Company. Verdict and judgment for plaintiff, and defendant brings error.
    Affirmed.
    Raker, Botts, Parker & Garwood and Mc-Means, Garrison & Pollard, all of Houston, for plaintiff in error.
    Sam, Bradley & Eogle and Fred R. Swit-zer, all of Houston, for defendant in error.
   LANE, J.

L. J. Hickman brought this suit against the Houston East & West Texas Railway Company, claiming that he had been injured in operating a certain lever controlling an interlocking plant at the junction of the track of the defendant company with the tracks of the Houston Belt & Terminal Railway Company and the Trinity & Brazos Valley Railway Company, while in the employment of the defendant company, and that he had also, by reason of such injuries, incurred certain medical and other expenses. Plaintiff alleged, among other things:

“That the defendant was on and about the 20th day of October, 1912, engaged in the business of operating trains and cars over a railway track maintained and owned by it in the city of Houston, in Harris county, Texas; that on or about the said date the defendant was the owner of said railway track, engines, and cars, and carried on the business of common carrier be- | tween the city of Houston, Texas, and other I points within the state of Texas; that in connection with and incident to the above-mentioned business of operating the said railway the defendant owned, operated, maintained, and controlled a system of switches, derails, lights, and other machinery, tools, and apparatus, known as and called an interlocking plant, located in the city of Houston, Texas, near the crossing of defendant’s railway track with the track of the Houston Belt & Terminal Railway Company and the Trinity & Brazos Valley Railroad Company, in the city of Houston, Texas.
“That the s^id switches, derails, and lights and signals were on the said date operated and manipulated by a system of wires, lever, and rods and machinery, which said wires and rods ran along the railway track of the defendant company; the said wires being connected at one end with a mechanical device, and at the other end connected with a lever stationed in the towel’, so that what is known as the ‘long-distance signal’ could be operated so as to show a stop signal, or a clearance, according as the lever was thrown in the tower.
“That one system of the said rods 'running along the said track was connected at one end with what is known as the ‘home signal,’ and at the other end was connected with a lever stationed in the said tower, so that the signal could be thrown at a clearance or stop, according as the lever was thrown.
“That one system of the said rods running along the defendant’s railway track was at one end connected with certain machinery, and at the other with a lever in the tower, so that by throwing the lever in the tower to a certain position the machinery was set in motion, which would cause the derail (an opening in the defendant’s railway track) to open or close according as the lever in the tower was operated; that on or about the said date there was stationed on the long-distance signal and home signal lights, and by the operation of the levers in the tower these lights would have reflected a stop or clearance signal, according as the signal was worked, provided the interlocking plant had been constructed and maintained in the proper manner; the object of the entire system being that the operator in the tower could, by the operation of the lever, raise or lower the long-distance signal and home signal, and open or close the opening in the defendant’s track (called the derail).
“That on or about said 20th of October, 1912, plaintiff was employed by the defendant as a towerman, in the above-mentioned tower; his duties under his employment being that he should be stationed in the said tower, operate the levers, and by means thereof raise or lower the above-mentioned signals, and open or close the, said derail when necessary so to do, to let the defendant’s engines, cars, and trains proceed over the crossing of the other two mentioned railroad tracks, and proceed over the derail or opening in the defendant’s track. * * *
“That said derailing device was defective in that the wire leading to the long distance signal was not properly supported and was not maintained in the proper position with reference to the other parts of the machinery so that said wire was in danger of becoming and did become entangled in the other parts of the machinery controlling and controlled by the derailing device, so that, in order to close said derail, it became, necessary to cut, mash, or break said wire before said derail could be closed and said train permitted to pass along and over the track at the point of said derail in safety. Defendant was further negligent in the construction of said plant, in that the rod or bar which protruded beyond this point along which the wire leading to the distance signal passed at said derailing device was too short, so that said wire could pass over the end thereof and thus become entangled in the slot or notch in said rod or bar, and prevent or hinder the closing of said derail, and rendering it necessary to cut, break, or mash said wire in two in order that said derail might be closed.
“That the defendant company failed to use ordinary care in providing the plaintiff with reasonably safe and suitable appliances, and failed to use ordinary caTe to see that the same were kept in a reasonably safe and suitable condition, in that the defendant company negligently constructed and maintained said interlocking plant in a defective manner and condition, by reason of which said plant failed to operate, as particularly set out in the foregoing paragraph; that the defect in the construction and maintenance of said plant, as plaintiff believes, was as follows: That one of the iron rods which was connected with said derailing device had a notch in it in such manner and place that the wire controlling the distance signal and running along said track of defendant was liable to drop into said notch in such manner as to prevent or seriously interfere with the closing of said derail, and that the wire running along defendant’s railway track, and connected with the above-mentioned distance signal, was so constructed and maintained that there was danger of its being misplaced and drop into said notch, and thus prevent the closing of said derail by the operation of said levers; that upon the occasion of plaintiff’s said injuries said wire connected with said distance signal did become misplaced, and dropped into said notch in the rod controlling and operating said derail, by reason of which said machinery and rod connected with and controlling said derail would not move in a proper position for the derail to close.
“That the said injuries and damages suffered by the plaintiff were and are the direct and proximate result of the carelessness and negligence of the defendant, its agents and employés, as above set out in detail, and that the said negligence and carelessness is and was the direct and proximate cause of the said injuries received by the plaintiff, and the damages suffered and to be suffered by the plaintiff on account thereof.”

