author: BUCK, J;

text:
    ACME LAUNDRY v. WEINSTEIN.

    (No. 8281.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.
    Rehearing Denied Jan. 15, 1916.)
    1. Master akd Servant <&wkey;302 — Liability por Servant’s Torts.
    While a principal is liable for the consequences of acts expressly directed and authorized by him, though performed by an agent or servant, and is charged with the responsibility therefor to the same extent as if such acts had been performed by him in person, his responsibility is not limited to acts performed by himself or by an agent under his express authority, and the important inquiry is not whether the agent was authorized to do, or omit to do, the act the doing or omission of which constitutes negligence, or whether it was done or omitted in violation of instructions, but whether it was done or omitted by the agent in-the course of his employment and while he was engaged in the business of his principal.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <®¿>302J
    2. Master and Servant <&wkey;330 — Liability bor Servant’s Torts.
    W'hen a recovery is sought of a master for an injury inflicted by a servant, plaintiff must show that the servant did the wrong while acting within the scope of his employment.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. &wkey;>330.]
    3. Master and Servant <&wkey;302 — Liability bor Servant’s Torts — “Course ob Employment.”
    A servant is acting within the “course of his employment” when he is engaged in doing for his master either the act consciously and specifically directed, or any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it; and the test is not whether the act was done while the servant was in the place appointed for the service, or during the time in which he was engaged in such performance, but whether it was a natural and not a disconnected or extraordinary part or incident of the service contemplated.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <&wkey;>302.
    Por other definitions, see Words and Phrases, Pirst and Second Series, Course of Employment.]
    4. Master and Servant &wkey;>305 — Liability for Servant’s Torts.
    That a negligent act of a servant resulting in an injury may not have been authorized by the principal, or may have been forbidden, will not necessarily relieve the master or principal from liability.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. &wkey;305.]
    5. Master and Servant <&wkey;330 — Injuries to Third Persons — Sueficienoy ob Evidence.
    In an action for injuries to a boy struck by a barrel thrown into an alley from the window of a laundry in removing rubbish from a room in which supplies were kept, evidence held to support a finding that the foreman of the washroom and an employé working under his authority were acting within the scope of their employment, though it was claimed that the work was being performed after the completion of their regular duties for the day, and that there was a janitor whose special duty it was to clean up the building and each room thereof.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. &wkey;330.]
    6. Master and Servant <&wkey;302 — Liability bor Servant’s Torts.
    Where it was one of the duties of the foreman of the washroom of a laundry to go to a room where supplies were kept for necessary supplies, it was within the scope of his employment for him to remove rubbish from such room, in order that he might more conveniently and efficiently perform the service specially delegated to him, though the removal thereof was not specially authorized; it being a natural incident to and growing out of the particular service delegated to him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. &wkey;302J
    7. BIaster and Servant <&wkey;302 — Liability for Servant’s Torts.
    To render a master liable for the act of a servant, it must be done within the scope of the servant’s general authority in the furtherance of the master’s business and for the accomplishment of the object for which the servant is employed.
    [Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <&wkey;>302.]
    8. Damages <&wkey;186 — Loss of Services — Sufficiency of Evidence.
    In a father’s action for the loss of his minor son’s services because of injuries necessitating the removal of a kidney, evidence held to sustain a finding that plaintiff’s minor son was, by the injury complained of, rendered incapable of performing manual labor, or that his capacity to so perform such labor had been greatly impaired, irrespective of whether the loss of a kidney would, in all cases, impair the ability of one to labor or earn money.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 509; Dec. Dig. <&wkey;>186.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by E. Weinstein against the Acme Laundry. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John W. Wray, of Ft. Worth, for appellant. McLean, Scott & McLean, of Ft. Worth, for appellee.

       Application for writ of error pending in Supreme Court.

   BUCK, J;

Sol Weinstein, son of appellee, nine years old, while going from school to his home, in passing through an alley at the rear of appellant’s building, was seriously and permanently injured by a barrel, which was thrown from an upper story .window of appellant’s building, coming in contact with his body. The injury was of such a nature as necessitated a surgical operation by which the right kidney of the boy was removed. He was in the hospital for several weeks, and after being removed to the home of his parents was confined to his bed for some time. Plaintiff alleged, and the evidence tends to support such allegations, that the injury had affected the boy seriously, both in mind and body, from which he had not recovered at the time of the trial, about four years after the accident. It was alleged that the* injury was caused by the negligence of the defendant company, a corporation, and its employes ; that the barrel which caused the injury was thrown from the window by C. R. Crawford and Floyd Bingham, employes of the defendant at the time, in the course of their employment with appellant, and while they were doing work within the scope of their employment; that the place where the boy was injured was on a public thoroughfare, constantly used by pedestrians and persons in vehicles. It was further alleged that plaintiff had expended four hundred dollars in medical and hospital bills necessarily incurred, and which was alleged to be the reasonable value for such services. Plaintiff further alleged that he had been damaged by reason of the impaired ability of the boy to render his parents service and labor while a minor, and asked judgment for both said expenditures and said loss of service. Defendant answered by a general demurrer and general denial. C. R. Crawford was foreman of the washroom of the laundry, while Bingham was an employs working under Crawford’s authority. On the occasion of the injury, after he had finished the performance of his regular duties of foreman' of his department, he concluded to go up stairs and clean out the room where supplies were kept, and instructed Bingham to go with him to assist him. There were in said room empty barrels and boxes, and other refuse material, which Crawford concluded ought to be removed, as testified to by him, because the rubbish was in his way. The two collected the rubbish and pitched it out of the window and, as the last barrel was pitched out, the little boy, coming from school, passed along the street or alley and was hit and injured, as before set out. The main controversy between plaintiff and defendant is as to whether or not Crawford and Bingham were, at the time of the accident, acting within the scope of their authority under their employment with the laundry, inasmuch as there was a janitor whose special duty it. was to clean up the building and each room thereof, and no special authority or instruction had been given to either Crawford or Bingham to do this work, and the work was performed after the completion of the regular duties of each for the day.

The cause was submitted to the jury on special issues, which the jury answered and found as follows: First, that Crawford was acting within the scope of his employment at the time the barrel was thrown out of the window; second, that Bingham was also so acting at said time; third, that the throwing out of the window of the barrel was negligence; fourth, that such negligence was the proximate cause of the injury complained of; fifth, that the damages sustained by plaintiff amounted to $1,400. Upon this verdict the court rendered judgment for plaintiff for said $1,400, from which the defendant appeals.

The court instructed the jury that, if they found and believed from a preponderance of the evidence that at the time Crawford and Bingham went into the stockroom and threw the barrel out of the window, the day’s work for which Crawford and Bingham were employed to perform had been done, and Craw-. ford and Bingham had the right to leave the defendant's establishment, but voluntarily remained therein, and voluntarily undertook to do the work of cleaning out the stockroom, they would answer issues 1 and 2 in the negative. Appellant’s first assignment is directed to the refusal of the court to give a peremptory instruction in its favor, and its second, third, fourth, fifth, and sixth attack the finding of the jury in answer to issues 1 and 2. Its seventh assignment is leveled at the verdict of the jury as to the measure of damages. Since it is practically admitted by appellant that the throwing out of the barrel under the circumstances was negligence on the part of Crawford and Bingham, we need only to consider, with reference to the first six assignments, the question of whether or not the employer was liable for such negligent acts, and whether or not said employés, while attempting to clean up the stockroom, wore acting within the scope of their employment.

While the principal is liable for the consequences of the acts expressly directed and authorized by him, though performed by an agent or servant, and is charged with the responsibility therefor to the same extent as if such acts had been performed by such principal in person, yet his responsibility is not limited to those acts performed by the principal himself or by an agent under his express authority. As is said by Meehem on Agency, vol. 2, § 1874:

“In determining the principal’s liability for the agent’s negligence, the important inquiry is, not whether the agent was authorized to do, or omit to do, the act, the doing or not doing of which constitutes the negligence complained of, or whether the act was done or omitted in violation of the principal’s instructions, but whether the act was done or omitted by the agent in the course of the employment, and while he was engaged in the business of his principal. In endeavoring to state a rule for such cases, it was said by a learned judge: ‘In most cases where the master had been held liable for the negligence of his servant, not only was there an absence of authority to commit the wrong, but it was committed in violation of the duty which the servant owed the master. The principal is bound by a contract made in his name by an agent only when the agent has actual or apparent authority to make it; but the liability of a master for the tort of his servant does not depend primarily upon the possession of an authority to commit it. The question is not solved by comparing the act with the authority. It is sufficient to make the master responsible civiliter if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this, although the servant, in doing it, departed from the instructions of his master. This rule is well founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is committed to an agent or servant, the obligation is not changed. The omission of such care is the omission of the principal, and for injury resulting therefrom to others, the principal is justly held liable. If he employs incompetent or untrustworthy agents, it is his fault; and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided, only, that the agent was acting at the time for the principal and within the scope of the business intrusted to him.”

Quoting further from the same authority (section 1875) :

“Nevertheless, the liability of the master in these cases is based upon the general principles of agency, and cannot otherwise exist. It is simply another aspect of the question of authority, with its incidents, which was discussed in a preceding section. There is no rule of public policy or convenience that a master shall be liable for all the acts or defaults of his servants. For what acts or defaults is he liable? For those and those only for which he can in some way fairly be deemed to be responsible. He directed the doing of a given act; that very act was negligently done, hut it is within the ordinary range of human experience that that may happen. He directed the doing of a given act; the servant did also some other act which was a natural incident or attribute of the main act or a natural and proximate consequence of it; to do that additional act at all was negligence, or it was negligently done. This also is within the ordinary range of human conduct. It is possible, therefore, in these cases to see some direct relation between the authority and the act complained of —to trace some natural and direct causal connection between the authority and the act.”

As said in the case of Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902:

“When a recovery is sought of the master for an injury inflicted by his servant, the plaintiff must show that the servant did the wrong while acting within the scope of his employment.”

In the case of Railway v. Yarbrough, 39 S. W. 1096, it appeared that an engineer sounded a whistle merely to frighten plaintiff’s horse, and the Court of Civil Appeals for the Fifth 'District said that:

“The charge of the court is based upon the theory that, if there was no occasion for the employés in charge of the engine to blow the whistle, and they blew it for the purpose of frightening plaintiff’s horse, and not in discharge of duty, the railway company would be liable for damages resulting therefrom. This is not the law. If there was no occasion for blowing the whistle in furtherance of the master’s business, and the act of the employé in causing the whistle to blow was solely for the purpose of frightening the horse of plaintiff, then the act cannot be said to have been done within the scope of his employment, so as to charge the master with its consequences.” Railway Co. v. Crutcher, 141 S. W. 137.

What is meant by “course of employment” as used in this connection? In the words of Mr. Meehem, § 1879 et seq.:

“Since no act can be completely isolated from its surroundings, since every act must have its penumbra of incident and attribute, it is essential that some term shall be found which shall include, not merely the act itself, but this train of attendant circumstances. For the lack of a better term, it is said that in order to charge the master with the servant’s negligence, the servant must be acting in the ‘course of his undertaking’ or ‘within the course of his employment.’ This term ‘course of his employment,’ like the corresponding term ‘the scope of the authority’ in cases of agency, and ‘the scope of the business’ in cases of partnership, is one not capable of precise definition, although many attempts have been made to define it. It is largely a question of fact, and its determination may vary in each case in view of the particular circumstances. The utmost that can ordinarily be said is that a servant is acting within the course of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed, or any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the act or a natural, direct, and logical result of it. If in doing such an act, the servant acts negligently, that is negligence within the course of his employment. As lias already been pointed out, the question of what acts can be deemed to be done within the course of the employment is not merely a question of time or place. Not every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within the course of the employment, or within the scope of the authority. The test lies deeper than that; it inheres in the relation which the act done bears to the employment. The act cannot be deemed to be within the course of the employment, unless, upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated. A servant who, while driving his master’s team upon the master’s business and holding the reins in one hand, amuses himself by striking people, within reach, with the whip, which he holds in the other hand, does so while he is acting generally for his master and while he is in the place in which Ms service requires him to be, but his act in striking people with the whip is not within the course of his employment, and his master is not liable for it.”

But, on the other hand, it is equally true that the fact that the negligent act resulting in the injury may not have been authorized by the principal, or in fact may have been forbidden, will not therefore necessarily relieve the master or principal from liability. In Railway Co. v. Derby, 14 How. 468, 14 L. Ed. 502, the United States Supreme Court held that, where a railway engineer, who -was running a train at a time when he had been expressly forbidden to do so, and collided with a special train containing the plaintiff, and thereby injured him, the railway company was liable, and, further, it was held in Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361, that where the agent of a lumber dealer, in order to promote his convenience in handling it, caused lumber to be piled in a place where his principal had instructed him not to have it piled, and the lumber, being negligently piled, fell upon' and injured the plaintiff, the principal was liable. In Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405, where a salesman in a gun store, who had been expressly instructed not to load guns in the store, loaded one for the purpose of demonstrating it to a customer, who refused to buy unless this was done, and the gun, going off, accidentally shot plaintiff, it was held that the employer was liable. See also Railway v. Rodgers, 89 Tex. 675, 36 S. W. 243; Cook v. Nav. Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52.

But we think the evidence is sufficient to sustain the jury’s findings to which complaint is made. Crawford testified, in part, as follows:

“I was in the employment of the Acme Laundry as foreman; it was my duty to see that things were kept in shape, and I taken it on myself. I went to the storeroom to bring down some supplies for the washroom, perhaps, and at that time there was quite a few barrels, empty boxes, and rubbish in my way, and I decided, while I was up there, I would get one of the boys and make a little cleaning up. Well, to make things short, I just gathered the things up, and we put it out this second floor window, looking between every piece that went out— looking between the times; and as we taken the last barrel we were to put out, there was a couple of boxes and things to be moved between it, it taken a little more time, so when we threw it out I heard some peculiar kind of a noise, and I looked down and saw this last barrel had struck the boy. * * * It was my duty, in connection with my washing, to go upstairs and get the soda and things to use in the washing. * * * What caused me to clean up the room was there was two weeks of rubbish, boxes, and empty barrels, or about a week’s rubbish; that rubbish consisted of about four or five barrels and some little white pine boxes that were knocked to pieces. Floyd Bingham assisted me in throwing that barrel out of the window. He was a wringer employed under me in the washroom, wringing shirts for me at that time. * * * To get around those boxes and barrels I could have got between them without putting it out, but I felt it was my duty, that the trash was there — to move it and get it clear out of the way. There were two keys to that room at the time of the injury; I had one of the keys. * * * They did not have any other room except the one I went to in which they kept these substances for washing clothes. I had been head washman for two or three years. I had the care of that particular room something like about two or three years, I suppose. I had carried the key to that room about two years before the injury. * * * It was part of my duties as head washer to get the material and supplies in to other boys. * * * This young man Bingham who was helping me, he did what I told him to do; so did the janitor.”

Bingham testified, in part, as follows:

“I acted under Crawford’s orders. Mr. Wheeler placed me under him. Mr. Wheeler was the proprietor of the laundry. * * * When I went to work at the laundry Mr. Wheeler instructed me to do what Crawford said.”

From the testimony quoted it appears: First, that Crawford in the position he occupied had been charged with duties involving discretion; second, that in removing the rubbish from this room he was doing so, as he thought, in furtherance of his employer’s business; third, that he had at least a limited charge and control of said room; and, fourth, that in removing the rubbish he was performing a service conducive to his convenience as such head washman in the discharge of the duties devolving upon said position. For, as it was his duty to go to this room for the supplies needed, and such act was plainly within the scope of his employment, it can hardly be said with reason as to the attempt to remove the rubbish in order that he might more conveniently or efficiently perform the service specially delegated to him, that his former act, though not specially authorized, was not a natural incident to and growng out of the particular service delegated to him. To render the master liable for the act of a servant, it must be done within the scope of the general authority of the servant, in the furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. I. & G. N. Ry. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; 6 Labatt’s Master and Servant, § 2277.

The language used by the author in the section last cited is as follows:

“It is well settled that if the act complained of was incidental to the discharge of the functions covered by the servant’s general authority, the master cannot avoid liability on any of the following grounds: That he did not specifically authorize the commission of that particular act; that he had no knowledge of it; or that it involved the abuse or excess of authority conferred upon him.” Higgins v. Railway Co., 46 N. Y. 23, 7 Am. Rep. 293; Robards v. Sewer Pipe Go., 130 Ky. 380, 113 S. W. 429, 18 L. R. A. (N. S.) 923, 132 Am. St. Rep. 394; Oil Co. v. Parkinson, 152 Fed. 681, 82 C. C. A. 29; Hardeman v. Williams, 169 Ala. 50, 53 South. 794; T. & P. Ry. Co. v. Hayden, 6 Tex. Civ. App. 745, 26 S. W. 331.

In the case of Higgins v. Railway Co., supra, the court uses the following language:

“The master’s liability for the negligence or tort of his servant does not depend upon the existence of an authority to do the particular act from which the injury resulted. In most cases where the master has been held liable for the negligence of his servant not only was there an absence of authority to commit the wrong, but it was committed in violation of the duty which the servant owed to the master.”

Therefore, we are of opinion that assignments 1 to 6, inclusive, must be overruled.

The seventh assignment is as follows:

“The verdict df the jury as to the measure of damages is wholly unsupported by the testimony, and a new trial should be had: First, because there was no testimony, expert or otherwise, that would inform the jury of the effect the loss of the kidney would have on the boy’s physical condition and his ability to perform his ordinary duties to his father; second, because the mere fact of the loss of a kidney was not sufficient for the jury to infer that it would impair, in any manner or way, the physical or mental ability of the boy to perform his ordinary duties to the plaintiff; third, because it was incumbent upon the plaintiff to establish to the jury that the loss of a kidney would impair the physical ability of the boy to perform his ordinary duties that he would most probably have performed to the plaintiff; fourth, because there was no testimony that disclosed that the loss of a kidney would in any_ way impair or lessen the boy’s earning capacity.”

The plaintiff testified in part as follows:

“I am engaged in the mercantile business in Ft. Worth at 105 Houston street, hardware business. * * • I was out about $400 for hospital and doctor’s bills. Just before the time my boy got hurt he was a solid child and never was sick a minute. Since his injury he has not been able to do any work or help me m the store any at all. He cannot do nothing. Whenever I toll him to sweep out the store or pick up a few nails from the floor he cannot do it; he cannot bend himself. He insists that he cannot. 1-Iis condition in the last two years is one day well and the next day he is sickly, and the third day he is sick entirely, and we keep him always under the doctor and doctor him at home. I have had Dr. Furman with him also at my home. And he treats him many times at home at nights, and daytimes sometimes we take him to the office. In the business I am engaged in I can use a boy from 10 to 21 years of age to assist me, but not that boy. A boy in my business there could do everything in a hardware store — handle nails, handle hinges, sell hinges, buy hinges, sweep the store, move one thing and another. A hardware store has got to be clean every minute; move things from one place to another every minute. * * * Before he was hurt he had been of assistance to me in the store. He used to come in and help me, and he used to come every time after school to help me carry in the show that we have to show people outside, and in the morning he used to come to help me carry out the show, and now I have to do that myself or hire it done. For the last few years since the injury, the boy has not done a thing in the way of work around the store.”

Irrespective of whether or not the loss of a kidney would, in all cases, impair the ability of one to labor or earn money, the evidence quoted is sufficient to sustain a finding that in the present case the plaintiff’s minor son was, by the injury complained of, rendered either incapable of performing any manual labor, or, at least, that his capacity to so perform manual labor has been greatly impaired. For such loss of service on the part of his minor son the jury has awarded the plaintiff $1,000, if we subtract from the total amount the $400 which the uncontra-dicted testimony shows was incurred in the way of medical treatment and hospital fees. And while the precise question is not raised in the assignment, and therefore we do not have to decide it, yet it has been held that, in the absence of testimony, expert or otherwise, as to the reasonable value of services, the loss of which is asserted as an element of damages, the jury, who are in full possession of all the details of the entire transaction, may find the value upon their own judgment, provided there be enough in the evidence as to the character of the services to enable them to judge. Hall & Co. v. Immigration Association, 53 Tex. Civ. App. 592, 116 S. W. 831. And upon an analogous proposition might be cited the case of Railway v. Harris, 172 S. W. 1129. The seventh assignment is overruled.

The judgment of the trial court is, in all things, affirmed.
      <§=3Bor other eases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. WATTS.

    (No. 5519)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Oakriebs &wkey;315 — Injury to Passenger— Pleading — Recovery.
    Where, in an action for injuries to a passenger from falling on the steps while she was leaving the station, plaintiff alleges conjunctively several grounds of negligence which she charges proximately caused, or concurred in causing, her injuries, she is entitled to recover on proof of either, if shown to be the efficient sole cause, or concurring cause, of her injuries.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1281, 1282; Dec. Dig. &wkey; 315.)
    2. Trial &wkey;>29 — Submission oe Issues — Weight oi? Evidence — Intimation ob Opinion.
    In a negligence case, wherein plaintiff al-léges conjunctively several grounds of negligence causing her injuries, the action of the court in determining that certain of the grounds are so supported by evidence as to authorize their submission to the jury is not objectionable as an intimation of opinion on, the weight to be given the grounds submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dec. Dig. &wkey;29.]
    3. Appeal and Error <&wkey;>1062 — Harmless Error — Submission oe Issues — Negligence.
    In a case involving several separate grounds of negligence, on any one of which recovery can be had if sustained by the evidence, the submission of one or more alleged grounds, not supported by evidence, in conjunction with those sufficiently supported, does not require a reversal, where the real issue is not thereby obscured and the jury not thereby induced to believe that the court thinks there is evidence of many wrongful acts of defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    4. Appeal and Error &wkey;>882 — Invited Error-Instruction.
    Where, in an action for .injuries to a passenger from falling on the steps while she was leaving the station, defendant requested the court to give a special charge, submitting all of the several issues pleaded by plaintiff in the conjunctive, especially directing their attention to the necessity of finding the existence of each act, that each act constituted negligence, and that each and all concurred in bringing about plaintiff’s fall, and that but for each and all of them combined her fall and injury would not have occurred, it could not complain that the court in its general charge, adopted the theory of such special instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3591-3610; Dec. Dig. <&wkey;> 882.]
    5. Trial &wkey;sl33 — Argument op Counsel — Action of Court.
    Statements of, counsel for plaintiff in the opening and closing arguments, apparently made to impress the jury with the idea that the general charge was of the same effect as a special charge asked, and would be a safer guide than the special charge, did not require a reversal, where those made in the opening argument were withdrawn, the court instructed that the jury was bound by the special charge the same as by the general charge, and no, further instructions on the matter were requested by defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <&wkey;>133.]
    6. Appeal and Error <@=e263 — Presentation' Below — Objection to Instructions.
    On appeal in a passenger’s action for injuries from falling on the steps as she was leaving the station, an objection that an instruction was too broad because it failed to provide that no recovery could be had for such injuries as were due to plaintiff’s own negligence subsequent to the injury could not be considered, where this specific defect was not pointed out in the exceptions filed below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. &wkey;>263.]
    7. Trial <&wkey;296 — Instructions—Error Cured by Other Instructions.
    The failure of a paragraph of the charge in a negligence case to provide that no recovery could be had for such injuries as were due to plaintiff’s own negligence subsequent to the injury, if error, was harmless, where the jury was informed in another paragraph that they could not allow plaintiff damages for any conditions brought about by her own negligence subsequent to the injury.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§705-713, 715, 716, 718; Dec.Dig. &wkey;296.]
    8.Carriers <&wkey;321 — Passenger Departing from Station — Instructions—Evidence.
    In view of Rev. St. 1911, art. 6591, fixing not less than one hour as a reasonable time within which passengers may depart from the station after their arrival at their destination, the refusal of an instruction, in a passenger’s action for injuries from falling on the steps while she was leaving the station, that the verdict should be for defendant if plaintiff, after alighting from the train, remained in the waiting room for purposes of her own and after all business of the railroad connected with her journey had been entirely finished, was not error, where there was no evidence that more than 30 minutes elapsed between the time she alighted from the train and the accident.
    [Ed. Note. — For other cases, see Cent. Dig. §§ 1247, 1326-1336, 1343; <&wkey;>321.] Carriers, Dec. Dig.
    9. Damages <&wkey;132 — Personal Injuries — Excessive Recovery.
    A recovery of $18,000 for injuries to a trained nurse, 39 years old, earning $25 a week, besides board, was not excessive, where it appeared that she was partially paralyzed, that one eye was rendered useless, and that she was but a wreck of her former self and almost in a helpless condition.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;
    Appeal from District Court, Yal Verde County; W. C. Douglas, Judge.
    Action by C. L. Watts against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Boggess & Smith, of Del Rio, and W. B. Teagarden, of San Antonio, for appellant. Joseph Jones, Geo. M. Thurmond, and Walter F. Jones, all of Del Rio, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

Appellee sued appellant to recover damaged for personal injuries, charged to have been received on account of falling from the steps of appellant’s passenger station at Comstock on August 18, 1914, at 6 o’clock a. m. She alleged that it was dark, and as she was descending the steps she slipped and fell, and her left foot was caught between the boards of the steps, whereby she was injured, as set out in the petition. She alleged that appellant was guilty of four distinct acts of negligence, each of which directly caused, or contributed to cause, her fall and to produce the injuries, viz:

“First. In allowing said steps to become old and worn and unfit, and to be and remain covered with soft mud and small gravel, which caused her foot to slip or roll while she was in the act of stepping down upon them.
“Second. In failing to have a back to said steps, which would have held her foot when she slipped on the step, and have prevented her fall, and would have prevented her foot being caught between said steps.
“Third. In failing to have a hand or side rail on the ends of said steps which would have enabled her to have avoided the fall when her foot slipped.
“Fourth. In failing to have the steps sufficiently lighted to enable her to see where she was stepping, and the condition of the step before using it.”

The answer consisted of denials of the material facts alleged, and pleas of contributory negligence before and after the fall, as follows:

“With full knowledge of all the existing and surrounding conditions present at the time she attempted to go down the steps of the station building, she did not act and step and place her feet and walk with such care and caution as a person of ordinary care and prudence would have done, but heedlessly, carelessly, and rapidly walked down the steps, without properly observing where and how she placed her feet, and was negligent and careless in this respect, and in other respects unknown to this defendant, but well known to her, and peculiarly within her knowledge, and because of the said facts and conditions and conduct on plaintiff’s part, she assumed the risk of existing conditions, whatever they were, and was guilty of negligence which caused, or at least contributed to, the injuries complained of. Wherefore she ought not to recover.”
“Defendant further charges that if, in fact, plaintiff was injured in manner and form as charged, which is not admitted, but is again denied, the injuries were not serious, but were temporary, and with proper care and attention would have been completely healed and cured in a very brief time, but instead of remaining quiet and treating the injury as a person of ordinary care would have done, she at once went to a public gathering and barbecue, and horse races, and walked about, and stood on her feet all day, and then at night went to a dance and danced and exercised, and frequently afterwards walked, and stood, and exercised herself, and failed to give the injury proper care and attention, and thus by her own imprudence and negligence aggravated the trouble, and brought it to its present condition, if in fact injuries now exist, which is not admitted.”

These allegations were denied in a supplemental petition. The trial resulted in a verdict and judgment for appellee in the sum of $18,000.

Plaintiff became a passenger upon defendant’s train at Del Rio, and got off at Com-stock at about 6 o’clock a. m., at which time a “misting rain” was falling and it was still dark. It had only rained enough for it to be a little muddy, just enough to stick to the feet good. Plaintiff entered the depot and remained about 30 minutes. When she left it was still so dark that only the houses could be seen. She went out of the depot at a door opposite the one by which she entered, intending to go to the hotel. The waiting room was lighted by an oil lamp hanging oil the wall by the side of and about at the top of the door through which she passed out, which was very dim, and the reflector behind the same cast the light towards the other door. This lamp gave no light upon the steps leading down from the door. These steps were about 6 feet in width, extending about 18 inches on each side of the door. There were four steps, made out of lumber 2 inches thick and probably about 11%-inch-es wide. The outer edge of each board protruded over the inner edge of the lower board about an inch and a half. The steps had no back boards or banisters. The floor of the building was about 2% feet from the ground. A considerable number of people had passed in and out over these steps that morning, as that entrance to the depot was on the side on which the greater portion of the town was situated. Mud had accumulated on the steps, and there was some evidence to the effect that the steps were worn, but it failed to show the extent. Plaintiff started down the middle of the steps, and when on the second step she stepped on mud, slipped, and fell down. She testified:

“When I stepped on the first step, when I stepped on the second step, I began to slip; the boys caught at me, I guess; anyway, I fell, and in scrambling, I fell straight back on my back, my foot going through, back of the steps. It had no board on it at the back; it was just old, worn steps; it was caused from mud; they were right slippery from the mud — the steps were. They were old steps; I noticed them that day, afterwards.”

On cross-examination she said:

“The step was slippery from mud is what caused me to fall. I know that because it was damp; it was misty and rainy, and it was muddy and slippery; my foot slipped was the cause of it. I was just going down those steps like any one else, just going down the steps, and I was very careful in stepping; yes, sir, I went with my face forward. Ño; I -don’t know as I went down the steps sidewise, but as well as I know, that is the way I always walk, right straight down, and of course I wasn’t, didn’t know that I was going to get hurt, and all this. I just stepped out and stepped off; going right forward is the way I went down the steps; didn’t walk down sidewise; didn’t put my foot sidewise j I just walked like a person naturally would right down the steps. Yes, sir; and when I got on the second step I felt that slick mud; I am sure it was mud, because I was muddy. Yes, sir; that was what caused me to slip and fall; I am sure that was what caused me to slip and fall, because in slipping I just kept slipping. My foot went through.”

Plaintiff also said:

“I had my umbrella in my hands, and it was closed, but I dropped it.”

The witness McBee saw no mud on the steps, and did not feel any under bis feet. He went down the steps immediately after plaintiff fell. He said:

“It was just about the middle of the steps where I went down, but more, I went more to the west side of the steps.”

The witness Gregory also went down the steps immediately after plaintiff fell, and he saw no mud, nor did he feel any under his feet. He gave Miss Whistler the middle of ■the steps, and he walked to one side. Miss Whistler testified the steps were very muddy; that she saw this as the lightning flashed, and felt the mud under her feet.

The above statement will show the main facts, and upon the issues of negligence pleaded we make the following conclusions of fact:

(1) While there is evidence that the steps were worn, it is not sufficient to show that they were worn to such an extent that the retention thereof constituted negligence, nor is there any evidence to show that the extent to which they had become worn was a proximate cause of plaintiffs fall.

(2) The evidence fails to show that defendant was guilty of negligence in permitting the mud to be on the steps at the time when plaintiff fell.

(3) The defendant was negligent in not having handrails along the sides of the steps, but the absence thereof did not proximately cause, or contribute to cause, plaintiff’s injuries, for she went down the center of the steps, and it does not appear that she tried to use, or could have used, handrails.

(4) The defendant was negligent in failing to have backboards upon the steps; and, while it is impossible to say from the evidence to what extent such failure caused the injuries to plaintiff, it is shown that it was the proximate cause of some injury to her. The evidence fails to show whether her ankle turned when she placed her foot on the mud and slipped, or whether it was wrenched by reason of her foot slipping through the back of the steps, thus causing her weight to be thrown upon such foot and ankle.

(5) The company was negligent in failing to maintain a light which would enable passengers to see the steps as they used them; and. there being evidence from which it could be found that the mud was only in the center of the steps, it is shown that the mud could, and naturally would, have been avoided, and therefore the evidence supports a finding that the failure to maintain such a light was a proximate cause, which concurred with the existence of the mud on the steps and the failure to have backboards on the steps in causing the injuries sustained by plaintiff.

The fourth and fifth conclusions of fact, above stated, are referred to as sufficient ground for holding that the court did not err in his rulings relating to the sufficiency of the evidence to sustain the verdict and judgment. Where a plaintiff alleges, though conjunctively, two or more grounds of negligence which he charges proximately caused, or concurred in causing, his injuries, he is entitled to recover upon proof of either, if it is shown to be the efficient sole cause, or concurring cause, of the injuries complained of. H. & T. C. Ry. v. Easton, 44 Tex. Civ. App. 97, 97 S. W. 833; T. & P. Ry. Co. v. Leakey, 39 Tex. Civ. App. 584, 87 S. W. 1168; G., H. & S. A. Ry. Co. v. Pitts, 42 S. W. 255; Shippers’ Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032; G., H. & S. A. Ry. Co. v. Yollrath, 40 Tex. Civ. App. 46, 89 S. W. 279; Pecos & N. T. Ry. v. Finklea, 155 S. W. 613; G.. C. & S. P. Ry. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395. Assignments of error Nos. 1 to 7 are overruled.

The defendant excepted to the charge prepared by the court, on the ground that there was no evidence justifying the submission of issues relating to the condition of the steps and the absence of a handrail. It is, of course, the province of the trial court to determine, in the first instance, whether there is any evidence to justify the submission of an issue, and if the fact that such decision was favorable to plaintiff was accepted by juries as an intimation from the court of the weight to be given thereto by them, and was given controlling effect, there would be no verdict adverse to the plaintiff, unless a peremptory instruction was given to return a verdict for the defendant. It is therefore evident that, in cases involving several separate grounds of negligence upon any one of which a recovery could be had if the facts sustain such ground, the effect of submitting one or more alleged grounds not supported by evidence in conjunction with those supported by evidence must not be given undue importance. It has been held that when such matters are submitted in the conjunctive a greater burden has been imposed on plaintiff than the law exacts, and defendant cannot complain. H. & T. C. Ry. Co. v. Johnson, 103 Tex. 324, 127 S. W. 539; G., H. & S. A. Ry. Co. v. Fry, 37 Tex. Civ. App. 555, 84 S. W. 664; Dallas Elec. Ry. v. Stone, 166 S. W. 708. We can conceive, however, of cases in which the practice may be carried to such an extreme as to obscure the real issue, and be calculated to induce the belief that the court thinks there is evidence of many wrongful acts on the part of defendant. We think it is unnecessary to decide whether this is such a case. In connection with the exceptions referred to, the defendant filed a further exception to the charge, criticizing it on the ground that it authorized a verdict for plaintiff upon a finding of negligence with reference to any one or all of the grounds enumerated in the petition, whereas the evidence showed as a matter of law that such grounds did not all concur in producing the fall and injuries, or that at least whether or not all concurred was a question for the jury, and this should be explicitly stated to the jury if the case is given to them. The record shows that on the same day defendant requested the court to give a special charge, submitting all of the issues pleaded by plaintiff in the conjunctive, specifically directing their attention to the necessity of finding the existence of each act, that each act constituted negligence, and that each and all concurred in bringing about and proximately caused plaintiff’s fall, and that, but for each of said things and all of them combined, her fall and injury would not have occurred, and if they did not so find to return a verdict for defendant. The bill of exceptions to the overruling of the exceptions affords no explanation otf the circumstances surrounding the presentation and giving of this charge; and, in view of its being given, the fact that the general charge was along the same lines could not have affected the result of the trial. As the record is subject to the construction that defendant permitted, if it did not induce, the court to adopt its theory that whether or not all things relied upon concurred should be explicitly stated to the jury, we conclude that assignments Nos. 8, 9, 10, 11, and 13 do not show any error requiring a reversal of the judgment.

The twelfth assignment is overruled, for the reasons given in discussing assignments 8, 9, 10, 11, and 13, and also because we think the evidence justified the submission of the issue regarding the insufficiency of the light.

Complaint is made of certain statements made by counsel for plaintiff in the opening and closing arguments, all of which related to the special charge above referred to, given at defendant’s request. These statements were apparently made for the purpose of impressing the jury with the idea that the general charge was to the same effect as the special charge, and that it would be a safer guide to them than the special charge. Upon objection being made, the statements made in the opening argument were withdrawn. Those made in the closing argument were not withdrawn, but the court instructed the jury that defendant had a right to have its language presented to them embodying the law, and if the court did not think it embodied the law, he would not submit it; that the jury is bound by a special charge just the same as by the general charge. The bills of exception, as qualified, show that no request was made by defendant for further instructions to the jury. The argument was improper, but we do not think it was so prejudicial that it would require or justify the reversal of the judgment. It could only be prejudicial to the extent that it might cause the jury not to consider the special charge, and that was a matter which could be corrected by instructions from the court. The court undertook to correct, it, and, no further instructions having been asked, we may assume that defendant was satisfied that the instruction given placed the matter in a proper light before the jury, and removed the injurious effects of the argument as fully as could be done. Assignments Nos. 14 and 15 are overruled, as is also the sixteenth, which relates to a similar matter.

By assignment No. 17 complaint is made of the charge on the measure of damages. The proposition submitted is to the effect that the charge is too broad because it fails to provide that no recovery can be had for such disabilities, etc., as were due to plaintiff’s own negligence subsequent to the injury. This specific defect was not pointed out in the exceptions filed in the trial court. In fact the exception relating to this matter was couched in such general language that it did not aid the court in any way. If the court can be charged with error on such general objections, the law requiring exceptions to the charge in advance was enacted in vain. Besides, in another paragraph the jury was informed that they could not allow plaintiff damages for any conditions that were brought about by her own negligence subsequent to the accident. The assignment is overruled.

By the eighteenth assignment complaint is made of the refusal of the following special charge:

“You are further instructed, gentlemen, that if you find and believe from the facts that after plaintiff alighted from the train and her journey was ended she remained in the waiting room for the hotel to be opened, or for any other purpose of her own, and after all business with the railroad connected with her journey had been entirely finished and attended to, then and after such time the defendant owed no duty to keep the station premises lighted for her benefit, and no duty to exercise ordinary care to keep the premises in safe condition for her; and, should you so find the facts to he, your verdict must be for the defendant.”

The evidence shows that plaintiff remained in the waiting room a short time; one witness fixing the time at from 5 to 10 minutes, while most of them estimated it at about 30 minutes. Under the common law, the relation of carrier and passenger existed until after the passenger had alighted and had reasonable time and opportunity to leave the- depot. We need not inquire whether the special charge correctly states the law, for by article 6591 (R. S. 1911) the Legislature has arbitrarily fixed not less than one hour as the reasonable time in which departing passengers may acquaint themselves with their surroundings and deliberate upon ways and means of further progress. M., K. & T. Ry. Co. v. Cook, 166 S. W. 453. Assignment No. 18 is overruled; also No. 19, which relates to the same matter.

It is contended that the verdict is excessive; and, considering the nature of the original injuries, it appears to be grossly excessive, but if plaintiff’s condition at the time of the trial can be attributed to such injuries, it cannot be said that the verdict is too large. She testified to great suffering and serious injuries, including paralysis of the leg, arm, and side, serious injury to the left eye, rendering it practically useless. Dr. Garrett testified that it was certain plaintiff would never regain her former health, and at what point the invasion of her nervous system would stop could not be told; that it had been gradually getting worse; that she was a wreck of her former self and almost in a helpless condition, being unable to walk. While there was the usual conflict in the medical opinions, there is evidence from which the jury could find that all of these ill effects resulted from the fall, and that plaintiff was not negligent in the manner in which she took care of herself after sustaining the injuries. Whether our conclusions would be the same is immaterial, for it is the province of the jury to pass upon the credibility of the witnesses. Appellee was 39 years old, and was a trained nurse whose earning capacity was $25 a week, besides board. We conclude that it cannot be said that tbe verdict is excessive. Tbe judgment is affirmed.
      (S^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    McGRAW v. GALVESTON, H. & S. A. RY. CO.
    (No. 5581.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Appeal and Error <@=^1058— Harmless Error — Exclusion op Evidence.
    The exclusion of an expert witness’ testimony in a personal injury case, was harmless, where not only was the same witness permitted later to swear to the same facts, but another expert medical witness testified to practically the same facts.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dee. Dig. &wkey;1058.]
    2. Appeal and Error &wkey;>730 — Assignment op Error— Sufficiency — Instructions.
    An assignment of error, complaining that an instruction was “uncertain, confusing, and misleading, and was calculated to mislead the jury and was prejudicial to plaintiff,” was too general and uncertain to be considered by the appellate court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <&wkey; 730J
    3. Steam &wkey;>6 — Explosion of Locomotive-Evidence.
    In an action for injuries to plaintiff from being thrown to the floor of her house when a locomotive in defendant’s roundhouse exploded and hurled a great mass of débris against the house, evidence that the explosion was caused by excessive steam pressure did not demand a verdict for plaintiff, in the absence of proof that such excessive pressure was chargeable to defendant’s negligence.
    [Ed. Note. — Por other cases, see Steam, Cent. Dig. §§ 4r-ll; Dec. Dig. <§=»6.]
    4. Steam &wkey;>6 — Explosion of Locomotive— Cause — Excessive Steam Pressure — Sufficiency of Evidence.
    Evidence, in an action for injuries to plaintiff from being thrown to the floor of her home in consequence of the explosion of a locomotive in defendant’s roundhouse, held not to require a finding that the explosion was due to excessive steam pressure.
    [Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4r-ll; Dee. Dig. &wkey;>6.]
    6. Steam &wkey;?6 — Explosion of Locomotive— Proof.
    Where plaintiff alleged that the explosion was caused by excessive steam pressure created by defendant’s negligence, the burden was on her to prove such allegation by facts rather than by mere speculation.
    [Ed. Note. — Por other cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;6.]
    6. Steam <&wkey;6 — Explosion of Locomotive-Pleading and Proof.
    Where the petition alleged that the explosion was caused by excessive steam pressure, and it was not shown that nothing but steam pressure could have caused the explosion, plaintiff could not recover, except on proof that the explosion was caused as alleged.
    [Ed. Note. — Por other'cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. &wkey;6J
    7. Steam <&wkey;6 — Explosion of Locomotive-Cause — Presumption.
    Mere proof of the occurrence of such explosion could not authorize the presumption that the explosion occurred on account of excessive steam pressure.
    [Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4r-ll; Dec. Dig. <&wkey;6.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by E. H. McGraw against tbe Galveston, Harrisburg & San Antonio Railway Company. Prom judgment for defendant, plaintiff appeals.
    Affirmed.
    Fellbaum & Carter, of San Antonio, for appellant. Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden, and Ed W. Smith, all of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

Appellant sued appellee to recover damages alleged to have arisen from tbe negligence of appellee in connection with tbe explosion of a locomotive in its roundhouse in tbe city of San Antonio. It was alleged that on or about March 18, 1912, while appellant was in her home, about 250 feet from appellee’s roundhouse, a locomotive exploded, and great masses of débris were burled against tbe bouse, and plaintiff was thereby thrown to tbe floor and seriously and permanently injured. Numerous grounds of negligence were alleged, but tbe only one supported by any evidence and submitted to tbe jury was excessive steam pressure in the locomotive. Tbe verdict was for appellee. Tbe evidence was convicting as to tbe cause of tbe explosion, and there was testimony upon which tbe jury justifiably could find that tbe explosion did not arise from tbe negligence of appellee.

Tbe first assignment of error assails tbe action of tbe court in excluding tbe testimony of Dr. Allen in answer to a hypothetical question as to what caused a certain physical condition in which tbe doctor found appellant when he examined her, shortly after tbe explosion. Tbe answer excluded was: “In my opinion her fall against tbe table or some object on the floor.” However important tbe testimony may have been, appellant has no just grounds for complaint, if substantially tbe same testimony was admitted when given by tbe same or another witness. This we conclude was done. Dr. Allen testified:

“Severe shock and fright, together with a general shaking up from the force of the fall, could cause the condition this lady is suffering from. * * * In my opinion as an expert, a blow or fall against any hard object can cause a contusion. In my opinion, her nervous condition has been caused by the shock and injury and pain from the injury. * * * I am basing my opinion wholly on the assumption that she had this accident,, and that she had never had trouble before then.”

This testimony covered fully everything in tbe answer excluded by tbe court. Tbe physician attributed tbe injured condition to the fall, which appellant swore bad been caused by the fragments from the exploded locomotive striking her house, and that was all that could have been obtained from the excluded testimony. Repeated asseveration and reiteration could add no more potency to the evidence. It has been settled, in numerous decisions, beyond cavil or dispute, that there is no vital error in excluding evidence which has been given by the same witness during his examination. Not only is this rule well established, but the courts go further and hold that an appellant has no ground for complaint if the rejected testimony has been given by some other witness. This is common sense, for it would be unreasonable to reverse a judgment because a litigant had not been permitted to prove a fact over and over by the same witness, or when the rejected testimony has been given by another witness. The two rules have been reiterated so often by Texas courts that it is useless to cite authorities. They are settled beyond dispute. Not only did Dr. Allen swear to the same facts, whose rejection is complained of by appellant, but another expert medical witness, when substantially the same hypothetical question was asked him, unhesitatingly and emphatically replied: “I attribute them to her recent injury.” He also attributed appellant’s nervous condition to her fall as testified to by her. The hypothetical question was asked this witness at least three times, and he answered every time that her injured condition was the result of her fall after the explosion. What more could reasonably be demanded? The assignment of error is overruled. ,

The following special charge was requested by appellee and given by the court:

“You are instructed that before you can find that the boiler in question was caused to explode by reason of defendant’s negligence, you must find afiirmatively from a preponderance of the evidence what was the cause of such explosion, that same was caused to explode on account of some defect in the boiler or its appliances, or that same was caused to explode on account of some act or omission on the part of some agent or employé of defendant engaged in handling or operating the engine; and yon are further instructed in this connection that before you can find negligence with respect to any defect in the boiler, you must find what was the nature or character of such defect (if any), and that same was of such nature or character as that the defendant could, and would in the exercise of ordinary care on its part, have discovered and remedied such defect (if any) before the alleged explosion occurred. And, in this connection, you are further instructed that before you can find negligence on the part of the defendant with respect to any act or omission of any agent or employé of defendant engaged in handling or operating the engine, you must find that there was some act or omission on the part of some agent or employé of defendant with respect to the matter of handling or operating the engine, and that such act or- omission was the cause of the alleged explosion, and that a man of ordinary prudence in the circumstances would not have been guilty of such act or omission. Unless you find there was negligence in one or the other respect mentioned, under the above instructions, you must return a verdict for the defendant.”

That- charge is attacked by appellant on the ground that it “is uncertain, confusing, and misleading and was calculated to mislead the jury and was prejudicial to plaintiff,” and “because said charge was upon the weight of the evidence.” In the only proposition under the assignment of error the second objection is abandoned, and only the first objection is urged. The ground of objection is very general, and the clause of the motion for a new trial upon which it is based did not notify the trial judge wherein the charge was “uncertain, confusing and misleading and was calculated to mislead the jury and was prejudicial to plaintiff.” It is only after the case reaches this court that a proposition is appended to the assignment of error in which it is stated that the charge of the court only submitted one issue of negligence, and that the special charge led the “jury to believe that it was necessary for them to find other grounds of negligence in addition to excessive steam pressure.” The object in requiring objections to be made to a charge before it is read to the jury is to give an opportunity to the trial judge to make any corrections in the charge suggested by the objections, and the end to be attained in making a motion for a new trial is to extend to the judge yet another opportunity to remedy any errors in the proceedings or in the charge. The object of the law in requiring objections to the charge to be presented to the court before it is read to the jury would be a “snare and a delusion” if vague and indefinite and general objections pointing out no error would suffice. The practice as to charges would, in no substantial way, be different from what it was before the statute was amended, and charges could he attacked upon any grounds occurring to shrewd counsel after the trial, and after all chance for the trial judge to correct an error is irretrievably lost.

Such assignments of error as the one under consideration have been condemned by this court and consideration of them denied in a number of instances. In the case of Railway v. Boothe, 126 S. W. 700, the assignment was that the charge was “misleading and confusing and in many portions of the charge it is impossible to decipher the meaning,” and Judge James, for this court, held: “This complaint points to nothing definite, and is not to be considered.” Again, in the case of Railway v. Averill, 136 S. W. 98, a similar assignment of error was not entertained by this court on account of its uncertainty. To the same effect are Railway v. Templeton, 175 S. W. 504, and Railway v. Watts, 182 S. W. 412, not yet published, both of this court.

The third assignment of error is overruled. It is asserted therein that the “uncontroverted testimony” showed that the explosion “was caused by excessive steam pressure,” and if that assertion was supported by the record, still it would not be sufficient to justify a verdict unless it appeared that such excessive steam pressure was chargeable to the negligence of appellee. This was not done, but, on the other hand, the evidence showed that the engine had just come from the shops, where it had been thoroughly repaired, tested, and inspected, and that so far as human skill and intelligence could determine, it was in a perfect condition, and if there was excessive steam pressure, the evidence failed to disclose how it arose. There was no evidence tending to show that excessive steam pressure caused the explosion, unless it is to be inferred from the explosion itself, except the opinion of F. A. Carver, who gave it as his opinion that excessive steam pressure caused the explosion. On cross-examination he testified that he had never seen the engine and did not know how much steam was on at the time. In opposition to that opinion, a witness testified to the excellent condition in which the engine was at the time; that excessive steam would cause leaks at every joint,'rivet, and bolt; that he had been on the engine, examining it, about 10 minutes before the explosion; and that at that time there were no leaks; and he thought the steam gauge showed between 180 and 190 pounds. He testified that it would have taken 20 or 25 minutes to have accumulated 25 or 30 pounds additional steam to the 180 or 190 pounds. The danger point was placed by Carver at from 600 to 800 pounds. The witness J. E. McLean was an expert master mechanic and if his testimony was to be credited, the jury would naturally reject the opinion of a man which was mere speculation and utterly baseless. The master mechanic also stated:

“I doubt whether an accident such as that was could have been produced by excessive steam pressure.”

Another witness testified to having been on the engine a short time before the explosion, and the steam gauge showed 190 pounds. Another witness testified that he was on the engine just a few minutes before the explosion, and there were no signs whatever of excessive steam. There was other testimony tending to support the evidence mentioned, and instead of the “uncontroverted testimony” showing that the explosion was caused by excessive steam pressure, a preponderance of the evidence tended to show that it did not arise from that cause.

There can be no doubt that the explosion, as stated by appellant, “was an unusual occurrence and was terrific,” but the testimony utterly fails to disclose the titanic cause of the destructive explosion. As said by the master mechanic:

“Any man can speculate on it, but to be in a position where you can say what caused it is entirely different.”

Appellant alleged that it was caused by excessive steam pressure, which was created by the negligence of appellee, and it devolved upon her to prove it by facts, and not by vague imagination and wild speculation.

It may be that if it had been alleged that the locomotive was -under the management and control of appellee and an unusual explosion occurred, in the absence of an explanation, the reasonable conclusion would be that the explosion arose from a want of care, but in this instance appellant’s case must rest on proof that the explosion was caused by excessive steam pressure, as she alleged in her petition. If it had been shown that nothing but steam pressure could cause such an explosion, the case would have been different, but that was not done. Under a general allegation of negligence, the facts attending the explosion might be such as to lead reasonably to the belief that without negligence the accident would not have occurred". But the negligence was alleged to have consisted in a certain act or condition brought about by the negligence of appellee, and it must be proved. That the explosion occurred on account of excessive steam pressure cannot be presumed from the fact of the explosion alone. McCray v. Railway, 89 Tex. 168, 34 S. W. 95; Broadway v. Gas Co., 24 Tex. Civ. App. 603, 60 S. W. 270; Talley v. Beever, 33 Tex. Civ. App. 675, 78 S. W. 23.

The evidence left the cause of the explosion shrouded in mystery, the experts stating that they did not know what caused the-accident. In the very nature of things no man could truthfully say that he knew the cause of the explosion. It might have been caused by excessive steam pressure, but it might also have been brought about by other causes.

The judgment is affirmed.
      ©=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W. — 27


author: CARD, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. PEREZ.

    (No. 5574.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Steam &wkey;>6 — Boiler Explosion — Presumption op Negligence.
    Where, in an action for injuries to plaintiff, while walking along the street, from the explosion of a locomotive boiler in a roundhouse, it appeared that the locomotive was under the management of defendant and that such accidents do not happen in the ordinary course of things if those having the management use proper care, and no explanation of the accident was given by defendant, the presumption was that the explosion was due to defendant’s negligence, though there was no direct proof thereof.
    [Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;6.]
    2. Steam &wkey;>6 — Boiler Explosion^Plead-ING AND PROOF.
    Where the petition alleged that the explosion was due to the negligence of defendant’s employés, but did not specify any particular acts of negligence, it being stated that the particular acts were unknown to plaintiff and peculiarly within defendant’s knowledge, proof of general negligence was sufficient, and it was not essential that plaintiff prove any particular negligent acts.
    (Ed. Note. — For other eases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. &wkey;6.J
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Severo Perez, by next friend, against the Galveston, Harrisburg & San Antonio Railway Company. From Judgment for plaintiff, defendant appeals.
    Affirmed.
    Balter, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant. Harrison & Gray, J. R. Norton, and James Routledge, all of San Antonio, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   CARD, J.

Appellee sued appellant for personal injuries inflicted on him by reason of a boiler explosion, March 18, 1912, in one of appellant’s locomotives in its yard in the city of San Antonio. It was alleged that appel-lee, a schoolboy, was walking along the street on his way to school when the explosion occurred, and a piece of the boiler was propelled by force of the explosion through the air and struck the ground near him, throwing him down and injured him; that the explosion was due to appellant’s negligence The petition alleged that:

“The said locomotive at and prior to the time of said explosion was owned and operated by the said defendant, and was in charge and control of the agents and employes of said defendant. That the said explosion of same was caused solely and only by and through the carelessness and negligence of said defendant and its agents and employes, who without cause or justification caused and permitted said locomotive to explode, as above set forth, solely and only through their fault and negligence. That this plaintiff was not near the said explosion at the time of said accident, but was at least 500 feet away from the same, and that he is not able to state and define particularly what particular negligence caused said explosion of said locomotive. That said locomotive was in the control and management of the defendant at said time and was being operated by it and was not even visible to this plaintiff, who is a minor of tender years, prior to said explosion. That the reason and cause of said explosion and the particular acts of negligence which caused and produced it are peculiarly within the knowledge of the defendant, and are not within the knowledge of the plaintiff and therefore he cannot more fully allege the same.”

Almost this entire appeal is predicated upon the theory that the rule of law symbolized by the maxim res ipsa loquitur does not apply, and that there is no evidence showing any actionable negligence on the part of the railway company, its agents and employes; that it simply shows that the locomotive and boiler in question was destroyed, and does not show what was the cause of its destruction, whether it exploded or was blown up; and that the evidence does not show, nor tend to show, that any defect in the boiler was the cause of the explosion. The defendant admitted that the boiler exploded or was blown up, but denied the other material allegations. The piece of the boiler, which was hurled through the air about 1,000 feet away to where apipellee was injured, weighed somewhere near 15,000 pounds, and its force was so great that it broke the window lights in the houses near where it fell. There is some testimony that the bolts were broken, and otherwise the boiler was in an improper condition to withstand excessive steam pressure. And there was evidence to the effect that there was excessive steam pressure, that the engine would stand 350 pounds of steam before it would explode, and that a safe working pressure would he about 225 pounds.

This engine was shown to have been on the premises of appellant in its yards and under its control. It exploded, and a large piece of the boiler, hurled with terrific force, caused the injury to appellee, who was passing along a street some distance away.

“Ordinarily there must be reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by defendant, that the accident arose from want of care.” G., C. & S. F. Ry. Co. v. Wood, 63 S. W. 165. The “circumstances attending the injury may. be sufficient to establish the fact of negligence without any direct proof thereof.” McCray v. G., H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95. See, also, Washington v. Railway Co., 90 Tex. 314, 38 S. W. 764.

In the case of McGraw v. G., H. & S. A. Ry. Co., 182 S. W. 417, this day decided by us, particular acts ofi negligence were set forth, and, having predicated the case upon such particular acts of negligence, it devolved upon the plaintiff to prove same; but in this case it was simply alleged generally that there was an explosion which caused the injury, and that the company was negligent, the particular acts of negligence being unknown to plaintiff, since they were peculiarly within the knowledge of the appellant And the explosion of a steam boiler is such an unusual occurrence that it speaks for itself and is prima facie evidence of negligence. Though the mere fact that an accident has happened may not be evidence of negligence, the character of the accident and the circumstances attending it may be such as to leave reason to believe that without negligence it would not have occurred. For instance, negligence may be inferred from the unexplained derailment of a train. Railway Co. v. Richards, 20 Tex. Civ. App. 203, 49 S. W. 687; Railway Co. v. Suggs, 62 Tex. 323; Shoemaker v. Railway Co., 29 Tex. Civ. App. 578, 69 S. W. 990; Railway Co. v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1037; G., H. & S. A. Ry. Co. v. Senn, 125 S. W. 322. Negligence in the operation may be inferred from the mere fact of a boiler explosion whereby injury is inflicted. Young v. Bransford, 12 Lea (Tenn.) 232.

The fact that the boiler exploded, coupled with the further fact that such is qn unusual occurrence, is of itself sufficient to warrant the conclusion or inference that some hind of negligence caused it to do so, and, since it was under the control and operation of the railway company, is sufficient, in the absence of explanation, to sustain a finding that the explosion was the result of appellant’s negligence. If the doctrine of res ipsa loquitur does not apply to a case of this kind, then it would be difficult to find a case to which it does apply. Appellee was not an employs of appellant, hut was a distant passer-by at the time he was injured. Ill. Cent. Ry. Co. v. Phillips, 55 Ill. 194; Id., 49 Ill. 234.

It was in evidence that the boiler was scattered in a thousand pieces for a distance of as much as a thousand feet away; that in a boiler of this kind there are 2,500 to 3,000 staybolts; that out of 10 or 12 found 7 or 8 showed the existence of old fractures in the pame existing prior to the explosion, or about 60 per cent, of defective bolts.

Prom what we have said it follows that appellant’s assignments of error must be overruled, and the judgment, which is for $5,000, be affirmed. It is so ordered.
      <S=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    CANODE v. SEWELL et al.
    (No. 878.)

    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1915.)
    1. Evidence &wkey;>597 — Sufficiency.
    To support a verdict there must be more than a scintilla of evidence; there must be evidence sufficient to warrant a reasonable belief of the existence of the fact sought to be inferred.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. &wkey;>597.]
    2. Negligence <&wkey;121 —“Res Ipsa Loqui-tur.”
    The expression “res ipsa loquitur” is a shorthand method of showing that the circumstances attendant upon an occurrence are of such a character as to speak for themselves in inferring the negligence and the cause of the disaster.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. <§s=>121.
    For other definitions, see Words and Phrases, First and Second Series, Res Ipsa Loquitur.]
    3. Pleading &wkey;>176 — Reply as Denial— Statute.
    Under Rev. St. art. 1829, as amended by Acts 33d Leg. e. 127, providing that if any special matter of defense shall be pleaded by the defendant the plaintiff shall be required to answer to each paragraph, either admitting or denying, or denying that he has any knowledge or information sufficient to form a belief, and that any fact so pleaded by defendant that is not denied by plaintiff shall be taken as confessed, where plaintiffs, to defendant’s answer, replied that they had not sufficient information to form a belief, such a reply was tantamount to a denial to the extent of putting defendant upon proof of the fact alleged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 343, 345-353; Dec. Dig. <&wkey;>176.]
    4. Master and Servant <&wkey;278 — Injuries to Servant — Negligence of Master — Sufficiency of Evidence.
    In an action for death of a servant found with his skull crushed on the master’s descending elevator, which he had been repairing, evidence held insufficient to establish negligence of the master as the producing cause of the servant’s death.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by Carrie Sewell and others against H. P. Canode. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    See, also, 172 S. W. 142.
    Cooper & Merrill, of Houston, Lumpkin & Harrington, 'of Amarillo, and Capps, Cantey, Hanger & Short, of Ft. Worth, for appellant. L. C. Barrett, Jas. N. Browning, E. T. Miller, and J. Marvin Jones, all of Amarillo, for ap-pellees.

       Rehearing denied February 2, 1916,

   HENDRICKS, J.

The mother, and the wife and daughter of Alvin Sewell, deceased, sued H. P. Canode, alleging the death of said Sewell to have been produced by the -negligence of Canode, on account of a defective elevator, situated in the Amarillo Hotel, at Amarillo, Tex., owned and controlled by said defendant. Upon the trial of the case, after the introduction of plaintiffs’ testimony, the defendant refusing to introduce any testimony, the jury, upon the submission of special issues, by the trial court, found that the negligence of the defendant was the cause of Sewell’s death, upon which the judgment was rendered; and the sufficiency of the testimony to support this finding, in different phases, is the only assignment of appellant Canode on this appeal.

The testimony of Ong is, in effect, that he was sitting on a settee in the lobby of the Amarillo Hotel, situated on the ground floor of same, facing the hatchway, or shaft, of the elevator, when he heard something fall, “sounding like glass or tools”; and he says that “dust and stuff fell down all around (meaning, we assume, down the shaft of the elevator), and after that “it was not but a second until the elevator came in sight.” When the elevator came in sight, he saw one Inman standing inside the elevator, manipulating the lever, used for the purpose of starting and stopping the elevator, back and forth, evidently for the purpose of attempting to stop said elevator. When the elevator descended, and came in sight of Ong, Alvin Sewell was lying on his back upon the top of the cage of the elevator, with his head facing Ong, towards the east, and with his feet over a beam, which we presume was a part of the construction of the top of said elevator cage. The elevator went to the bottom and passed out of sight, the top of said elevator being a little below the lobby floor. Sewell was taken from his position on the top of the cage to the lobby floor, with part of Ms skull crushed, apparently dead, and living only a few moments thereafter.

Claude Gaylor, a former employé of Can-ode, in said hotel, and part of whose duties had been to operate the elevator, testified:

“The elevator was started by a lever working from left to right, and vice versa. The elevator sometimes, when started, would run smoothly, and sometimes it would stop without throwing the lever and start up of its own accord and jerlr a little. The elevator sometimes would stop without the current being thrown off and would start up without moving the lever. It behaved as I have described a couple of times, or such matter, in the half of the day that I ran the same, on the Tuesday or Wednesday of the same week prior to the injury complained of. A few weeks prior to the injury, the elevator cage fell from somewhere near the top of the building.”

In defendant’s answer, in three different paragraphs of the same, there are allegations, one of them in substance that Sewell, prior to the time of his death, had been at work upon the bells of the elevator, placing in same storage batteries for the purpose of operating the floor indicators and the bells connected therewith.

The next averment is, in substance, that the defendant shows to the court that the said Sewell, “just prior” to the time of Ms injury, which resulted in his death, was working upon the bells of said elevator, situated in said hotel; and the third, in substance, is that Sewell and Inman at and pri- or to the time the deceased received the injuries, wMch resulted in his death, had been placing storage batteries for the use of the elevator in connection with its bells and indicator, and that at said time Sewell and In-man were the only persons in and about said elevator.

As to the first allegation, plaintiffs, in a supplemental petition, said they were not informed and had not sufficient information for the purpose of answering the same. The second averment, as to what Sewell was doing just prior to the accident, were specifically denied by plaintiff. The last averment, with reference to the situation and performance of work by Inman and Sewell, was not denied by said plaintiffs.

The' appellee would have us, under this condition of the pleadings, to construe the defendant’s pleadings, as an admission upon his part of the situation and character of work indulged in by Sewell at or just prior to the time of his injury; and argue that if Sewell was working upon the elevator, in the line of his employment at the time, that fact, in connection with Ong’s testimony, and the established fact of the defects of the elevator, constitute sufficient proof of actionable negligence.

If we concede to the extent that appellant’s defensive pleadings upon their face, especially the last paragraph mentioned, situates the deceased as placing storage batteries for the use of the elevator, such pleadings would tend to place him in the elevator, “at and prior to. the time” he received his injuries. The testimony of Ong, with the averments insisted upon by appellees, in their brief, as to the work in which the deceased was engaged, placed the batteries, in reality, inside said elevator.

There was a noise of falling glass, or tools, and dust was first seen falling down the elevator shaft, and, within some inappreciable length of time, the elevator hove in sight with Inman desperately attempting to stop it, and Sewell practically dead on top of the cage of the same. We can, of course, infer that the elevator was defective, but the questions remain: What caused the noise as of falling glass, or tools, and the dust and “stuff” that fell down the shaft of the elevator immediately preceding the descent of the same? Or whether Sewell fell through some floor opening into the hatchway, with his tools, and upon the top of the elevator, producing the noise and the débris mentioned, and then Inman started the elevator? As to these questions, we are wholly left to surmise and conjecture. There must be more than a scintilla of evidence; there must be “evidence sufficient to warrant a reasonable belief of the existence of the fact which is sought to be inferred.” Washington v. Railway Co., 90 Tex. 321, 38 S. W. 764. In that case cited by appellees, the negro was under some derailed cars, which, it could be inferred upon the principle of res ipsa loquitur, had been negligently derailed, and the appellant, when last seen, was walking in the direction of the place of the accident; it could be inferred that the cars, negligently derailed, fell upon and killed him.

“Adjudicated cases on questions of evidence are valuable as precedents only when based on the same or not dissimilar facts, and such cases are rarely found.” Railway Co. v. Boone, 105 Tex. 194, 146 S. W. 533.

Justice Fly properly said, in the same case (131 S. W. 619), that cases of this character “are decided upon their own proper facts, and not upon those of another and different case,” and we look to other cases only “to assist us in the proper -understanding of the facts and the probative force that should be accorded them.”

In the Boone Case, supra, insisted upon by appellees as applicable to this record, when you read Justice Fly’s opiMon, upon which the writ of error was granted (which more fully sets out the facts and derivable inferences than Justice Dibrell’s opinion) in connection with the opinion of the Supreme Court, there is exhibited a train of facts, and circumstantial inferences, though tenuous, which justified the verdict that the engineer, without warning, in the night, negligently shoved a “cut” of cars onto the “cut” upon which Boone was working moving down the track, and which knocked him off the particular car where he was last seen in the line of his duty for the purpose of setting the brakes.

In the case of Thompson v. Johnson Bros., 86 Wis. 676, 67 N. W. 298, the boy got upon a freight elevator and was jerked into an unguarded drum, which rolled and unrolled a cable according to whether the elevator was ascending, or descending; it was certain, of course, that the elevator killed him, and quite inferable that the cable jerked him onto, or into, the unguarded drum. The elevator should really have been started by “check lines,” instead of by the cable, and the jury found- that the boy, by mistake, when he stepped upon and started the elevator, must have caught hold of the cable instead of the “check lines,” and that his youth and inexperience excused his act.

Appellees say that the principle, res ipsa loquitur applies. This doctrine, appropriate when applicable, is a shorthand method of saying that the circumstances attendant upon an occurrence are of such a character as to speak for themselves in inferring the negligence and the cause of the disaster. If from this record we knew, or there was some pertinent fact to induce a reasonable belief, that the starting of the elevator killed Sewell, or that the elevator started when he was working on top of the same, or that this noise, which Ong heard, producing the dust that fell down the hatchway, was in some manner caused by Sewell’s body being jerked over when the elevator started, or was jerked against some obstruction, initially produced by the starting of the elevator, a different cause would be presented. To have Sewell placing the storage batteries in the elevator (which is the defendant’s pleading reproduced in appellees’ brief, as an admission of Sewell’s situation) when the testimony places Sewell in a dying condition upon the top of the elevator cage, without some pertinent fact explaining such a thing, does not aid us.

If we consider the defendant’s sixth paragraph of his pleading, as to the situation of Sewell and Inman, in placing the storage batteries for the use of the elevator upon the same, when the first pleading of defendant and plaintiffs’ evidence place the batteries inside the elevator, make it equally inexplicable and hard to give the same the effect desired. If we say that this last pleading is not clear and that the pleader really meant that Sewell was placing batteries when he was killed, or some of same, outside of, or on top of, the elevator, this situation is contradicted by that'part of defendant’s pleading, reproduced in appellees’ brief, in situating Sewell as at “work upon the bells of the elevator, placing therein storage batteries for the purpose of operating” the indicators and bells; for in this last paragraph the pleader evidently means, though not grammatically stated, that Sewell was placing storage batteries within the cage of said elevator.

If we should begin to speculate and place the elevator at a floor opening, and Sewell as standing just outside and reaching in, placing the storage batteries therein, and say that the lever of the elevator was in some manner started, producing the descent, and that Sewell fell from said opening in some manner on top of the elevator, as it was descending, creating the noise, and the dust, the question would then remain: Who started the elevator, Inman or Sewell? The situation of the openings upstairs as to the lever within the cage of the elevator is not shown, nor that of the batteries, except that they were inside the elevator. We seriously doubt that • because Inman, when the elevator was descending, was making a desperate effort to stop its descent, in such a situation hypothetically reproduced, we could say that he started it.

We are unable to decide unless we bridge a hiatus by assumption, and say simply, because it is generally shown that deceased was an employé of the defendant, that he was on top of the elevator in the performance of his work when it started, and that by the negligence of Inman he was injured, or from some defect of the elevator. All the evidence assembled by appel-lee as to his duties, and what he had previously done, does not help us. As to the answer of defendant wherein he first alleged the situation of Sewell as having been engaged in placing storage batteries and as to which plaintiffs replied they had not sufficient information to form a belief, we construe article 1829 as amended by the Acts of the 83d Legislature, c. 127, to make such a reply as tantamount to a denial, to the extent of putting defendant upon proof of the fact alleged; this is the pleading which ap-pellees say in their brief the situation of the deceased is admitted. This, and the other pleadings, place him within the elevator by strong implication, if not expressly at the very time. Carefully considering the pleadings and if permitted to treat them as admissions, we are not helped. Gaylor did say that on one occasion the elevator dropped from the top to the bottom. We understand that to have been a different manifestation than at the particular time inquired about. The self-starting of the elevator, as we deduce it from Gaylor’s testimony, reproduced in the preliminary part of this opinion, was at a time when the elevator was ascending or descending, and after running smoothly would sometimes stop without throwing the lever and then start up of its own accord, and “jerk a little.” We do not understand from this testimony that the elevator had ever automatically started itself, when the current was off, from a dead rest.

Careful and repeated examination of this testimony, with the inferences (or, rather, the lack of inferences) derivable therefrom, has forced us to the conclusion that the evidence offered was not legally sufficient to establish negligence as producing the death of Sewell; that in order to do so we have to surmise, which is different from an exhibition of facts establishing a reasonable belief that negligence as an actuating cause has been proved. Deplorable as the occurrence is shown to have been, we feel compelled to remand the cause.

Reversed and remanded.
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