text:
    MILLER et al. v. FLATTERY et ux.
    (No. 357.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Vendor and Purchases (§ 92)—Rescis-sion by Vendor—Fraud.

      A vendor in a deed reciting a cash consideration of $2,200, who delivered it for a consideration part cash and part notes, assigned by the purchaser without recourse, on his agent’s assurance that he had a purchaser for the notes, upon the agent’s failure to have the notes cashed, could not rescind as against the purchaser.
    [Ed. Note.—For other cases, see Yendor and Purchaser, Dec. Dig. § 92.]
    2. Homestead (§ 38)—Acquisition—Occu-pancy.
    When a homestead dedication has not been effected by actual occupancy, such effect must be accorded to ownership and visible acts of preparation to use it for a home.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. § 57; Dec. Dig. § 38.]
    3. Homestead (§ 57)—Acquisition—Sufei-ciency oe Evidence.
    Evidence held to warrant a finding that premises were impressed with a homestead status at the time of their conveyance by plaintiffs.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 83-85; Dec. Dig. § 57.]
    4. Homestead (§ 118)—Joinder oe Wipe— Avoidance eor Fraud.
    Title to a homestead could not pass without the wife’s joinder in the conveyance, untainted by fraud of any kind upon her rights; and, if the deed was delivered by her husband- in fraud of her rights, she would not be precluded from asserting them against the purchaser.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118.]
    5. Homestead (§ 118)—Conveyance—Fraud upon Wipe.
    Where a wife signed a deed of her homestead, reciting a consideration of $2,200, with the understanding that it was to be paid in cash, and where her husband, withodt her knowledge or consent, delivered it for a part cash consideration and notes assigned to him without recourse, the substitution of the notes in part payment was a fraud upon the wife’s rights, entitling her to rescind as against a purchaser with notice of the recited consideration, who made no inquiry to ascertain the husband’s authority to deliver on other terms of payment.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118?’]
    6. Vendor and Purchaser (§ 229)—Bona Fide Purchaser—Notice.
    One claiming title to land is charged with notice of every matter affecting the estate which appears on the face of any deed forming an essential link in the chain of his title, and also with notice 'of whatever he would have learned by any inquiry which the recitals therein required him to make.
    [Ed. Note.—For other cases, see Yendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. § 229.]

      7. Homestead (§ 129) — Bona Fide Pubchas-ee — Notice—Featjd on Vendor.
    One purchasing for value from a purchaser of homestead premises, charged with notice of a recited consideration of $2,200 and constructive notice of the wife’s understanding, when she signed the deed, that payment was to be in cash, and having actual notice that notes assigned without recourse had been substituted as a part of the consideration, was justified in assuming that the substitution was authorized or ratified by the vendor, was not bound to make any inquiry as to such substitution, was not chargeable with constructive notice of the fraud practiced upon the vendor, and was entitled to the protection of an innocent purchaser.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. §§ 233, 234; Dec. Dig. § 129.]
    8. Homestead (§ 122) — Rescission by Vendor — Estoppel.
    In such case, where the subsequent purchase was made several months after delivery of the deed to the first purchaser, during which time he had been in peaceable possession, collecting the revenues, and the subsequent purchaser had no notice or reason to think that the vendor was dissatisfied with the substitution of the notes instead of an entire cash consideration, such vendor was estopped to rescind as against the subsequent purchaser.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. § 122.]
    Error to District Court, Harris County; Wm. Masterson, Judge.
    Action by T. F. Flattery and wife against J. W. Miller and others. Judgment for plaintiffs, and defendants bring error.
    Reversed and remanded.
    G. W. Tharp and Barkley & Green, all of Houston, for plaintiffs in error. W. W. Kirkpatrick and R. D. Whitehead, both of Houston, for defendants in error.

      For other oases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

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

   HIGGINS, J.

T. F. Flattery and wife, Hattie B. Flattery, executed a deed to J. W. Miller for a recited consideration of $2,200 cash, covering a parcel of land with improvements, dated and delivered March 4, 1911. By deed dated in August, 1911, Miller conveyed same to his daughter, Maggie E. Moore, for a recited consideration of $2,500 cash, but the true consideration was the release of an indebtedness of $2,985, due by Miller to his daughter and of a mortgage securing such indebtedness upon a plantation in Louisiana.

This suit was filed by Flattery and wife, several months subsequent to the last-mentioned conveyance, against Miller and wife and Mrs. Moore and her husband, seeking a recovery of the premises based upon fraud alleged to have been perpetrated by Miller in securing delivery of the deed first mentioned. The material facts upon which the claim of fraud is predicated, in brief, are that Flattery and wife placed the property . for sale in the hands of an agent Hurlock. Miller agreed to purchase for $2,200, paying $1,200 in cash, and transferring to Flattery, without recourse, notes to the amount of $1,000. Mrs. Flattery signed the deed with the understanding that the consideration was to be paid in cash as the deed recited, and her husband was without authority from her to deliver the deed, except upon payment in cash of the consideration stipulated therein. The husband, without her knowledge or consent, delivered the deed upon payment by Miller of $1,200 cash and transfer to him of the notes mentioned. The agent Hurlock represented to Flattery that he had a purchaser for the notes who would cash same, and upon the faith of this representation the notes were accepted by Flattery. The prospective purchaser, however, failed to consummate the purchase thereof.

In so far as the husband is concerned, the allegation of fraud is wholly unsupported by the evidence. There is no evidence whatever of any fraud practiced by Miller upon him, and it clearly appears that Flattery delivered the deed and accepted from Miller the $1,200 cash and transfer of the notes without recourse, with full knowledge of all the facts, and relying simply upon Hurlock’s promise to have same cashed. Manifestly Hurlock’s failure to have the notes cashed does not warrant a rescission of the conveyance, so far as concerns the husband.

But if it was the homestead of the parties, and the deed was delivered in fraud of the wife, she would not be precluded from asserting her rights.

It is urged that the facts do not show the premises to have been impressed with the homestead character. It had never been actually occupied as such, but the lot had been purchased for homestead purposes, and, in pursuance of this purpose, the house thereon had been erected and just completed a short time prior to the conveyance. The failure of the parties to move into it was explained by the fact that they had paid rent on the house they were occupying, and their month was not up. When a homestead dedication has not been' effected by actual occupancy, such effect must nevertheless be accorded to ownership, intention, and visible acts of preparation to use it for a home. Archibald v. Jacobs, 69 Tex. 251, 6 S. W. 177; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Foley v. Holtkamp, 28 Tex. Civ. App. 123, 66 S. W. 891.

Applying this rule, the court or jury might find, from the testimony, that the premises were impressed with the homestead status at the time of the conveyance, and, if it be so found, it follows that title could not pass without the joinder of Mrs. Flattery in the conveyance, untainted by fraud of any kind upon her rights.

Plaintiffs in error next advance the proposition that no fraud upon Mrs. Flattery’s rights is shown, but the recitals in the deed placed Miller upon notice that she undertook to convey for a cash consideration of $2,200; and the substitution of notes in payment of a portion of this amount by her husband and Miller was a fraud upon her.

In Cole v. Bammel, 62 Tex. 108, the husband had accepted a less amount than that stipulated in a deed conveying separate property of the wife. Discussing the effect of such act, it is said:

“The acceptance by her husband of a different sum, under such a state of facts and without her special authority, would not be binding upon her, nor amount to a ratification of the fraud in which he participated. The purchaser need not be an active, participant in such a transaction in order to vitiate it, but it is sufficient if he had notice of its character before he parted with the purchase money. In principle, the false reading of a wife’s deed, so that it shall appear to be upon a different consideration for what it actually recites, or the changing of the deed in this respect, does not differ from the fraudulent act of receiving from the purchaser a less amount of money than the wife had agreed to take for the land when examined by the officer. Such a proceeding imposes upon the wife a different contract from that which she had explained to her, and, in effect, forces upon her a conveyance she may have been unwilling to execute. A wife, unwilling to sell her separate estate for the price offered her, might be induced to part with it for a much larger sum. The larger sum is inserted in the deed, and she executes it willingly, and so acknowledges to the notary. This deed is placed in the hands of her husband to deliver to the purchaser on receipt of the consideration. Contrary to her wishes, it is delivered upon payment of the very price she had refused for the land; she is, in effect, defrauded into the execution of an instrument she was unwilling to sign, and the beneficial design of the statute is frustrated. * * * By piacing in Stockton’s hands a deed with an expressed consideration of $1,500, she notified all persons proposing to purchase that this was the price she was willing to take for the property. The instrument itself was the only evidence of the agency of the party having it in possession. It was the charter of his authority, and gave him no greater rights than would a power of attorney restricting the agent’s power of sale to the event of his being able to do so for a specified sum. No one, upon reading it, had a right to conclude that the agent had a right to make any other terms than were made by the deed itself. It was a case of special agency to do a particular thing in a particular way. Persons dealing with such an agent must know that if a different act is done, or the one authorized is done otherwise than the power describes, he, and not the principal, must suffer if damage ensues to the latter in consequence of disobedience to his directions. Story on Agency, §§ 126, 224. * * * The statement of the consideration in the deed put him upon inquiry as to the power of Stockton to take a different sum. Had he pursued such inquiry to the proper source of information, he would have learned that Mrs. Cole had given Stockton no such authority, but was unwilling to take $1,000 for the land; and he must be held to have had full knowledge of that fact before he bought it. Wade on Notice, § 17.”

To the same effect is Stallings v. Hullum, 79 Tex. 421, 15 S. W. 677, and Scoggin v. Mason, 46 Tex. Civ. App. 480, 103 S. W. 833.

In the light of the authorities noted, it must be held that the deed was delivered in fraud of the wife’s rights.

But it appears that the property has passed to Mrs. Moore, a purchaser for value, who acquired same in good faith, without any actual notice of the frau'd practiced upon Mrs. Flattery, and the determination of her rights presents a question of greater difficulty. One claiming title to land is charged with notice of every matter affecting the estate which appears on the face of any deed forming an essential link in the chain of instruments through which he derives his title, and also with notice of whatever matters he would have learned by any inquiry which the recitals in those instruments made it his” duty to pursue. Mrs. Moore is thus charged with notice of the recital of a cash consideration in the Flattery deed, and she testifies that she knew her father used the notes in question in paying for the property. At first glance, it would seem that she was thus placed upon inquiry and the duty imposed of ascertaining whether or not Mrs. Flattery had consented to and authorized the substitution of the notes in part payment of the cash consideration recited in the deed. In other words, that she was in exactly the shoes of her grantor. Miller had constructive notice only of the wife’s understanding of the terms upon which she was conveying. Mrs. Moore likewise had' this constructive notice. Having this notice, the courts have held, as indicated above, that Miller was charged with the duty of making inquiry and ascertaining the authority of the husband to depart from the terms of the wife’s contract of conveyance, as evidenced by her deed. Mrs. Moore knew that her grantor had used these notes in part payment of the recited consideration, and, as stated, it would at first seem that she, too, was charged with a like duty of making inquiry and ascertaining the authority by which this substitution was made, but in one respect her position was quite different from that of her father. Her purchase of the property was made several months after the execution and delivery of the deed to her father, during which time he had been in peaceable possession and collecting the revenues thereof, and she had no notice or reason whatever to suspect that Mrs. Flattery was in any wise dissatisfied with the substitution of the notes. Under such circumstances, was not Mrs. Moore justified in assuming that such substitution was authorized by Mrs. Flattery, or at least that she had ratified the same? It seems to us, under such circumstances, that any reasonable person would not have deemed it necessary to make inquiry concerning the substitution.

'In Hussey v. Moser, 70 Tex. 42, 7 S. W. 606, in discussing the question of estoppel upon a similar state of facts, Judge Gaines said:

“Knowing that, as a result of her own negligence, the deed had gone forth with all the appearances of a valid conveyance, it was her duty to denounce the fraud for the protection of third parties. Not having done this, and innocent third parties having purchased upon the faith of the deed, it would seem that the transaction combines all the elements essential to the estoppel, even of a married woman.”

And in Link v. Page, 72 Tex. 592, 10 S. W. 699, it was said:

“We think, also, where the owner of real property negligently clothes another with the appar-snt title to itj although the execution of the instrument which purports to convey the title may be obtained by fraud, and third parties being- misled thereby innocently purchase and pay value for the property, he should be held estopped to deny the validity of the conveyance. This principle was announced by this court in the case of Steffian v. Bank, 69 Tex. 513 (6 S. W. 823], in which it is held that one who signs and acknowledges a conveyance 'to be delivered only upon' condition may be estopped to set up the nondelivery by negligently permitting it to pass into the hands of the grantee.”

To the same general effect is Spotts v. Whitaker, 157 S. W. 422, and Houston v. Hubbard, 37 Tex. Civ. App. 546, 85 S. W. 474, where it is held that innocent purchasers will be protected in ease of unauthorized delivery of escrow deeds, where .the negligence of the grantor brought about the unauthorized delivery. Applying the principles of es-toppel recognized in the cases noted, we think the evidence shown by this record indicates that Mrs. Moore was entitled to protection as an innocent purchaser, and, under the facts, the trial court should have found that she had no constructive notice of the fraud practiced upon Mrs. Elattery, and, upon retrial, judgment should be rendered in her favor, unless some new facts be adduced to affect her with notice.

Under our view, a reversal and rendition of the judgment might properly be made, but, upon consideration of the record as a whole, it occurs to us that the end of justice will be better served by remanding for retrial; and it will be so ordered.

Reversed and remanded.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    ADAMS & GARRETT et al. v. RANDLE.
    (No. 5331.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    Rehearing Denied Dec. 9, 1914.)
    Brokers (§ 73) — Commissions—Persons Entitled.
    Where a partner of a real estate firm obtaining an exclusive contract to procure a purchaser of real estate for a commission placed the property before a third person, who examined the property and bought from the owner, who knew that the partner had assisted in bringing about the sale, the partner purchasing the copartner’s interest could recover the commission.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig-. §§ 59-61; Dec. Dig. § 73.]
    Appeal from District Court, Nueces Coimty; W. B. Hopkins, Judge.
    Action by J. J. Randle against William Adams and another, composing the firm of Adams & Garrett. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Jno. C. Scott, of Corpus Christi, for appellants. Jas. M. Taylor and Pope & Sutherland, all of Corpus Christi, for appellee.

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

   CARL, J.

Appellee, J. J. Randle, brought

this suit against William Adams and H. W. Garrett, composing the firm of Adams & Gar-1 rett, and alleged substantially: That about March 17, 1907, appellee and one C. W. Gibson were in the real estate business in Corpus Christi, doing business under the name of Randle-Gibson Realty Company; that about said date Adams & Garrett entered into a contract with said company whereby they listed for sale 7,103 acres of land near Alice, in what is now Jim Wells county, at $10.50 per acre; that there was no time limit placed thereon; and that the company was to receive as “commission for any sale or purchaser procured through them or their efforts the sum of 50 cents per acre, the land to be sold at $11 per acre; that the Randle-Gibson Realty Company was to have the sole and exclusive agency for the sale thereof, subject only to the right of the owners to sell the same to any one to whom said land had not been offered or put up to by the said Randle-Gibson Realty Company.”

It is alleged that about April 7, 1907, J. J. Randle, a member of said firm, offered or put up said land for sale to one Clark Pease, who was then acting for himself and S. Guggenheim and H. Cohn, at said price of $11 per acre, and gave the said Pease the names of the owners of the land, and the said land was also put up to said Clark Pease at the same price by subagents of Randle-Gibson Realty Company, and that about April 14, 1907, the said Pease called upon Adams & Garrett, without the knowledge of the realty company, and entered into a contract to purchase the land for himself, Guggenheim, and Cohn; that Adams knew at the time of the sale that Pease and his associates were the customers produced by the realty company, and that said land was so sold to Pease and associates at $10.50 per acre. It is also alleged that Gibson sold his interest in the commission claim to Randle.

The said Adams & Garrett joined the issue on all these matters, and impleaded Clark Pease, S. Guggenheim, and H. Cohn on a bond of indemnity they gave Adams against the payment of the commission sued for. The suit as to Garrett was dismissed, and in a. trial before a jury judgment went for Randle against Adams for the full amount sued for, and -in favor of Adams over against the said Pease, Guggenheim, and Cohn on the bond. These sureties alone appeal.

Conclusions of Fact.

In deference to the finding of the jury, we conclude that the Randle-Gibson Realty Company had an exclusive contract of agency for the sale of the 7,103 acres of land; that J. J. Randle placed same before Clark Pease, who was acting for himself and Guggenheim and Cohn, and induced Pease to look at the ranch and did what he could to bring about a sale thereof; that Pease and associates did buy said land,' and Adams, the owner of same, knew that Randle had assisted in bringing about the sale before the contract was made, and on that account exacted a bohd of indemnity of the purchasers before he would close the sale. We find that J. J. Randle, acting for Rkndle-Gibson Realty Company, was the procuring cause of the sale to the said Pease and associates. Gibson sold his interest in the commission claim to Randle.

Conclusions of Law.

Since the Randle-Gibson Realty Company, through J. J. Randle was the procuring cause of the sale, and had an exclusive contract, appellee, having purchased the claim, was entitled to recover as found by the jury.

The judgment is in all things affirmed.


author: FLY, C. J.

text:
    DAWSON v. KING et al.
    (No. 5332.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    Denied Dec. 9, 1914.)
    1. Appeal and Error (§ 997) — Review—Directed Verdict — Evidence Considebed.
    On an appeal by plaintiff from a judgment on a verdict directed for defendant, the plaintiff’s evidence must be taken as true.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. § 997.]
    2.Master and Servant (§ 288) — Injubies to Servant — Assumption oe Risk — Question for Jury.
    Where a servant was injured by a ginhouse door falling upon him and there was no evidence that he knew of-the defect in the hanging of the door which was the cause of the fall, or that the defect was so obvious as to. give him implied knowledge thereon, he did not assume the risk as a matter of law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    3.Master and Servant (§ 289) — Injuries to Servant — Contributory Negligence-Question for Juey.
    In an action for injuries to a servant who fell from the upper to the lower floor of a gin-house when the door by which he was attempting to pull himself up fell with him, evidence held not to show that the servant was negligent as a matter of law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    4. Master and Servant (§ 289) — Injuries to Servant — Questions for Jury — Contributory Negligence.
    The contributory negligence of a servant is a question of fact for the jury, unless the act is a violation of some law, or the facts are undisputed and admit of but One reasonable conclusion.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    5. Master and Servant (§ 284) — Injuries to Servant — Existence of Relation — Question for Jury.
    In a personal injury action by one who had been sent by one defendant to install a cotton gin on the premises of the other defendant, evidence held -sufficient to take to the jury the-. question whether the plaintiff was the servant of both or either of the defendants.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by Ed Dawson against Mrs. H. M. King and another. Judgment for the defendants on a directéd verdict, and plaintiff appeals.
    Reversed and remanded.
    Jno. C. Scott and E. B. Ward, both of Corpus Christi, for appellant. Jas. B. Wells and Harbert Davenport, both of Brownsville, G. R. Scott and Boone & Pope, all of Corpus Christi, and Rembert G. Watson and J. J. Eckford, both of Dallas, for appellees.

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

   FLY, C. J.

This is. a suit by appellant against Mrs. H. M. King and the Murray Company to recover damages arising from personal injuries alleged to have been received through the negligence of appellees in not furnishing a safe place in which appellant could work for appellees. Upon the verdict of a jury, judgment was rendered in favor of appellees. This is a second appeal, the cause being reversed on the first appeal because exceptions were sustained to appellant’s petition. 121 S. W. 917. Appellant alleged that he was an employé of appellees and was engaged in installing a cotton gin and cotton press in a building in Kingsville, Kleberg county, then a part of Nueces county; that a safe place in which to prosecute his labors was not furnished him by appellees, but that the same was insecure and unsafe; that an opening had been cut in an upper floor of the frame building in which the gin was to be installed, but no steps had been built although, in the prosecution of his work, it was necessary for appellant to reach said upper or elevated floor; that there was a large doorway through the side or wall of the building, the lower edge of which was about level with said floor, and said doorway was closed by a large rolling door. It was further alleged that the door had been rolled along its runway so that continuously for many days it had hung suspended against the wall above one of the sides of the opening ; that during his labors it became necessary for appellant to get a hammer which lay on the floor overhead, and while engaged in getting it he caught hold of the door and pulled it, and it gave way and fell from its runway, causing appellant to fall to the joists of the floor beneath and the door fell on him. Appellees pleaded contributory negligence, and that the danger was obvious and plain. A verdict was instructed for ap-pellees.

Appellant introduced evidence which, under the present status of the case, must be taken as true, showing that he was sent by the Murray Company to Kingsville to install the gin and press for Mrs. King. She agreed to and did pay him for his services. The house in which the plant was installed belonged to Mrs. King. The gin was to be installed on the lower floor and the press on the upper floor. There was an opening through the upper floor three by six feet, which had been left for a staircase, which had not been built. There was no way to get on the upper floor except through that opening. Appellant tried several times to get the carpenter of Mrs. King to erect the stair steps, but he would not do so. Appellant, in order to reach the upper floor, where his duties compelled him to go, would put his foot on a cleat fastened by him on a post and, taking hold of a post on one side of the opening and the rolling door on the other side, would pull himself up. The door was a heavy one, and was only fastened at the top by two rollers. The door was not blocked, as it should have been, to prevent it from running off the runway, and when appellant reached out to get a hammer he needed, the door fell, precipitating him to the uncovered joists of the lower floor. In its descent the door fell upon appellant, and he was seriously injured. Appellant did not know that the door was not fastened. He had been pulling up by the door, the only way in which he could reach the upper floor, for two or three days, and thought it • was fastened. He would not have pulled up by it had he known it was not fastened. The door was about 13 feet by 6 feet and was placed in the upper wall so that when the cotton was pressed the bales could be carried out through the door. It was close by the hole left for the stair steps. Such doors are on all ginhouses, and they are always blocked to keep them from running off and falling. The door in question was not blocked. In going up through the hole it was absolutely necessary to take hold of the door. If it had been blocked, one man could not have pulled it off the rollers. Johnson, who was installing a round bale plant, went up through the hole just as appellant did.

The question of assumed risk does not arise under the facts of this case, but if appellant is precluded from a recovery it must be on the ground of contributory negligence. An essential element of assumed risk upon the part of the servant is knowledge of the defect in the appliance furnished by the master, and without such knowledge no risk can be assumed. It may be that the defect is so apparent as to charge knowledge, but in the ultimate analysis'of assumed risk there must be knowledge. It may be implied, but it must exist, and thus an intelligent choice be evinced. There was no other way for appellant to reach the upper story, to which he was compelled to go in the prosecution of his work, except through the hole in the manner in which he went. He was compelled to grasp the door on one side and 1 the post on the other. He was ignorant of the unblocked condition of the door, and therefore could not assume the risk of it falling. His use of it for two or three days merely confirmed him in the belief that it was securely fastened, and he acfed on that belief. Labatt, Mast. & Serv. §§ 956, 957. Most certainly the case was not, under the circumstances, one that showed assumed risk as a matter of law. No duty of inspection devolved upon appellant, but he could act upon the presumption that the door was made like all other roller doors for ginhouses.

The failure to furnish stair steps made it absolutely necessary for appellant to pull himself up through the hole by laying hold of objects on either side of the hole. If he had not gone up as he did, then he could not have reached the upper story and could not have installed the press. It cannot be maintained that appellant was guilty of contributory negligence as a matter of law in climbing up as he did, but it would be purely a question of fact for a jury to determine.

The question of negligence is one peculiarly of fact for the determination of a jury, and of course under the term, “negligence,” is included contributory negligence, and ordinarily it should be submitted to the jury. It is only when the act is done in violation of some law, or when the facts are undisputed and admit of but one reasonable conclusion regarding the care of the party in doing the act in question, that the cause can be taken from the jury and decided by the court. As said by the Supreme Court in Lee v. Railway, 89 Tex. 583, 36 S. W. 63:

“To authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

See, also, Western Assurance Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661; Oil Co. v. Burns, 96 Tex. 573, 74 S. W. 758; Railway v. Tirres, 33 Tex. Civ. App. 362, 76 S. W. 806; Railway v. Slinkard, 17 Tex. Civ. App. 585, 44 S. W. 35. As said by Justice Neill, in Railway v. Tirres, cited:

“The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them. A case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view that can be properly taken of the facts the evidence tends to establish.”

The petition has substantially the same allegations as when on a former appeal this court held the allegations made out a case that should be heard by a jury. The allegations were substantially proved as alleged, and the former opinion of this court should have guided the trial court and have caused a submission of the case to the jury, and thus, perchance, have avoided the trouble and expense of another trial.

Appellant had installed a number of gins and presses for the Murray Company, and he was sent by that company to Kings-ville to install the plant for Mrs. King. That company fixed his compensation, and Mrs. King paid the hills. She furnished the place in which the work was performed and the Murray Company furnished the expert workman to install the plant. That the Murray Company'maintained control over appellant while he was installing the gin and press is evidenced by the fact that Mrs. King was required to sign a paper directed to the Murray Company, to the effect that the machinery had been erected in a workmanlike manner in accordance with the terms of the contract, and by the fact that the company retained control of him to the extent that it was to be advised if his work was in any way unsatisfactory.' He was described by the company as “one of our best and most experienced mechanics.” One person may stand in the relation of master to another although the former does not compensate the latter for his services. Labatt, Master & Servant, p. 60 et seq.; Lipscomb v. Railway, 95 Tex. 5, at page 20, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804. Appellant was not withdrawn from the service of his general employer, the Murray Company, and did not act under the order of Mrs. King. The evidence tended to show a common employment of appellant by appellees. Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328.

Mrs. King treats appellant in her pleadings as her servant, and only defends on the ground of his contributory negligence, although much of her brief is devoted to the subject of assumed risk. If that defense had been pleaded by Mrs. King, it was still, as hereinbefore stated, a matter to be determined by a jury;

The judgment is reversed, and the cause remanded to be tried in accordance with this opinion.


author: TALBOT, J.

text:
    MISSOURI, O. & G. RY. CO. v. PLEMMONS.
    (No. 7197.)
    Court of Civil of Texas. Dallas.
    Nov. 7,1914.
    Rehearing Denied Nov. 28, 1914.)
    1. Master and Servant (§ 276) — Injuries to Servant — Action — Evidence — Sufficiency.
    In a suit by a brakeman, who claimed to have suffered severe injuries by reason of the breaking of a handhold on a car, which precipitated him to the ground, evidence held sufficient to justify a finding that the injuries claimed were suffered in the manner asserted.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    2. Damages (§ 185) — Actions — Evidence-— Sufficiency.
    In a personal injury action, evidence held sufficient to sustain an award of $4,500 damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.]
    3.Master and Sebvant (§ 124) — Injuries to Servant — Statutes.
    Under Acts 31st Leg. c. 26, § 5, and Acts 31st Leg. (1st Ex. Sess.) c. 10, § 3, declaring that no carrier engaged in intrastate commerce shall use cars not provided with secure handholds, etc., and that no employs injured shall be held to. assume risk or to have been guilty of contributory negligence, if the failure of the carrier to equip the cars with such appliances, or to comply with any statute for the safety of employés, contributed to the injury, and together with Safety Appliance Act Cong. 1893 (Act March 2, 1893, c.' 196, 27 Stat. 531 [U. S. Comp. St. 1913, §§ 8605-8612]), and Act Cong. April 22, 1908, c. 149 (35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), which contain similar provisions, a railroad company, sued by brakeman for injuries caused by the giving way of a defective handhold, cannot escape liability on the ground that the car was one belonging to different company, and that it was only bound to inspect it for apparent defects.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. § 124.]
    4. Evidence (§ 127) — Admissibility—Present Suffering — Res Gestas.
    Evidence of declarations of present pain and suffering in the nature of verbal acts is admissible to show that a party suffered personal injuries.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.]
    5. Master and Servant (§ 204) — Injuries to Servant — Assumption of Risk.
    Under Acts 31st Leg. c. 26, § 5; Acts 31st Leg. (1st Ex. Sess.) c. 10, § 3, requiring railroad cars to be equipped with secure handholds, and declaring that an employé injured by reason of the failure of the railroad company to comply with such provisions does not assume the risk of his employment; a brakeman injured by the giving way of a defective handhold does not assume the risk although he knew of the defect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by H. W. Plemmons against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John T. Suggs, of Denison, and Head, Smith, Maxey & Head, of Sherman, for appellant. McReynolds & Hay, of Sherman, for appellee.

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

   TALBOT, J.

Appellee instituted this suit

against the appellant, Missouri, Oklahoma & Gulf Railway Company, and Missouri, Oklahoma Railway Company of Texas, to recover damages for injuries sustained by him on or about March 13, 1913, while employed as a freight brakeman. It is alleged, in substance, that while so employed it became necessary for him to climb down the side of a car while moving, for the purpose of signaling the engineer, and that while s6 engaged a grabiron or handhold gave way, resulting in his fall to the ground and the infliction of the alleged injuries. It is further alleged that the handhold and surrounding parts were defective, winch caused it to give way; that defendant failed to properly equip the car and to maintain the handholds in proper condition, and that it negligently failed to inspect the car and handhold, and that he did not know of the defects and omissions alleged and complained of; that as a result of appellant’s negligence, causing him to fall, his back, shoulders, sides, and hips were bruised; the bones, tendons, nerves, muscles, and ligaments of his spinal cord were lacerated, torn, and otherwise injured, his kidneys and nervous system disordered, his eyesight impaired, and a rupture on his right side caused. It is further alleged that defendants were partners, their lines constituting one system, and that they were engaged as carriers by railroad for hire engaged in interstate commerce, and were agents for each other. Defendants answered by general demurrer, denial of partnership and agency, and alleged that they were separate corporations organized under the laws of different states. They denied the negligence alleged, that plaintiff fell, and that he sustained any injuries and had thereby been damaged. They pleaded affirmatively, but not under oath, that plaintiff, prior to the receipt of his injury, knew or was properly chargeable with knowledge of the matters and defects comiilained of by him. No denial was filed by plaintiff with respect to such affirmative allegation. Trial was had before a jury, special issues being submitted to them, and upon their findings judgment was rendered in favor of plaintiff for $4,500 against appellant on November 24, 1913. The jury were peremptorily instructed to find in favor of defendant, the Missouri, Oklahoma & Gulf Railway Company of Texas. Appellant filed exceptions to the findings of fact by the jury; and a motion for new trial. This motion being overruled, appellant excepted and appealed to this court.

By its first assignment of error appellant contends that the verdict of the jury and the findings of fact with respect to the plaintiff having been injured by falling from the car as alleged are so greatly against the preponderance and great weight of the testimony that such findings and the judgment rendered thereon should be set aside. This contention is based upon the assertions: (1) that the testimony of the appellee was unsupported by that of any other witness, and was to the effect that he attempted to climb down off the side of a car, a part of a train in motion, running from 8 to 15 miles per hour; that the roof handhold gave way while a portion of his body was above the car, so that the distance he fell was greater than the height of the ear; that he weighed 235 pounds; that he fell backward, with no opportunity to attempt to break the force of his fall with hand or foot; (2) that the undisputed evidence shows that upon examination of plaintiff at various times thereafter, the first time immediately after such fall, there were disclosed no broken bones, no bruise, no cut or abrasion of the skin, or even a reddened skin, and no visible evidence of any kind or character to show that plaintiff had fallen as he claims to have done; (3) that aside from the incredible character of the statements, based on the common knowledge of ordinary men, there was a large amount of evidence that it would be impossible for a man of plaintiff’s size and weight to sustain such a fall under the circumstances detailed without there being any evidence of injury visible. This assignment will be overruled. We think the evidence sufficient to authorize and sustain the findings of the jury and judgment rendered.

Among other things appellee testified:

“We had some work to do at Durant, and when we got ready to leave we picked up a car off the house track and put it in the train. It was an N. O. & N. E. car. When the engineer whistled for Kenefiek I started , over the train to signal the engineer in regard to dropping this car. The train was going about 15 miles an hour, and there was a higher car ahead of this car that I couldn’t step up on, and I decided to sit down on the car back of the high car and give the signals. I took hold of the handhold and started to climb off, the handhold being on top of the car. The handhold pulled off and. threw me to the ground. The handholds are of iron, and are used for the purpose of ascending and descending cars. When I started to get off this car I intended to attract the engineer’s . attention and signal him to drop the car into the south end of the house track. I couldn’t see him very well from where I was, and I was climbing off so I could see him. The handhold pulled off and threw me backward, and I fell to the ground. I suppose I fell 14 or 15 feet, and was knocked unconscious. A man came up the track and pulled me out of the mudhole I was lying in. I was numb all over, and felt that way until they came and picked me up. When they put me in the caboose I had an awful pain in my back and shoulders. I was lying against a rock. There was a big, long cushion in the caboose and they carried me into the caboose on it. I lay there some little time and was then removed to the hotel near by. I stayed there until they picked me up at night at 8 o’clock, I suppose. I suffered untold agony there in that hotel all evening. I suffered with pain in my back and shoulders and through my hips, and in fact I was sore all over from my head to my feet. I reached Deni-son about 2:30. An ambulance took me to my room. Dr. Long, the company surgeon, came to see me, and examined to see if he could locate the trouble and left some kind of tablets. That was about 3 o’clock a. m., and he came back about 10 a. m. I was in awful pain during this time. I couldn’t turn over; I couldn’t move any way. I just lay on my back. Couldn’t move in the bed. Right here in my lower privates was giving me an awful lot of pain, hurt me awful bad. I noticed that next morning worse than any other time. Commenced hurting after they got me to my room. It hurts all the time. Its just a sharp pain in there. Dr. Long said he would come back Sunday, and he didn’t come, and I had Dr. Acheson come over. Dr. Acheson relieved my pain and has been my physician since. Dr. Long never came back any more. The first time I sat up was the 3d of April; I couldn’t sit up. I couldn’t raise up until that time. The soreness in my shoulders had gone down in the lower part of my back. The pain in my private parts was hurting me very much and has been ever since. It has hurt every day and every night since. In bad weather it is worse. The worst pain is in the small of my back. At night I can’t sleep. Hardly ever have a good night’s sleep since I was hurt. I am up and down all night with my back, and it has been that way all the time. I take a little exercise every day. I feel very good as long as I am stirring a little. If I go uptown and stay a few hours, I am restless all night. During this time my groin has been awfully tender and sore. Sharp pains hit me occasionally. It is worse when I am standing. My kidneys give me an ^ awful lot of trouble. I am up three or four times a night, and there is a pain follows after making water. My left eye has hurt me all summer. It hurts worse than my right eye. My right eye gives some trouble but I can’t read with my left eye at all, can’t see anything with it hardly. It was the middle of summer when my eyes first began hurting. A skim came over my left-eye now at times and I have to wipe it out with my handkerchief. My eyes are worse now than they were in July. They are getting worse. I have suffered pain through my head. Yesterday I had an awful pain through my head here. My eyes hurt and I can’t see out of my left eye. It waters a good deal of the time. When I close my right eye I can hardly see at all with my left eye. There was nothing the matter with me before I received this injury as I have been as strong a man as there was in the country. I can’t do anything at all. I can hardly sit around the house in good shape, much less work. I am using crutches to walk with. I am able to walk without them, but I have awful pains in my back.”

On cross-examination appellee said:

“At the time this accident occurred I. guess I weighed 235 pounds. I never saw a bruise or scratch or red place or any other kind of mark on my skin or person following that fall. I couldn’t see my back.”

This witness further testified:

“Prior to the time I received this injury, I had been as strong a man as there had been in this country, I suppose. My occupation had been that of a railway man — brakeman and conductor. I had never been injured before this time. I had never had any claims or suits against any company. Business was pretty dull at the time I was hurt. I did not know what I was earning. I suppose I was earning $50 or more per month when I got hurt. I was working every day I could. I was extra brakeman. Prom extra brakeman you are promoted to regular brakeman, and from there you are promoted to conductor. The average earning capacity of a regular brakeman in the employment of the Missouri, Oklahoma & Gulf was about $100 per month, I suppose. Since I have been hurt, I have not been in condition or able to do any work. I have been incapacitated because I have pains in my body so that I cannot do anything at all. I can hardly sit around the house in good shape, much less work, without pain.”

Dr. Aeheson, called by the appellee, testified :

“I have been a physician and surgeon since 1867 and graduated from the University of Pennsylvania. I know H. W. Plemmons. I began to treat him last March. He was in bed in a rooming house on the north side of Main street. I examined him then and subsequently. I found him crippled and suffering pain. I gave him medicine to moderate the pain. He was complaining with his baék and of pain in the right groin. I ’found in the right groin an incomplete rupture, or total rupture and incomplete hernia. I found a tearing of the inguinal ring that was sufficiently large to admit the tip of the finger, surrounded by the skin. I have seen him since probably two or three dozen times. At one time he had a little bit of fever, not much. Didn’t amount to quite a degree. I found that his pulse ranged from 132,000 a day to 155,000 a day; normal pulse is about 103,000 a day. The respiration was about 51,000 a day where the natural respiration is about 24,000. The blood pressure was low, being about 102 when lowest normal blood pressure is about 110. His blood pressure has increased as high as 220. Blood pressure means the pressure exerted by the heart to drive the blood through the arteries. 1-Iis blood pressure kept coming up. I found that the kidneys had been injured. Blood made its appearance in the urine. The specific gravity of the urine was from 1,020 as high as 1,030. It contained no albumen at the beginning, but did later. It was also alkaline. The presence of albumen indicated a derangement of the kidneys, which permits the escape of albumen. I found something else in the urine. T found crystals of oxalate of calcium, both letter form and dumb bell. This indicated a degeneration of the kid-eny tissue; that is, a diseased condition of the kidney tissue. That will deteriorate a man’s general system. I made the tests microscopically and by chemical analysis. The presence of cysteine crystals always denotes degeneration of the kidneys. I took photographs of his urine, and 'this photograph represents cysteine crystals that are escaping from the system and blood is escaping through the urine. That condition is such as would deplete a man’s general system. It causes high pulse and respiration by the injury to the kidneys acting on the heart. The loss of blood makes the remainder of the blood watery and thin. Mr. Plemmons’ heart is injured. The apex beat is outside the left nipple when it should be inside the left nipple. There is a diastolic murmur of the heart. The man has some cyanosis, a redness of blueness of the surface of the body. That is due to the condition of the heart resulting from the injury to the kidneys. I tested his eyes. A man ought to read a black letter a quarter of an inch square in a good light at 15 feet; the best he can do is to read a letter that is % of an inch square. The field of vision is °/i3 of what it ought to be in the right eye. In the left eye it is Ys of what it ought to be. I examined his eyes with an instrument called a perimeter. Anesthesia is a loss of sensibility. Mr. Plem-mons’ right leg is benumbed. I tested his strength with a dynamometer. Mr. Plemmons’ injuries are permanent. I don’t think he will ever be able to work as a brakeman or conductor. When I examined him there was some swelling in his back. There was no tearing of the skin or anything on the back. It wasn’t discolored any. I found no bruises, and I found no abrasions or roughening of the skin of the back. The man is on the verge of neurasthenia, lack of nerve strength. His right leg is numb.”

This witness further testified:

“A man with a high pulse might be in condition to do some physical labor, light work, but not such work as is incident to the duties of a brakeman or conductor on a railroad. This man has had his kidneys injured, and is passing blood through his urine which is depleting them. His kidneys are affected and show that the blood is impure. The impure blood is affecting his heart and has diseased it. The affection of the kidneys is closely associated with the function of the eyes, and his vision is affected; is imperfect. The man is weak and on the verge of neurasthenia. His respiration is disturbed. It is twice as fast as it ought to be, and his . pulse is entirely too'rapid. Neurasthenia is lack of nerve strength. I say in my opinion the plaintiff’s condition is permanent. I do not believe he will ever get well of any of the troubles that I have mentioned. I do not think that he will get well of that from 132,-000 to 155,000 pulse rate. The loss of blood from the kidneys is what causes the pulse rate, and it depletes any man to lose blood. X don’t think his pulse rate will ever be any less as long as that blood keeps up. I said I thought the conditions I testified to were permanent. I meant his disability was permanent.”

Dr. T. W. Crowder, who made a specialty of eye, ear, nose, and throat practice, testified that he had examined the appellee’s eyes by request, and that from his examination, ' independent of what appellee said, there was no defect in his vision that he could find. He said that he had appellee to read letters across the room 15 feet; that “there was a discrepancy in the answers of appellee with respect to his ability to see with one eye and both eyes, by which he said he meant that, with 'both of his eyes tested together, appellee read type at 15 feet that he should have read at 20, with his right eye he read the same type, most of the letters, with his left eye he called only part of the letters at 15 feet, which he should have read at 30 feet.” This witness further testified:

“Assuming that a man was injured the 15th day of March and along about the 1st of July he commenced to have dimness of vision and pain in his eyes and can’t see well and his eyes give him pain when he reads, a condition of that kind could result from a diseased condition of the kidneys. A great many things cause a weak condition of the eyes; a rundown condition of the whole system would cause it, or any special disease that would pull you down in a general way. Anything that is depleting could cause a weakened condition of the eyes. If a man’s kidneys are weakened and caused to do excessive work, that is a depleting condition, and that would cause a rundown condition and weakened condition of the eyes, or could cause an organic condition there. With reference to the weakened condition we have got to depend almost entirely on what the patient tells us.”

Mrs. Plemmons, appellee’s wife, testified:

“I heard of Mr. Plemmons complaining of having been injured. I was in Chattanooga at that time. I noticed a difference in his appearance when I met him here to what it was when I saw him in February. When I saw him here he complained of his back and kidneys and the small of his back. Plis back was swollen and rigid, and swelling over the kidneys on each side. The swelling comes and goes. At times there is a swelling, and again there is not, but generally there is. There is no difference in the swelling now as compared to what it was when I saw him in April. He does not rest at night. He gets up during the night three or four times. His condition about getting up had been worse in the last three months. He says his eyes burn and hurt. He does not read very much. Plis eyes look red. After he has taken any exercise he does not rest.”

We have not, of course, attempted to quote all the testimony bearing upon the nature and extent of appellee’s injuries. It is too voluminous to do so. With respect to them the evidence is conflicting, but sufficient to support the judgment. Clearly, we would not be authorized to say that the judgment is so greatly against the preponderance of the evidence, if so at all, that it is clearly wrong, and under the uniform decisions of this state, unless we can so say, it should not be disturbed.

The next contention is that:

“The verdict of the jury for $4,500 is not supported by the evidence, and is so grossly excessive as to show the jury were influenced by some improper motive, and it should not be permitted to stand. With this contention we do not agree. The evidence quoted above, together with other testimony in the case, if true — and the jury have said in effect, by their verdict that it is — is amply sufficient to justify and support the finding of the jury that appellee, as the direct result of appellant’s negligence, had sustained damages in the amount awarded him.”

The third, fourth, and fifth assignments of error complain, respectively, of the court’s action in submitting to the jury the fifth, sixth, and seventh questions propounded to them. The fifth question is:

“Was defendant, Missouri, Oklahoma & Gulf Railway Company, guilty of negligence, as that term has been defined to you, in permitting the fastenings of said handhold to be in a defective condition, if it did, and out of repair, if it did, at the time plaintiff attempted to descend from said car?”

To which the jury answered “Yes.”

The sixth question is:

“Did the defendant use ordinary care, as that term has been defined to you, to maintain the fastenings of said handhold in a reasonably safe condition for brakemen to ascend and descend from said car at the time plaintiff claims to have received said injuries?”

To which the jury answered “No.” The seventh question is: .

“Was the negligence of said defendant, if any there was, in failing to use ordinary care to maintain the fastenings of said handhold in a reasonably safe condition, if it did so fail, the direct and proximate cause of plaintiff’s injuries, if any he received?”

To which the jury answered “Yes.” The contention is, in substance, that the submission of these questions was error, because the undisputed evidence shows that the car from which appellee alleges he fell was a “foreign car,” and the only duty of appellant was that of inspection and not the duty of maintaining said handhold in a safe and secure condition, and because the seventh question assumes negligence on the part of the appellant and submits an issue not raised by the pleadings. There was no error, at least of which appellant can complain, in the submission of either of the forgoing issues. The evidence doubtless showed that the car from which appellee fell was not owned by appellant, but belonged to another railway company, therefore a “foreign car,” but that fact, under the law as it exists now and as it existed at the time appellee was injured, did not relieve appellant of the duty of maintaining the handhold' upon said car which gave way and caused appellee to fall in a safe and secure condition. The statute of this state, passed in 1909 (Acts 1909, p. 65, §§ 5, 7), provides:

“That from and after January 1, 1910, it shall be unlawful for any common carrier engaged in commerce as aforesaid [intrastate commerce] to use, in moving intrastate traffic within said state any locomotive, tender, car or similar vehicle which is not provided with sufficient and secure grabirons, handholds and foot stirrups”; and “that any employé of any common carrier engaged in commerce as aforesaid who may be injured or killed, shall not be held to have assumed the risks of his employment or to have been guilty of contributory negligence if the violation of such carrier of any provision of this act contributed to the injury or death of such employé.”

Likewise the Safety Appliance Act of Congress, enacted in 1893 and amended in 1896, provides “that it shall be unlawful for any railroad company to use any ear in interstate commerce that is not provided with secure grabirons or handholds,” and provides that any employé injured on any car in use contrary to the provisions of this act shall not be deemed to have assumed the risk, although he had full knowledge. The act of Congress of 1908 made contributory negligence also unavailable as a defense, which under the prior acts had remained a defense. Schlemmer v. Railway, 220 U. S. 690, 31 Sup. Ct. 661, 66 L. Ed. 596; U. S. Comp. St. 1913, § 8659. Another of our state statutes (Laws 1909, p. 280, § 3) enacts:

“That any action brought against any common carrier under and by the provisions of this act to recover damages for injuries to or the death of any of its employés, such employé shall not be held to have assumed the risks of his employment in any ease where the violation of such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employé.”

In Railway Co. v. Kurtz, 147 S. W. 658, the foregoing statutes are quoted, and it is held that they make it the absolute duty of railway companies to have the cars in use equipped with secure handholds, regardless of the question of reasonable care to have and keep them secure, and that where an injury to an employé happens from an insecure handhold, said statutes deny to the employer the defenses of assumed risk and contributory negligence, citing Delk v. St. Louis & S. F. Ry. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590. In the case cited it is further held that where the accident complained of happened after the statutes referred to took effect, it is immaterial whether or not the train of the railway company was engaged at the time the accident occurred in state or interstate traffic; that “railway companies, under these statutes, are required to do more than exercise ordinary care to have and maintain secure handholds, etc. They are required to do more than exercise a high degree of care. They are required to do all things that are possible to that end, even if they have for that purpose to keep inspectors on every train they move. Under these statutes there would seem to be no defense available unless it be that the plaintiff himself deliberately caused the handhold, which gave way and injured him, to be insecure.” The accident resulting in appellee’s injuries happened March 13, 1913, and at that time the statutes quoted were in force. The train upon which appellee was at work was engaged In interstate commerce, and it was appellant’s duty to have the car from which he fell equipped with secure handholds. This duty the jury have said it failed to perform, and, the law being as stated, there was no error of which the appellant can complain in submitting the question under consideration for the determination of the jury.

There was no error in the admission of the testimony of the witnesses Pope and Diggs to the effect that appellee was “complaining with his back and shoulder.” At least none appears either from the bill of exception reserved to the court’s ruling or any statement of the evidence made in the brief. Our examination of the statement of facts, however, leads to the conclusion that the declarations of the appellee of pain and suffering, as detailed by the witnesses Pope and Diggs, were declarations or expressions of present pain and suffering and admissible in evidence. Railway Co. v. Johnson, 95 Tex. 409, 67 S. W. 768; Railway Co. v. Hibbitts, 49 Tex. Civ. App. 419, 109 S. W. 228.

Under the statutes quoted above and the decision made in Railway Co. v. Kurtz, supra, if it be conceded that appellee knew the handhold which gave way and caused him to fall, was defective, he did not assume the risk of using it. There is no pretense that he produced the defective condition of the handhold, and it seems that in no other event would the defense of assumed risk be available to appellant. The evidence, however, does not show that appellee knew of the defective condition of' the handhold before the accident.

The verdict of the jury is sustained by the evidence.

None of appellant’s assignments of error disclose any ground for a reversal of the case, and the judgment of the court below is therefore affirmed.


author: HARPER, O. J.

text:
    MURPHY v. MURPHY.
    (No. 366.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec.
    Appeal and Error (§ 302) — Assignments op Error — Sufficiency.
    Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), providing that the assignments made as grounds for a new trial in a motion duly filed shall constitute the assignments of error on appeal, where a motion for a new trial purported to give a history of the proceeding, but contained no charges of error on the part of the trial court and nowhere alleged that the evidence was insufficient to sustain the verdict, it was insufficient to present any error for .review on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.

      Action by Mary H. Murphy against William J. Murphy. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. I-I. Holland and E. H. Bailey, both of Houston, for appellant. Monta J. Moore, of Los Angeles, Cal., for appellee.

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

   HARPER, O. J.

This is an appeal from a decree of divorce in favor of appellee, upon the grounds of abandonment.

Appellant’s brief cannot be considered by us for the reason that it does not comply with the statutes and rules for the courts of Texas in presenting assignments of error.

Article 1612, Revised Civil Statutes, 1911, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), reads as follows:

“The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of the record from the clerk’s office; provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error • and need not be repeated by the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of.”

The motion for a new trial now constitutes the assignments df error and, to be sufficient, the assignments therein must be distinctly specified, or else they are waived.

The motion for a new trial found in the record in a narrative form gave the history of the disagreements and troubles, etc., of the parties to the suit from the date of separation up to the time of filing the motion. It nowhere charges that the court erred, and nowhere charges that the evidence was insufficient to sustain the verdict.

And the brief filed in no way complies with rules 29, 30, etc., applicable to briefs to be filed in this court.

There being no error apparent of record, the cause is affirmed.


author: HIGGINS, J.

text:
    SOUTHERN PAC. CO. et al. v. WALKER.
    (No. 362.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Railboads (§ 350)— Collision with Automobile — CONTRIBUTORY NEGLIGENCE — Question eor Jury.
    Evidence, in an action for collision at a crossing of a car, backed by a switch engine, with an automobile, held to make the question of contz-ibutory negligence one for the jury.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    2. Railroads (§ 350) — Collision with Automobile — Discovered Peril — Question eor Jury.
    Evidence, in an action for collision with an automobile, at a crossing, of a car backed by a switch engine, held to make a question for the jury on the issue of discovered peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    3. Railroads (§ 350) — Crossing Accident^ Negligence — E'ailure to Maintain Flagman.
    Evidence, in an action for collision, at a railroad crossing, with an automobile, held to make a question for the jury on the issue of negligence in failing to maintain a flagman at such point, under the rule that such question is properly submitted in the case of a crossing unusually dangerous, because of large travel or operation of cars, or obstructions or noises calculated to mislead or confuse those crossing.
    [Ed. Note. — For other cases, see .Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    4. Appeal and Error (§ 1027) — Review-Immaterial Matters.
    Defendants may not complain of the insufficiency^ evidence of grounds of negligence alleged in the petition, other than those which were submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033 ; Dec. Dig. § 1027.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Annie Walker against the Southern Pacific Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed on condition of remittitur.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, W. A. Vinson, and Paul Kayser, all of Houston, for appellants. H. Masterson and A. L. Jackson, both of Houston, for appellee.

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

   HIGGINS, J.

The appellee brought this suit to recover damages of the appellants, alleged to have resulted from personal injuries sustained in a collision between an automobile driven by her and a switch engine operated by appellants. Verdict and judgment was rendered in her favor in sum of $5,665 and in favor of Mannheim Insurance Company, intervener, for $300 damages to the automobile.

The two grounds of recovery embraced and submitted in the charge were: (1) The failure to maintain a flagman at a crossing of extraordinary danger; and (2) the failure of the switching crew to stop the engine and avert the injury after plaintiff’s peril had been actually discovered by them.

The sufficiency of the evidence to support the verdict is questioned; the contention being made that the injury appears to have been proximately caused by plaintiff’s negligence.

The accident occurred in the city of Galveston, at the intersection of Twenty-Ninth and Strand streets, between 3 and 4 o’clock in the afternoon. Plaintiff had driven in her ear from Houston, and was traveling upon Twenty-Ninth street, going north, to the steamship piers. She was not familiar with the crossing, having never been there before. Defendants’ switch engine was on Strand street, approaching from the west. It was backing and bad a passenger coacb attached. On the south side of Strand and west side of Twenty-Ninth street was a brick wall and shed which obstructed the view of trains upon Strand approaching from the west. There were gongs at the crossing which would ring constantly while an engine was approaching the same. It appears that the crossing is a very busy one and more or less noise and confusion there. Miss Walker testified she approached the crossing very slowly, at rate of five or six miles an hour. Di'd not hear bell or whistle or see train, and, as she approached and neared the crossing, her attention was attracted by men shouting, which confused and startled her. She looked to her right (east), and then turned and looked to the left (west), and just as she did so, the engine coming from the west struck her car.

Under the facts detailed, we are of the opinion that the question of plaintiffs negligence was an issue properly submitted, and the jury’s finding must be sustained. The margin, however, is very close.

But, if her negligence should be conceded, the general verdict in her favor is amply supported on the issue of discovered peril. The engineer operating the engine with which she collided testified: That he was traveling five or six miles an hour. The engine was in perfect working condition, and there was no difficulty in applying and taking the air, and he could have stopped in 12 or 15 and possibly 8 feet, because he shoved the automobile about 8 or 10 feet. That he got the stop signal as the west end of the engine got about even with the west sidewalk of Twenty-Ninth street. Twenty-Ninth street is 80 feet wide between property lines and 48 feet between curb lines. The jury might have found that the engineer made no effort to stop until his engine was in actual contact with the automobile, if they accepted as true his statement as follows:

“Going at the rate of speed that I was traveling at that time, I guess I could have stopped my engine with the appliances that I had at hand in possibly about eight feet. I guess I stopped possibly in about eight feet, because I shoved the automobile about eight or ten feet.”

In any event, he got the stop signal as the west end of the engine got about even with the west sidewalk of Twenty-Ninth street, and he traveled from that point about 40 feet before stopping on the opposite side of the street. Furthermore, according to the testimony of one of the switchmen, he probably received the stop signal when the eastern end or footboard of the engine passed a point 15 or 18 feet west of the western sidewalk. So it must be held that the issue of discovered peril was clearly raised.

It is next asserted the evidence discloses that the engine, in approaching Twenty-Ninth street, was operated with all due care and caution, and therefore the failure to maintain a flagman at the crossing should not have been submitted as a basis of recovery.

The rule is recognized in this state, in cases of unusually dangerous crossings and intersections of wagon roads or streets with railroad tracks at grade, arising from the large travel or operation of cars, or the existence of obstructions or conflicting noises calculated to mislead or confuse those passing over such crossings, that it is proper to submit the failure of the railroad company to maintain a flagman at such point as actionable negligence predicated on the hypothesis that a person of ordinary prudence, operating trains under such circumstances, would have done so. Railway Co. v. Magee, 92 Tex. 616, 50 S. W. 1013; Railway Co. v. Magee, 49 S. W. 156; Thompson v. Railway Co., 11 Tex. Civ. App. 307, 32 S. W. 191; Railway Co. v. Gibson, 35 Tex. Civ. App. 66, 79 S. W. 352; Railway Co. v. Gibson, 83 S. W. 862, affirmed by Supreme Court 99 Tex. 98, 87 S. W. 814; Railway Co. v. Moore, 107 S. W. 658.

It is shown by the evidence that a great number of engines and trains were operated over this crossing every day and the travel there was heavy. The obstructions to vision and noisy character of the crossing have been noted, and the evidence fairly raised the issue of negligence in failing to maintain a flagman at that point.

There is no merit in the third proposition subjoined to the first assignment for the reason that the only issues submitted as grounds for recovery were the alleged negligence in failing to have a flagman and in failing to use proper care to avert the injury after the engine crew had discovered the peril. Hence it is needless to review the evidence in its various aspects relating to grounds of negligence alleged in the petition, but not submitted in the charge.

This disposes of all questions raised, except the third assignment, complaining of the amount of the verdict in Miss Walker’s favor.

A careful review of the evidence upon this phase of the case, and considering the extent and evident temporary nature of her injuries disclosed thereby, clearly indicates that the amount of the verdict is excessive, and a remittitur of $2,000 should be required as a condition of affirmance.

If, within 20 days from this date, a remit-titur of that amount be entered, the judgment will be affirmed; otherwise it will be reversed and remanded.