Plaintiff’s prayer was for the recovery of $50,000.

Defendant answered by general denial, specially alleging contributory negligence on the part of plaintiff.

The case was submitted to a jury upon special issues, in answer to which they found:

(1) That the lever in the interlocking plant failed to work, as alleged by plaintiff, at or about tha time in question.
(2) That such failure was due to the distance signal wire catching in the notch of the derail bar.
(S)That the failure of the lever to work was due to the negligence of the defendant in constructing or maintaining the interlocking plant.
(4) That the plaintiff received an injury on the occasion in question substantially as alleged by him.
(5) That the failure of the' lever to work was the proximate cause of plaintiff’s injury.
(6) That the plaintiff was guilty of contributory negligence in failing to signal the train to stop, when he discovered that the derail could, not be operated by the ordinary use of the lever.
(7) That plaintiff was guilty of contributory negñgence in attempting to pull the lever in the manner claimed by him, believing that either the wire or some other foreign substance had caught in the notch of the derail bar.

In answer to special issue No. 7 the jury found the amount of damages sustained by plaintiff to be $1,500, and by answer to special issue No. 8 found that such damages should be diminished, by reason of plaintiff’s contributory negligence, in the sum of $500.

Upon said verdict judgment was entered for plaintiff for $1,000, interest, and costs, from which the railway company has appealed.

The only assignment of appellant is in effect that the verdict of the jury is not susr tained by the evidence, and is against the great weight and preponderance of the evidence, and that the court erred in refusing to instruct a verdict for defendant, as requested by its special charges 1, 2, and 3.

Appellant’s main contention, if not the only one, is that, if it be conceded that there was a defect in the interlocking plant which allowed the distance signal wire to catch in the notch or slot of the derail bar, and that it did so catch and result in the injury to appel-lee, it does not follow that the defendant was guilty of actionable negligence, unless it be shown that appellant had either actual or constructive knowledge of 'such defect, and that the appellant was negligent in not knowing of it, or that there were facts or circumstances in evidence raising the presumption of negligence upon the part of appellant in failing to discover the defect and make repairs between the time the plant became defective and the time plaintiff was injured.

As stated by appellant in its brief, to make its contention clearer, it says: That in the absence of proof of actual knowledge upon the part of appellant of the existence of the defect, such defect must have 'existed for such length of time as to raise the presumption of negligence upon the part of defendant in failing to discover it by a reasonable inspection. In support of this contention it cites Thompson’s Law of Negligence, vol. 4, § 3864; Railway v. Endsley, 103 Tex. 435, 129 S. W. 342; Railway v. Kowsikowsiki, 103 Tex. 173, 125 S. W. 3; Street on Personal Injuries, § 132, p. 227; Manson v. Eddy, 3 Tex. Civ. App. 148, 22 S. W. 66; Gamer v. Gammage, 162 S. W. 980; Railway v. Jones, 103 Tex. 187, 125 S. W. 309, and other cases. We think the cases cited sustain the contention, and we know of no eases holding to the contrary.

This contention, we think, is conceded by counsel for appellee, but this concession does not relieve appellant from liability to appellee for injuries suffered by him, since he pleaded and we think showed by the evidence that the interlocking plant was negligently constructed, and as so constructed by appellant was negligently maintained ever since, and that by reason of such defective construction and maintenance appellee was injured. The undisputed evidence shows that there was a notch or slot in the derail bar into which the wire connecting the lever in the tower with the distance signal had at times fallen, and that when it did so the lever in the tower could not be operated without great force, if at all. It was also shown that a like device, constructed in the same manner as the one in question, on the opposite side of the tower, had the same structural defect as the one under consideration, and that the wire in that device had frequently dropped into the notch or slot in the derail bar, and that the wire had to be removed before the lever in the tower could be operated.

That the lever in the interlocking plant under consideration failed to work at the time of the alleged injury of appellee, and that such failure was due to the distance signal wire catching in the notch of the derail bar, are undisputed facts, and we think the evi-dénce amply sufficient to support the finding of the jury that the- failure of the lever to work was due to the negligence of appellant in constructing said plant defectively and in maintaining the same in its defective condition, and that the failure of the lever to work was the proximate cause of plaintiff’s injury.

It is apparent from what has been said that we think the evidence is sufficient to support the verdict of the jury and the judgment rendered. The judgment of the trial court is therefore affirmed.

Affirmed.
      <§=>kor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    BURCH v. FIRST GUARANTY STATE BANK OF QUANAH et al.
    (No. 1421.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1918.
    Rehearing Denied Jan. 8, 1919.)
    Usury @=140 — Actions for Penalties — Parties Entitled to Sue.
    The maker of notes who has paid nothing thereon cannot sue the payee for the penalty for charging usury imposed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4982, where another has assumed payment of the notes; such action being maintainable only by the party paying the usurious interest or his legal representatives.
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Suit by John C. Burch against the First Guaranty State Bank of Quanah and others. From the decree, plaintiff appeals.
    Affirmed.
    J. A. Clarke, of Quanah, for appellant.
    Marshall & Perkins and M. M. Hankins, all of Quanah, for appellees.
   HALL, J.

This is a suit to recover the penalty for charging and collecting usury, as provided by the statutes of this state. Appellant sued J. A. Radford, J. A. Hughes, and the First Guaranty State Bank of Quanah, alleging in substance in the first count of his petition: That he made arrangements with appellee bank for a loan of $3,400, with which to purchase from Mrs. Myers 170 acres of land at $20 per acre. That he was to pay 10 per cent, per annum upon the money loaned, and in addition pay $500 as compensation to the said bank or to defendants Radford and Hughes, who were the president and cashier, respectively, of said bank, for the loan. That, according to the agreement, appellant executed his eight promissory notes as follows: One for $500, one for $314.98, and the other six for $566.67 each. All of said notes except the one for $314.98 bore interest at 8 per cent, per an-num from date. That the one for $314.98 bore interest at 10 per cent, per annum from maturity. That said last-named note represented 2 per cent, interest on the entire series of notes, resulting in 10 per cent, interest upon the sum loaned, including the $500 overplus. That the note for $500 and the one for $314.98 matured November 6, 1917. The first two notes for $566.67 matured November 6, 1918 and 1919, respectively, the remaining four notes being payable on or before ’November 6, 1920, 1921, 1922, and 1923, respectively. That all of said notes were payable to the order of Mrs. Myers, and by her indorsed without recourse to the defendant bank. That the' six notes for $566.67 each represented the principal amount of $3,400, borrowed by appellant, and that the note for $500 was wholly without consideration and represented the amount agreed to be paid to appellees Radford and Hughes for procuring the loan for him. That Miss Jenn Word had purchased the said land from appellant since the execution of the notes, and as part of the consideration for the property had assumed payment of all of the notes, and that on the 22d day of November, 1917, she had paid $2,267.26, which was applied to the payment of the $500 note, $314.98 note, and the first two notes for $566.67 each, and one year’s accrued interest on the other four notes. That of this total payment only $1,-133.34 was applied to the payment of the principal, and that the remainder, viz. $1,-133.92, was applied to the payment of usurious interest. By the second count appellant, pleading in the alternative, alleged that, if he is mistaken in his belief that the appellee bank charged and collected usury from him, then he alleges that appellees Hughes and Radford, either for themselves or for third parties, whose identity they failed to disclose to him, charged and collected usury as set forth dn his first count, as above mentioned. He prayed for judgment for double the amount of usurious interest paid. Appellee bank answered, alleging that it did not own any of the notes except one for $566.67, and adopted the answer of its codefendants, Rad-ford and Hughes. „ Radford and Hughes answered, alleging that the bank owned and collected one of the notes for $566.67, and that all of the other notes were owned and held by O. S. Dunbar, Z. T. Williams, and E. H. Hughes, residents of the state of Kentucky ; that said Radford and Hughes had no interest in said notes, and that appellee Hughes acted as agent for the Kentucky lenders in negotiating and collecting said loan and the interest paid thereon; that the note for $500 was not given to represent the identical amount agreed to be paid appellees as a commission for procuring the loan for appellant, but that the agreement was that appellant should execute notes to the amount of $3,900 for the $3,400 in money; and that the only reason that the first note was made for $500 was that appellant insisted that he could only pay $500 on the principal of the first year and wanted to make the balance payable in equal annual installments; and that the $500 note was as much a “principal” note as was either of the $566.67 notes. The jury found that none of the notes paid by Miss Word represented usurious interest, and that neither the bank nor Radford and Hughes received or collected either, directly or indirectly, any of the money paid by Miss Word in settlement of the notes introduced in evidence; that the $500 included in the notes given by appellant to Mrs. Myers was intended as a commission or compensation to the defendants Radford and Hughes for their services in procuring the money for plaintiff to buy the land.

The case is submitted to us under a number of assignments, but we deem it unnecessary to consider them in detail. Article 4982, Vernon’s Sayles’ Civil Statutes, upon which the action is based, is:

“If usurious interest, as defined by the preceding articles, shall hereafter be received or collected upon any contract, either written or verbal, the person or persons paying same, or their legal representatives, may, by action of debt, institute in any court of this state having jurisdiction thereof, in the county of the defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where parties paying same reside when such contract was made, within two years after such payment, recover from the person, firm, or corporation receiving the same, double the amount of such usurious interest so received and collected.”

The evidence shows without controversy that Miss Word, who purchased the land from appellant, has made the only payment upon the Indebtedness evidenced by the eight notes executed by appellant to his vendor, Mrs. Myers. It will be noted that the statute provides that the suit to recover the penalty may be maintained only by the party paying the usurious interest or his legal representatives. It has been held in this state that even sureties do not occupy such a position as entitles them to recover the penalty, but may plead usury and have the principal of the debt credited with the usurious interest paid. Roberts v. Coffin, 22 Tex. Civ. App. 127, 53 S. W. 597; Titterington v. Murrell, 90 S. W. 510. When Miss Word purchased the land of appellant and assumed payment of the eight notes, she became the principal debtor, and appellant was thereafter a surety. The law seems to be well settled in this state, as prescribed by the statute, that only the party paying the usurious interest, or his legal representatives, may sue for the penalty. Thom v. Bank, 191 S. W. 148; Braly v. Connally, 180 S. W. 916; Cassidy v. Mortgage Co., 27 Tex. Civ. App. 211, 64 S. W. 1030; Trabue v. Cook, 124 S. W. 455.

Since appellant is not entitled under the statute to maintain the suit, it is unnecessary for us to inquire further into the merit of the remaining assignments. They are all therefore overruled, and the judgment is affirmed.
      ®=3For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    OGG et al. v. LOYD.
    (No. 411.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1918.)
    Appeal and Ebbob <S=w1133 — Absence op Statement op Facts, etc. — Extent op Review.
    There being no statement of facts, bill of exception, or assignment of error in the record, judgment will be affirmed, where no fundamental error is disclosed.
    Error from Hardin County Court; W. S. Parker, Judge.
    Action by Nancy Loyd against T. A. Ogg and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.

      M. S. Duffle, of Beaumont, and J. A. Pelt, of Sour take, for plaintiffs in error.
    Singleton & Bevil, of Kountze, for defendant in error.
   HIGHTOWER, C. J.

This cause comes here on writ of error from the county court of Hardin county. Defendant in error was plaintiff below, and had judgment against plaintiffs in error for $75, that- amount being the value of two cows, together with interest thereon, as prayed. We have been unable to find a statement of facts, bill of exception, or an assignment of error in the record. Neither is there disclosed by the record any fundamental error.

The judgment of the lower court will therefore be affirmed; and it is so ordered.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    SOUTHERN PAC. CO. v. MILLER.
    (No. 901.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 9, 1919.
    Rehearing Denied Jan. 16, 1919.)
    1. Master and Servant <⅜=>280 — Injury to Servant — Assumption of Risk.
    In an action by a switchman for alleged injury from being jerked from a car by sudden application of brakes, evidence held to show that plaintiff had assumed the risk.
    2. Appeal and Error <g=»1060(l) — Harmless Error — Misconduct of Counsel.
    In an action by a switchman for injuries, where the evidence of negligence was close, improper remarks of plaintiff’s counsel as to competency of engineer and as to plaintiff having to live on half rations or the charity of his friends if not awarded damages must be held to have improperly influenced the jury.
    S. Master and Servant <⅞=>204(1) — Injury to Servant — Federal Employers’ Liability Law — Assumption of Risk.
    While the defense of assumed risk is eliminated by the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) in cases of interstate commerce, where the violation by the carrier of the statute enacted for the safety of employes contributed to the injury, in all other cases it is a complete bar.
    Appeal from District Court, El Paso County ; Ballard Cold well, Judge.
    Suit by Albert Miller against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Beall, Kemp & Nagle, of El Paso, for appellant.
    Geo. E. Wallace and W. S. Berkshire, both of El P'aso, for appellee.
   HARPER, C. J.

Albert Miller brought this suit against the Southern Pacific Company for damages for personal injuries alleged to have been sustained by him while in the employ of the defendant as a switchman in Los Angeles, Cal. He alleges that while in the discharge of his duties, engaged in interstate commerce, when in the act of climbing onto the caboose the engineer in charge applied the air suddenly and with such force as to jar him from his position, and he was caused to fall to the ground in such position as that his leg was caught under the wheels of the caboose and so badly mangled as to necessitate amputation above the knee.

Defendant answered by general demurrer, general denial, and plea of assumed risk.

The cause was tried with a jury, and upon its verdict for $22,750 a judgment was entered for plaintiff for said sum. Later, upon hearing of motion for new trial, one of the grounds of which was misconduct of the jury, the plaintiff remitted $7,750, whereupon the motion was overruled, and defendant has appealed.

Error is assigned to argument of counsel: First. In the opening argument counsel for the appellee stated to the jury that the “engineer was incompetent, or he would not have remained an engineer for the company on the extra board for five years without being' given the position of a regular engineer.” There is no allegation of incompetency of the engineer, and in no way is the incompetency of the engineer 'made the basis of any act of negligence upon the part of the company.

Second. Counsel in the closing argument stated to the jury “that if they did not award plaintiff damages he would have to live on half rations or live upon the charity of his friends.” This statement of counsel was unsupported by anything in the record, and can be classified as nothing but an intentional appeal to the passion and prejudice of the jury in a case where the verdict is against the preponderance of the evidence upon the vital points of the case, and a very large one, so large that appellee has entered a remittitur of $7,750.

The verdict rests solely and alone upon the testimony of the plaintiff. All the other witnesses present, and there were several, affirmatively declared in effect that the accident did not happen as charged.

Appellant further urges that the evidence conclusively shows that appellee assumed the risk. His own testimony is the only evidence upon the point. He stated:

“As to whether an experienced railroad man standing as I was would have been jerked off by a jerk twice so hard, he would and it happened ■ every day. They jerk them loose pretty nearly every day. It is a customary thing in the yards, at times, a man getting on a car or caboose. Of course, I knew that, and kept on working. I had a right to work as long as they would let me. As to why I didn’t quit if it was a dangerous place, they didn’t do it all the time with me —it was with some others.”

We are of the opinion that, under the facts as they appear of record before us, undisputed as they are, plain and not open to doubt, no other inference can he drawn from them than that appellee assumed the risk as a matter of law. But if this is too strict a construction to be placed upon the facts by a court, and that under the liberal holdings of the appellate courts the question is one for the jury, nevertheless, bearing in mind that it at least is a very close question, calling for calm and dispassionate consideration at the hands of the jury, and further bearing in mind that the preponderance of the evidence upon the question of negligence is in favor of appellant, as well as the size of the verdict, it must be concluded that the improper argument of counsel had the effect the counsel intended. In that the verdict was improperly influenced thereby it will not be permitted to stand. Gulf, C. & S. F. Ry. Co. v. Jones, 73 Tex. 232, 11 S. W. 185.

Appellee suggests in this connection that assumed risk growing out of the negligence of the company or one of its employés is no longer a defense. The defense of assumed risk is eliminated by the Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) in cases of interstate commerce, in all cases where the violation by the carrier of the statute enacted for the safety of employés contributed to the injury, hut in all other cases is left open to the defendant as a complete bar of the action. L. R. A. 19150, 69, and cases there cited.

There are other assignments in the brief of appellant, but, if error, are not likely to occur upon another trial, so we make no comment thereon, but the cause is reversed and remanded, for the reasons assigned.
      —nTi'nr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes