author: MOURSTJND, J.

text:
    TEXAS MEXICAN RY. CO. v. STATE.
    (No. 5369.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1915.)
    1. ■ Railroads @=^51 — Freight Transfer — Facilities.
    The middle of an international bridge, which was owned half by a railroad company of Texas and the other half by a Mexican company, is not such a place as is meant by the statutes requiring the erection of structures suitable for the protection of freight, and the railroad company cannot be compelled to build an inclosure to transfer freight at that point.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 116-118, 120; Dec. Dig. <®=»51.]
    2. Carriers <©=^18, 20 — Common Carriers— Duty to Exchange Freight.
    Where a Texas railroad company wrongfully refused to exchange business with a foreign company, it is subject to the penalties provided by Rev. St. 1911, art. 6615, and may be required to discharge its duties by mandamus or injunction.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24, 33-49, 133, 927; Dec. Dig. @=>1S, 20.]
    3. Receivers • <®=»35 — Appointment—Notice.
    The National Railways of Mexico having come into the control of a revolutionary faction, the defendant railroad company refused to accept freight and passengers therefrom and exchange its equipment with such company. The defendant railroad company was insolvent, and it lost considerable revenue from its refusal to make exchanges with the Mexican company. Neither creditors nor stockholders of the defendant railway company were complaining of its course, and it was extremely questionable whether those controlling the Mexican company could offer security for the return of equipment. Rev. St. 1911, art. 2128, relating to the appointment of' receivers in general, does not require notice of appointment. Held that, though notice was not required, it should be given except in case of emergency, and that there was no emergency warranting' the appointment without notice of a receiver on suit by the state for the forfeiture of the charter of the defendant railroad company.
    [Ed. Note. — Eor other cases, see Receiyers, Cent. Dig. §§ 54-00; Dec. Dig. <®=>35.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Suit by the State of Texas against the Texas Mexican Railway Company. From an order appointing a receiver without notice, defendant appeals.
    Reversed and remanded.
    Greer & Hamilton, of Daredo, and Hicks, Hicks & Teagarden and Houston, Boyle & Storey, all of San Antonio, for appellant. B. F. Looney, Atty. Gen., John A. Yalls, of Laredo, and Luther Nickels, Asst. Atty. Gen., for the State. •
   MOURSTJND, J.

This is a suit filed by the state of Texas, on August 11, 1914, through its Attorney General, joined by the district attorney of the Forty-Ninth district, against the Texas Mexican Railway Company, hereinafter referred to as “railway,” seeking a forfeiture of its charter, with prayer for mandamus or mandatory injunction to compel the railway to operate and open its tracks on and to half of the International Bridge at Laredo, Tex., between the United States and Mexico. We adopt appellant’s statement of the grounds upon which the forfeiture is sought, as follows:

“First. It is alleged that the railway owns tracks to the middle of the International Bridge at Laredo, Tex., and that part of the bridge up to the middle of the Rio Grande river on the Texas side; that these tracks and bridge are the only means of railway connection with the National Railways, a foreign railway company on the Mexican side, the tracks of which go to the middle of the International Bridge and connect as a continuation with the railway; that the railway refuses to accept freight at Laredo, Tex., to be carried across said bridge, and refuses to interchange cars and traffic destined to cross said bridge into and out of Mexico, although the National Railways have tendered freight and cars to it and are willing to interchange cars and freight: and that therefore it is not performing its duties to the public and is not operating its full line of road as provided by the laws and Constitution of Texas ; and that this refusal to so operate and interchange traffic has existed since April 26, 1914.
“Second. It is further claimed that the railway is insolvent, or in imminent danger of insolvency, and for this reason forfeiture is sought and a receiver prayed for under article 1201 et seq. of the Revised Statutes. In this connection it is alleged that the railway owes bonds and liens to the extent of $2,340,000, $960,000, which is past due, and that the railway has been and is unable to meet that part .past due, and that, in addition thereto, it owes accumulated interest on bonds to the extent of $1,-800,000 which it is now unable to meet, and that it has no prospect of meeting same unless it be compelled to operate said bridge and interchange facilities, its failure so to do causing, and having caused it to lose large sums of revenue. In addition thereto, it is alleged that the railway owes a further amount of $331,969.54, which it is unable to pay at this time, and will be unable to pay especially unless it shall be compelled to operate the bridge facilities and properties so as to derive revenues therefrom. It is alleged that, to offset its indebtedness, the assets of said railway of physical properties are not worth more than $1,910,541.33, and that debts due it aggregate $196,964.70, a large amount of which latter is not collectible. It is alleged that notwithstanding said insolvency, as alleged, the railway is able to operate its bridge and interchange facilities, and that, if it actually did so, such condition of insolvency would be remedied, and that such insolvent condition has been brought about by failure and refusal to operate its property.
“Third. As a further ground for forfeiture of its charter, it is claimed that the railway has violated section 6, art. 10, of the Constitution, forbidding the consolidation of foreign and domestic railway companies, and, further, that the National Railways, a foreign railway corporation, practically owns and maintains said railway in Texas, contrary to statute. As a basis of this claim, it is alleged that the National Railways, a foreign corporation, owns, controls, and operates the railway, and that there is a consolidation between the two. This is effected, it is averred, by reason of the fact that the National Railways owns $2,495,000 out of $2,500,000 of the capital stock of the railway, and owns and controls all of its bonds, to the amount of $2,340,000. It is alleged that, through the ownership and control of said stock and bonds, the National Railways places in charge of the railway’s properties persons selected by the foreign railway, and that the president of the foreign railway is also president of the railway, and has always been the same, and that all the agents and officers of the railway accept positions with it with the understanding that they will operate the railway with an eye alone to the foreign railway’s interests, irrespective of the railway’s interest and duties, and will continue so to do, and that especially are they so doing with respect to closing said bridge and transfer facilities, and that this closing and refusal to operate has been by the direct orders of said foreign corporation, and it is alleged that such failure to operate the bridge and facilities and properties is the cause of the insolvency or imminent insolvency of the railway. It is 'alleged that said National Railways, which owns the remainder of the bridge and connecting tracks with the railway, refuses to permit it to open the bridge and interchange freight.”

In addition, the petition, for the purpose of showing an emergency justifying the extraordinary relief prayed for, at length clearly and forcefully stated the facts showing the great amount of freight ordinarily transported into and out of Mexico by way of Laredo ; the great decrease therein owing to the fact that it has to be hauled across by means of wagons at considerable extra expense; the additional expense of shipping through one of the other three places where international bridges connect this state with Mexico; the injurious effects upon the revenues of the appellant; and the inconvenience and damage inflicted upon the traveling public, other carriers, and the business interests of citizens of this state and other states. It is alleged that the tracks of the International & Great Northern Railway Company and of the Rio Grande & Eagle Pass Railway Company connect with those of appellant railway at points about 600 feet north of the center of the bridge.

Certain affidavits are attached to the petition which show that those in physical control of the National Railways of Mexico, at least so far as they connect with Laredo, held such control and operated the same as appointees of Gen. Carranza, the head of one of the factions in Mexico; that such persons were willing to interchange cars and freight with appellant; but that the president of the National Railways, Mr. Brown, who is also the president of appellant, refused to permit appellant to interchange <?,ars and freight with those who have taken possession of National Railways.

The exhibits attached also disclose: That on July 30, 1914, a conference was neId between representatives of the International & Great Northern Railway Company and of the Constitutionalists in charge of the National Railways, at which such Constitutionalist representatives claimed to be' in control of a certain amount of mileage and to have sufficient equipment to operate, and that the bridge was absolutely in their hands and the Texas Mexican Railway Company had nothing to do with the interchange of traffic between the International & Great Northern Railway Company and the Constitutionalists’ railways. The representatives of the International & Great Northern Railway Company were willing to interchange traffic provided the Constitutionalists’ railways arranged with the Texas Mexican Railway Company for the movement of freight across the bridge, and made delivery and received all freight in the yards of the International & Great Northern Railway Company, but owing to unsettled conditions in Mexico were unwilling to have any interchange of equipment, and all freight would have to be transferred at the expense of shipper, and all charges paid before it would be turned over by either of said companies to the other. But, if the Texas Mexican Railway Company should recognize the National Lines of Mexico as being part of their system while in the hands of the Constitutionalists, the International & Great Northern Railway Company would permit interchange of equipment and lading.. It ■further appears that the Constitutionalist representatives called upon Mr. De Wolf, General Superintendent of Texas Mexican Railway Company, and demanded that he permit them to cross the bridge for the purpose of making interchange of traffic with the International & Great Northern Railway Company, and he declined to do so, stating that it would be necessary for them to have an order from the federal government at Mexico City before he could permit them to use the bridge, and that under his instructions from Mr. Brown he could not permit them to cross. One of the representatives of the Constitutionalists’ railways stated in his affidavit that, if any foreign railroad would agree to let its cars go into Mexico, his road was able and willing to secure the owners of the cars for their safe return. It does not appear that this offer was communicated to appellant.

The trial court, on ex parte hearing, without notice to the railway, appointed a receiver on August 10, 1914, who qualified on August 11, 1914. On August 12th, railway company gave notice of appeal, and the court fixed the amount of the supersedeas bond. Such bond was given, approved, and filed on August 13th. The record was filed in this court on August 29, 1914. No motion was made to advance the case, and when set for submission on December 5, 1914, both parties filed a motion requesting that the submission be postponed until the first submission day in February, 1914, which request was complied with by this court. The order appointing the receiver recites that the receiver is to operate all of the properties so as to perform the public duties owed by the defendant, and so as to preserve and protect the interests of the defendant and its creditors in its properties. It further recites that he has to operate all and every portion of such properties as a common carrier, including the operation of the main line from the terminus thereof on the Texas state line near Laredo to its other terminus, and receive, transport, deliver freight and passengers, and interchange freight and passenger traffic and loaded and empty cars with each and all of connecting carriers, including the National Railways of Mexico, at the junction of the lines of defendant with the line of said National Railways of Mexico at the Texas state line.

Appellant railway contends that the court erred in appointing a receiver without notice to it. The damage and inconvenience occasioned to the public and the business interests by the failure of appellant to interchange traffic with those in charge of the National Railways is relied upon by appellee as showing an emergency justifying the appointment being made without notice. We say this because it is apparent that for appellant to operate its line to the middle of the bridge would not provide an adequate remedy for the ills complained of, because it would be impracticable to unload and reload at the middle of the bridge. Nor can it be contended that the middle of the bridge is such a place as is meant in our statutes requiring the erection of suitable buildings or inclosures for the protection of freight. R. R. Com. v. C., R. I. & G. Ry. Co., 102 Tex. 397, 117 S. W. 794.

The contention, in so far as it relates to the emergency, resolves itself into the proposition that the state undertakes to compel a railroad company to interchange freight and passenger traffic, loaded and empty cars, with representatives of a faction carrying on a revolutionary war in Mexico, which faction is not shown to be legally entitled to the possession of National Railways, and is not recognized by the United States government, but wishes to interchange freight and passengers without tlie consent of the president of National Railways. This implies that appellant must interchange traffic with whoever is in physical control of National Railways, provided such parties give security for the return of equipment. These propositions are so far reaching that it occurs to us the trial court might well have given appellant an opportunity to be heard, especially as it is alleged that the conditions creating the emergency had existed for several months. The International & Great Northern Railway Company recognized the fact that conditions were so unsettled in Mexico as to make it inadvisable for it to permit its equipment to go into that country, unless appellant would recognize National Railways as a part of its system though in the hands of persons who had taken possession thereof under orders of Gen. Carranza. In other words, the International & Great Northern Railway representatives appeared to desire that appellant stand between them and any possible loss. What kind of security the Constitutionalists were willing to give is not disclosed, and we can imagine a railroad company being so situated that its equipment being returned, and promptly at that, is of more importance than to have security for the payment therefor if it is not returned. True, interchange of traffic had been going on at Brownsville and Eagle Pass, but the fact that other companies were willing to make such interchange does not prove that appellant can legally be required to do so. However, if it can be required to do so, and it has violated our statutes in failing to do so, it has subjected itself to the payment of the penalties provided by article CG15, and in addition it can be required by mandamus or mandatory injunction to discharge its duties. State of Texas v. Sugarland Ry. Co., 163 S. W. 1047. The attorneys representing the state urge that such remedies are not effective, that the appellant is dominated by National Railways, and means will be found to render ineffective such remedies if applied. Their argument in this connection appears to us to be rather far-fetched, and does not show such a likelihood of said remedies proving ineffective as to justify the appointment of a receiver without notice.

The emergency relied upon has a direct effect upon the finances of appellant which are alleged to already be in such condition as to render it insolvent or in imminent danger of insolvency, and it is urged that it is deliberately incurring further losses, and therefore the court was justified in appointing a receiver without notice. The suit is not brought by any creditor in danger of losing his debt because of insolvency or imminent danger of insolvency of appellant railway, but by the state for the purpose of forfeiting the charter, and article 1201 (R. S. 1911) is pleaded. While attorneys for the state rely upon that article as a warrant for forfeiting the charter, they do not rely upon the succeeding articles for authority to appoint a receiver without notice, but rely upon article 2] 28, which relates to receiverships in general. Article 1202 reads in part:

“And the court trying said cause, after the corporation has been shown to be insolvent, may, in its discretion, appoint a receiver.”

This provision authorizes the appointment of a receiver after the cause is tried. Article 1203, after providing that parties owning 25 per cent, of the stock of an insolvent corporation or creditors owning 25 per cent, of its indebtedness may sue for the dissolution of the corporation, and providing that leave shall be obtained from the judge before any petition shall he filed under articles 1202 or 1203, reads as follows:

“And it is further provided that any such corporation proceeded against shall have ten full days’ notice prior to the day set for hearing, on an application for the appointment of a receiver.”

Attorneys for the state urge that such provision relates back to article 1202, and means that, when a receiver is appointed by the court trying the cause, 10 days’ notice shall be given; that any other construction would destroy article 1204, which provides that the rights and remedies given by the chapter are cumulative. It is indeed difficult to determine the intention of the Legislature, but it does not seem possible that it would provide for 10 days’ notice to have been given before a receiver could be appointed upon judgment of forfeiture of charter. As a usual thing, the petition would contain a prayer for the appointment of a receiver, and notice for 10 days would be given by service of citation; but surely, if not prayed for in the petition, the Legislature did not intend that if a trial amendment was filed asking such relief the court would have to postpone for 10 full days the matter of appointing a receiver. It would be manifestly absurd to require such notice before a receiver could be appointed upon an adjudication upon the merits, and yet permit the appointment of a receiver by the judge in vacation without any notice. We do not think the Legislature intended such a radical departure from the long-established practice of the courts of our state. The intention must be that the 10 days should apply to appointments made by the judge, upon the petition being presented to him, and not to adjudication upon the merits. But if the contention of attorneys for the state is correct, and article 2128 is the only one to which we should look, then we say that, while said article does not provide for notice, our courts have uniformly held that notice should be given except in cases of emergency, and we do not think the insolvency of the corporation, or its imminent danger of insolvency, created such an emergency as justified the court in appointing the receiver without notice. This not being a suit by a creditor, or any one interested in the assets of the corporation, but by the state for the forfeiture of the charter, the financial condition of the corporation, or even the fact that its course of conduct was leading it into further financial losses, did not create such an emergency as justified the receivership being instituted without notice.

The allegations relating to a consolidation of appellant with National Railways add nothing in the way of showing such an emergency as to,justify the appointment of the receiver to be made without notice.

We are not unmindful of the gravity of the charges brought against appellant; but, as in all cases the remedy of receivership is to be cautiously applied, we conclude, for the reasons above given, that we should set aside the order appointing the receiver' and remand the cause in order that appellant may have an opportunity to be heard.

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

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source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. PROTHRO.
    (No. 1394.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1915.
    On Motion of Appellant for Rehearing, Feb. 25, 1915.)
    On Rehearing.
    Master and Servant <§=3279 — Injury to Brakeman — Negligence of Engineer — Sufficiency of Evidence.
    In an action for injuries to a brakeman, thrown from the train while attempting to board it, in which a verdict for plaintiff was based on the negligence of the engineer in starting the train when he knew, or should have known, that plaintiff was working on a hot box, evidence held to show that it was the engineer’s duty to start the train on signal from a brakeman or other employs, and not his duty to ascertain the position of plaintiff, and hence insufficient to sustain the verdict.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. <§=3279.]
    Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.
    Action by J. R. Prothro against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded for new trial, on rehearing.
    Appellee’s place as the rear brakeman on one of appellant’s freight trains was in the caboose. It became necessary to cool and repack a “hot box” on the car next to the locomotive. While the train was taking water at a tank at which it had been stopped, appel-lee went from the caboose to the car mentioned and began to work on the hot box. Before he had time to complete, the work the train started on its way. In attempting to get aboard one of the cars as the train moved on, appellee fell and had one of his feet so crushed by a wheel of one of the cars passing over it as to necessitate the amputation of the big toe thereof. In his petition appellee alleged that while he was engaged in the work mentioned—
    “the persons in charge,” quoting, “of the engine, without any warning and without any signal from the plaintiff authorizing and permitting them to do so, started the said train and continued to increase the rate of speed thereof, and that it being the plaintiff’s duty to get upon the said train, and especially upon the caboose thereof, where his duties were to be discharged, that the plaintiff intended to get upon the caboose of the said train, but the persons in charge of the engine had increased the speed of the engine to such an extent that when the first box car reached the plaintiff he felt that it was his duty to endeavor to get upon the said box car, fearing that by the time the.caboose reached him it would be going so fast it would be impossible for him to get upon it. And the plaintiff shows that, believing that he could catch the said box car and get upon the same, he caught the handhold upon the box car and endeavored to get upon the same, but that by reason of the speed of the train and by reason of the [act of the] engineer in suddenly and rapidly increasing the speed thereof the plaintiff’s foot was caused to slip, that the plaintiff was jerked and thrown from the said train by the speed and rough handling thereof, and fell with his foot under the train,” etc.
    The appeal is from a judgment in appellee’s favor for $3,000.
    The evidence is believed to be sufficient to support findings, and we find that appellee, without fault on his part, was injured as alleged, as the result of negligence on the part of appellant as charged in the petition.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). We do not agree that:

“There was not,” quoting from appellant’s brief, “sufficient evidence that the engineer knew of plaintiff’s danger, or could have known of same by ordinary care, and no evidence that the effect of increasing the speed of the train at that time would be negligence on the part of the engineer.”

It appeared that the train had stopped at a water tank to take water for the locomotive. It remained at the tank about five minutes. During that time appellee engaged in working on the hot box. He had brought with him from the caboose two iron rods and a three-gallon bucket containing grease and waste, to use in doing the work. While he was engaged at the work, the engineer, appel-lee testified, “came around and saw what he was doing.” The engineer’s position, when operating the engine, was on the right-hand side thereof. Appellee, while working on the hot box, was on the same side of the engine, and only 60 or 80 feet from it. From the facts recited we think the jury might have found that the engineer knew, or as a reasonably prudent person should have known, when he started the train, that appellee, as he, without contradiction, testified was true, had not completed, but was still engaged at, the work on the hot box.

We think it should be said from the record that the engineer knew that appellee’s place on the train was in the caboose, and that it would be necessary for him, carrying the bucket and iron rods, to board the train, and that he (the engineer) knew there was a bridge between the car appellee was working on and the caboose, which would prevent ap-pellee from going hack toward the caboose, and knew that there were a number of coal and flat cars loaded with scrap iron and lumber between the car appellee was working on and the caboose, which he would not be able, because of their character and the way they were loaded, to get upon as they passed, and therefore knew that it would be necessary for appellee to wait where he was and endeavor to get aboard one of the box ears or the caboose following them, after it crossed over the bridge. The jury, we think, might have found that the engineer, knowing those facts, as a reasonably prudent man, should have contemplated that appellee might attempt to get aboard the train as he did, and, contemplating that he might make such an attempt, should not have run the train as fast as he did (at the rate of 12 or 14 miles ah hour), and snould not, in operating it, have caused it to give a sudden jerk, as appellee testified it did when he grasped the grabiron to get aboard of it.

Whether it should be said, with reference to the act of Congress of 1908, known as the “Employers’ Liability Act” (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), which was applicable to the case, that appellee was not entitled to recover, because it appeared from the evidence, as appellant insists it did, that the risk appellee incurred in attempting to get on the train as he did was one he assumed, need not be determined, in view of the fact that appellant in its pleadings did not claim that he had assumed the risk. “Assumption of risk,” to be available as a defense, must be pleaded. Price v. Oil Co., 41 Tex. Civ. App. 47, 90 S. W. 717; Railway Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 206; Railway Co. v. Harris, 95 Tex. 316, 67 S. W. 315.

Appellant claimed that in June, 1913, it paid to appellee $300, which he accepted as a full settlement of his claim against it for damages for the injury he suffered. In support of its contention appellant offered, and the court admitted as evidence, a written instrument, signed by appellee, in which it was recited that in consideration of $300 paid to him by appellant he had released all claim he had against it for damages for the injury he had sustained. Appellee admitted that appellant had paid him the $300 as stated in the writing, but contended that as a further consideration for the release it had agreed that he might continue in its service as a brakeman “just as if he had never been injured.” He further contended that appellant thereaft-erwards refused to comply with its agreement to continue him in its service as a brakeman, and that he thereupon returned to appellant the $300 it had paid to him, notifying it that he did so because of its refusal to comply with that part of its agreement, and that appellant accepted and ever afterwards retained said $300.

In making the settlement in question appellant was represented by one Saling, a clerk in its claim department at Dallas. Appellee testified that he told Saling that appellant’s trainmaster at Marshall had offered, as a settlement of his claim, to have the company pay him half time and let him go back to work, but that he declined the offer because he thought he should have full time. Saling replied that “he did not know what they would do, whether they would give him any better than half time or not,” but that he would take up the matter with appellant’s legal department. Saling, appellee said, “seemed very busy that morning,” and wanted appellee to come back in the afternoon. Appellee then told Saling he was in a hurry to get back to Marshall and go to work. In the afternoon Saling told him, appellee testified, “they would not agree to give him straight time, but, if he was in a hurry to get back to work, he [Saling] would make it a lump sum of. $300, and he could come on back to work.” Appellee then “spoke about having any trouble in getting back to work,” and Saling replied “that they would attend to that.” Appellee testified that Saling then paid him the $300 and gave him a letter, addressed either to Trainmaster Brown or his superior, and that when he got back to Marshall he delivered the letter to Brown and offered to go back to work. Appellee further testified that Brown was angry because he had made the settlement with appellant’s Dallas office, instead of with him, and refused to put him to work, and that he (appellee) thereupon returned the $300 to appellant, with a letter advising it he did so because of such 'refusal, and then instituted the suit resulting in the judgment from which this appeal is prosecuted. Appellant did not deny that it had received the $300 returned to it by appellee, and did not pretend in either its pleading or evidence that after receiving same it regarded the money otherwise than its own. Saling testified that, in the negotiations between him and appellee resulting in the settlement, the latter said nothing about going back to work, but he further testified:

“I thought he was going back to work. I assumed that he was. We don’t refuse to employ a man because he gets hurt. * * * I thought Mr. Prothro was expecting to go to work. The reason I know he did not mention it to me is because, when they mention it, I tell them right off I have nothing to do with their going hack to work.”

We think the testimony referred to was sufficient to support a finding that it was understood and agreed between Saling and ap-pellee that the latter was to be paid $300 and to be retained by appellant in its service as a brakeman as if he had not been injured, as the consideration for a release by him of his claim for damages against it, and a finding that appellant had refused to comply with the under taking, so far as it was to continue appellee in its service as a brakeman.

Appellant, however, insists that the testimony relied upon to show that Saling agreed that appellee should be retained in its service was inadmissible, because its effect was to vary the terms of the settlement as evidenced by the writing, and further insists that if Saling so agreed it did not create an obligation on its part to retain appellee as a brakeman, because it did not appear from the testimony that appellee had bound himself to work for it — in other words, that the agreement, for lack of mutuality, was not binding on it.

As to the first of the two contentions, it is clear that the testimony referred to was admissible under the allegations in appellee’s supplemental petition, charging that he was induced to execute the release as the result of “fraudulent statements and representations made to him to the effect that he would be given said job or employment, and would be permitted to enjoy the privilege of working for the said defendant railway company just as if no injury had been received by him,” etc. And, in the absence of such allegations on the part of appellee, appellant should not be heard, on the ground stated, to complain here that the testimony was inadmissible, because it is not made to appear that he objected to its admission when it was offered in the court below.

As to the other of said contentions, it should be noted that appellee’s suit was not to enforce a performance by appellant of its undertaking under the agreement, but was to recover against it as he would have been entitled to in the absence of any agreement for a settlement of his claim. In other words, appellee, having returned to appellant the money it had paid him, was in the attitude by his suit of treating the agreement as rescinded, and therefore no longer binding on either him or appellant. In accepting and retaining the money, without in any way questioning appellee’s right to so rescind the contract, we think appellant should be held to have acquiesced in appellee’s claim of a right to rescind it. As stated before, there is nothing in the record showing that appellant did not claim the money as its own after same was returned to it by appellee. On the contrary, by retaining it as it did, we think ap-XDeilant was in the attitude of claiming the money as its own, and that it should not have been heard to say, so long as it remained in that attitude, that appellee was not entitled to treat the agreement as no longer in force.

It is insisted that the verdict was for a sum in excess of the damages shown. As the sum found does not of itself indicate, and as there is nothing in the record that does indi-1 cate, that the jury, in determining the sum, were influenced by anything except their sense of duty, the contention is overruled.

The judgment is affirmed.

On Motion of Appellant for Rehearing.

The judgment was based on findings involved in the verdict of the jury that the engineer knew, or in the exercise of ordinary care could have known, that appellee had not boarded the train at the time it started on its way, and therefore, under the circumstances shown by the testimony, was guilty of negligence in the manner in which he operated the engine. We thought the findings were not without the support of testimony in the record, and in disposing of the appeal found that appellee was injured as the result of negligence on the part of appellant. It is insisted in the motion that a duty to ascertain whether appellee had boarded the train or not, before starting same, did not in the facts of the case rest upon the engineer; and it is further insisted that there was no testimony tending to show that the engineer knew appellee had not boarded it. We are of opinion the contention should be sustained. There was no testimony showing that the engineer knew that appellee had not gotten aboard the train at the time he started the engine. The brakeman, Maloney, testified that he signaled the engineer to start the train. It is believed the engineer had a right to act on the signal so given to him, without stopping to ascertain whether appellee had boarded, or was in a position where he could safely board, the train or not, and that, in the absence of proof showing that he knew the truth to be to the contrary, a finding that he was negligent as charged was not warranted. On the case made by the testimony it seems that the negligence, if any there was, for which appellant was liable, was the act of the brakeman who gave the signal to the engineer, or of the one of appellant’s employes responsible for its being given as it was.

It is insisted that the statement in the opinion that the engineer “knew there were a number of coal and flat cars loaded with scrap iron and lumber between the car appel-lee was working on and the caboose, which he would not be able, because of their character and the way they were loaded, to get upon as they passed,” etc., is without support in the testimony. As we find on a further examination of the record that the statement is without such support, it is withdrawn.

The motion will be granted, the judgment heretofore rendered by this court will be set aside, and the judgment of the court below will be reversed, and the cause will be remanded for a new trial.
      <§=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes