the information upon which Bucklew's charge | death of one walking along the track, after their was based. Other evidence was introduced discovery of the peril, it was immaterial that tending in some respects to corroborate the such person was guilty of contributory neglitestimony of Richards. In view of such evi- gence in entering upon the track. dence on the part of plaintiffs, the assign ment now under discussion must be overruled. [5] Error has been assigned to the following instruction given by the court to the jury: Cent. Dig. §§ 1324, 1325; Dec. Dig. 390.] 3. RAILROADS 400-INJURY TO PERSON ON In an action against a railroad for the death of plaintiffs' minor son, struck by locomotive "If you believe from the evidence that defend- while walking on defendant's tracks, question ant, after the destruction of said house above whether defendant negligently operated its endescribed, with knowledge thereof, denied its lia-gine at a high rate of speed held for the jury unbility to plaintiffs and refused to pay plaintiffs der the evidence. the amount of said insurance, you will find in favor of plaintiffs, unless you further believe that said house was destroyed by the act or procurement of plaintiff Mrs. M. A. Richards, in which event you will find for the defendant." The criticism of this instruction is that it ignores other issues under which the jury would be justified in finding for the defendant. The instruction clearly ignores and excludes any defense to the suit by reason of the contract of settlement. In effect, it is a peremptory instruction that the contract of settlement was invalid and of no binding force or effect. Appellee insists that the error, if any, in the instruction, was harmless, in view of the fact that in other portions of the charge the jury were instructed, in effect, that the contract of settlement would preclude a recovery unless the plea of the plaintiffs that the same was executed under duress was sustained, and that the burden was upon plaintiffs to sustain that plea. It is impossible to determine which of these conflicting instructions were followed by the jury, and in the absence of any showing that the error in the instruction quoted did not influence the jury to the defendant's prejudice, the assignment of error now under discussion must be sustained. Burgher v. Floore (Sup.) 174 S. W. 819; Railway Co. v. Sage, 98 Tex. 438, 84 S. W. 814. Reversed and remanded. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. 400.1 Appeal from District Court, Wise County; F. O. McKinsey, Judge. Action by W. F. Loftis and wife against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiffs, and de fendant appeals. Affirmed. Lassiter, Harrison & Rowland, of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, and H. E. Lobdell, of Bridgeport, for appellees. On a CONNER, C. J. This suit was instituted by W. F. Loftis and May Loftis to recover damages for the death of their minor son, Denny Loftis, who it was alleged had been run over and killed by one of appellant's locomotive engines in August, 1912. former appeal judgment in appellees' favor was reversed, on the ground that the evidence was insufficient to warrant the submission of the issues of negligence in operating the engine at an excessive speed and without keeping a proper lookout. See C., R. I. & G. Ry. Co. v. Loftis, 168 S. W. 403. On the last trial the issue of a failure on the part of the operatives of the engine to keep a proper lookout was not submitted; the case being submitted on the issues of contributory negligence on the part of deceased, and of negligence on the part of ap CHICAGO, R. I. & G. RY. CO. v. LOFTIS pellant's servants in operating the engine et ux. (No. 8249.) at a dangerous rate of speed, and in failing (Court of Civil Appeals of Texas. Ft. Worth. to exercise due care to avoid injury after In an action against a railroad for death of plaintiffs' minor son, struck by defendant's train while walking on the track, evidence held to authorize finding that defendant's engine crew discovered the child on the track, unaware of the approaching train, in time to have avoided the discovering that Denny Loftis was in a situation of peril. From a judgment on these issues in apellees' favor, appellant has again appealed. As submitted to us for revision, only three contentions are made. They are, first, that there was no evidence to warrant the submission to the jury of the issue that the defendant negligently operated the engine at [Ed. Note.-For other cases, see Railroads, a high rate of speed; second, that the deCent. Dig. §§ 1356, 1358-1363; Dec. Dig. ceased was guilty of contributory negli398.] death. gence; and, third, that there is no evidence to warrant the submission to the jury of the issue of the defendant's negligence after the discovery of the peril of deceased. In the view we have taken of the case, the control ling question relates to the issue of discov- | was other testimony, however, from witnessered peril, and we will therefore address es at near-by points, who were alarmed at ourselves to it first. [1] In a general way the evidence shows that appellant's line of railway extends in a southeasterly and northwesterly direction through the town of Bridgeport, in Wise county. Bridgeport is a town of some 2,500 inhabitants, living on either side of the railway, and divided, as designated in the testimony, into East and West Bridgeport. There is a passenger depot about midway of the town, with crossings substantially at right angles with the railway, both north and south of the passenger depot. South of the passenger depot, several hundred feet, is situated a freight depot. From a point a short distance north of the upper or northern crossing, one or more switch tracks leading to the right diverge from the main line. It appears that on the day of the injury the deceased, who was about 13 years old, approached the railway tracks from the east and along the crossing south of the passenger depot. When he arrived upon the main track, the more easterly one, he turned south and continued to walk between the rails until he was overtaken by the engine that ran over him. The operatives of the engine had been engaged in some switching north of the crossing on the north side of the passenger depot, and the engine had been attached to some five or six heavily loaded cars, and was backing south along the main track at a speed of some 10 or 12 miles per hour. The engineer was on the east or right-hand side of the engine, with his face to the north, looking for signals from the conductor, located at a switch stand beyond him. The fireman was on the west or left-hand side of the engine, with his face to the south, looking, as he testified, for objects that might be upon the track. the situation of the deceased and in a situation to observe, and who testified that they did observe, that there was no diminution or slacking of the train's speed until just before the tender of the engine struck the deceased. There was evidence further tending to show that the engine and train could have been stopped, at the rate of speed it was going, within a distance from 130 to 200 feet, but that it did not in fact stop until after it had gone about that distance after it struck the deceased. From what the evidence shows that the fireman said and did, the outcries of alarm on the part of some sectionmen along the track just south of where the deceased was struck, and other circumstances, we think the jury were authorized to draw the conclusion that the operatives of appellant's engine discovered that the deceased was on the track, in a perilous situation and without a consciousness of the approaching train, in time in all probability to have avoided the serious consequences which resulted, had they in fact exercised that high degree of care which the law required of them under the circumstances. Sanches v. Railway Co., 88 Tex. 117, 30 S. W. 431; T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410. The evidence tends to further show that, when first struck, the deceased was not immediately killed, but either he or some part of his clothing caught upon some of the rods or projections of the tender, and that he was dragged along the track for some time before he finally fell and was run over, and as it seems to us in the interest of the preservation of human life we may lawfully draw the inference, as the jury may have done that, had the operatives of the engine in fact done all that they could have done to have stopped the train immediately upon the discovery of the deceased's peril, the final result would not have been the actual loss of life, though possibly it may have resulted in some injury. See N. T. Traction Co. v. Mullins, 44 Tex. Civ. App. 566, 99 S. W. 433, and cases there cited. On the whole, therefore, we are of the opinion that there was no error on the part of the court in submitting the issue of discovered peril, and that it cannot be said that the evidence is insufficient to sustain the verdict and judgment in appellees' favor on that issue. All assignments, therefore, presenting these questions, are overruled. There was evidence tending to show that, when the backing train reached a point about opposite the northern end of the passenger depot, the fireman saw the deceased approaching the track south of the passenger depot, and when but a few steps from it, with his head down and without apparent knowledge of the train's approach; that a moment later, as the deceased turned down the track, he called to the engineer to blow the whistle, as there was a man on the track; that the engineer, upon the first call, appeared not to understand what the fireman had said, but, on the call being repeated, the engineer immediately blew the whistle, this occurring at a point when the engine was [2] The remaining questions, we think, about opposite the center of the passenger may be briefly disposed of. If the operatives depot and from 130 to 200 feet from the point of appellant's locomotive engine were guilty where the deceased was overtaken. The of negligence proximately resulting in the engineer and fireman both testified that im- death of Denny Loftis after the discovery of mediately upon the blowing of the whistle his peril, it is wholly immaterial, as has the engineer reversed his engine and applied been often determined, that Denny Loftis the air brakes thereon, with which alone the was guilty of contributory negligence in entrain was supplied, and did all that could tering upon the track. See Sanches v. S. A. M., K. & T. Ry. Co. v. Ferris, 23 Tex. Civ. pellee was compelled to pay the amount of App. 215, 55 S. W. 1119. [3] To the remaining contention, raised in several forms by the assignments of error, to wit, "that there was no evidence to warrant the submission to the jury of the issue that the defendant negligently operated the engine at a high rate of speed," we cannot assent. In addition to what we have stated as to the situation of Bridgeport, the number of its inhabitants, the load of the train, the absence of brakes, except upon the engine, the backing of the engine with the tender forward, etc., it was further shown that inhabitants of the town of Bridgeport habitually and frequently walked on and along the track of the railway herein before described, and that the engine at the time was being propelled along a downgrade. In the light of all of these circumstances, we feel unable to say that there was "no evidence to warrant the submission of the issue," and this is the specific objection made. All assignments, therefore, raising the question, are overruled, and the judgment is affirmed. GONZALES v. GARCIA. (No. 5518.) (Court of Civil Appeals of Texas. San Antonio. Nov. 3, 1915.) FRAUDS, STATUTE OF 23-PROMISE TO ANSWER FOR ANOTHER'S DEFAULT - ORIGINAL OR COLLATERAL PROMISE. Where a Mexican colonel, desiring the services as soldier of a person under indictment, induced plaintiff to sign such person's bail bond as a surety, by promising to pay any sums for which plaintiff might become liable on account of the forfeiture of the bond, the contract was an original one, not within the statute of frauds. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. 23.] Appeal from District Court, Webb County; J. F. Mullally, Judge. Action by Pilar Garcia against Clemente G. Gonzales. Judgment for plaintiff, and defendant appeals. Affirmed. A. Winslow, of Laredo, for appellant. Wilmer Threadgill, of Laredo, for appellee. FLY, C. J. This is a suit, instituted by appellee against appellant, for the recovery of $278.40. The case was tried before the court without a jury, and judgment was rendered for appellee against appellant for the sum of $253.46. The only point in the case is as to whether appellant is responsible to appellee on an oral promise made by him to appellee to reimburse him for any sums that he might pay out on account of the forfeiture of a bail bond by Maximo Martinez, who was under indictment. Appellee was induced, by the promise of appellant to pay any sums for which he might become liable on account of the forfeiture of the bond, to sign the bond as a surety. The bond was forfeited, and ap it. Appellant pleaded, among other things, the statute of frauds, in that the promise made by him to appellee was not in writing. The contract was an original one between appellant and appellee; the consideration being that appellant, who was a colonel among the Mexicans, desired Martinez's services in Mexico as a soldier. The contract did not come within the purview of the statute of frauds, and appellant, upon the forfeiture of the bond and the payment of the amount of it by appellee, was liable to him for that amount. Porter v. Norman, 136 S. W. 1173; Spencer v. Nalle, 143 S. W. 991; Ferrell v. Millican, 156 S. W. 230. The judgment is affirmed. Where, in an action to recover for wood sold, the petition alleged in the first paragraph that defendant agreed to purchase from plaintiffs certain cars of wood, and in the second paragraph alleged that, in pursuance of the contract, plaintiffs sold and delivered to defendant 10 cars of wood, aggregating 185 cords, evidence that plaintiffs had contracted with defendant to ship him 450 cords of wood was not at variance with the contract pleaded. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. 355.] 2. SALES 181-ACTION FOR PRICE - EVI DENCE-IMMATERIALITY. In an action to recover for certain cars of wood contracted by plaintiffs to be sold defendant f. o. b. A., the exclusion from evidence of freight bills of the railroad company, offered to show the number of cords of wood contained in each of the 10 cars received by defendant at H., was proper, in the absence of a denial of the allegation of the petition that delivery was to be made f. o. b. cars at A., it being immaterial what number of cords of wood were in the cars on their arrival at H. [Ed. Note.-For other cases, see Sales, Cent. Dig. $$ 473-491; Dec. Dig. 181.] 3. EVIDENCE 318-MATERIALITY-BASIS OF PROBATIVE FORCE. In an action for wood sold f. o. b. cars at A., in the absence of evidence as to the correctness of the statement in freight bills of the railroad as to the number of cords of wood on arrival at H., the exclusion of such bills was proper. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. 318.] 4. EVIDENCE 158, 318- BEST EVIDENCEHEARSAY-Book. of wood sold f. o. b. cars at A., and transported In an action for the price of certain cords to the buyer at H., who claimed to have received less than plaintiffs sued to recover for, a copy of the American Railway Equipment Register, there being testimony that it was in general use among railways in the United States, as to the capacity of freight cars, supported by testimony of a witness of experience that he knew that the facts stated in the journal were correct, was admissible in evidence to show the capacity of the 10 cars containing the wood. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 472, 473, 4742-504, 506-526, 1193-1200; Dec. Dig. 158, 318.] 5. EVIDENCE 318- HEARSAY - MEMORAN DUM. In an action to recover for cords of wood sold f. o. b. cars A. and delivered to defendant at H., where the American Railway Equipment Register was admissible to show the dimensions of the cars which contained the shipment, a memorandum, excerpting from such register the dimensions of the particular cars carrying the shipment, testified to be a copy of their dimensions as given in the register, was admissible in evidence to conserve time and to avoid looking up in the register the statement as to the capacity of each individual car. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. 318.] hibit and part of the petition. Defendant answered by general and special demurrer, denied the correctness of each item of plaintiffs' itemized account, as to the amount of wood contained in each car, and attached to his answer an itemized account, which he alleged contained a true and correct statement of the number of cords of wood contained in each car, and further answered that, on the date alleged, the contract between plaintiffs and defendant was that plaintiffs agreed to ship him about 150 cords of dry wood and 300 cords of green wood, all to be first-class Brazos river bottom wood, for which he agreed to pay $2.75 per cord. That the wood shipped by plaintiffs and received by him was not first-class, but instead was small, rotten, limby, trashy wood, and alleged the 6. TRIAL 273-INSTRUCTIONS-OBJECTIONS. value of the wood shipped to him to be worth Under Rev. St. 1911, art. 1971, as amend- in the open market not more than $1 per ed by Act 33d Leg. c. 59, providing that the cord, which amount defendant in his answer charge shall be in writing, signed by the judge, tendered and offered to pay. Defendant aland submitted to the parties for inspection, that objections thereto shall be presented to the leged that the quantity of wood shipped to court before the charge is read to the jury, and him under said contract was not 185 cords as that all objections not so made and presented alleged, but was 132 cords. Defendant alshall be considered waived, an objection to a paragraph of the charge, not made and pre- leged that by reason of the failure of plainsented to the court before the charge was read tiff's to ship the grade of wood contracted, he to the jury, was waived. had sustained damages to the extent of $100, which he asked to be deducted from the amount admitted to be due for the wood received. Plaintiffs filed a supplemental petition containing a general and special demurrer to the answer, and specially denied the allegations contained in each paragraph of the answer. The court instructed the jury as [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 680-682; Dec. Dig. 273.] 7. SALES 181 DELIVERY OF QUANTITY SPECIFIED-SUFFICIENCY OF EVIDENCE. In an action to recover for a shipment of wood sold f. o. b. cars at A. and delivered at H., defendant claiming the shipment contained 132 cords only, plaintiffs claiming it contained 185, evidence on the point held sufficient to support verdict for plaintiff. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. 181.] Appeal from Harris County Court at Law; Clark C. Wren, Judge. Action by Terrell Bros. against J. M. McLaughlin. Judgment for plaintiffs, and defendant appeals. Affirmed. Geo. A. Byers and R. M. Love, both of Houston, for appellant. Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for appellees. WALTHALL, J. This is a suit brought by appellees, E. H. and A. P. Terrell, a copartnership firm of Terrell Bros., of Navasota, Grimes county, against J. M. McLaughlin, doing business as Texas Wood Company, at Houston, Tex. Plaintiffs alleged that on or about November 13, 1913, plaintiffs and defendant entered into a contract, by virtue of which defendant agreed to purchase from plaintiffs certain cars of wood f. o. b. cars Allenfarm, Tex., at the agreed price of $2.75 per cord; that in pursuance of said contract, plaintiffs, within two or three weeks thereafter, sold and delivered to defendant 10 cars of wood, aggregating 185 cords at the agreed price per cord, amounting to $508.75, more fully shown and set forth in the attached account, itemized and verified and made an ex follows: "The plaintiffs are entitled to recover for so evidence that said wood was of the kind and "If you do not believe from a preponderance The jury returned a general verdict in favor of the plaintiffs in the sum of $500.50, on which the court rendered judgment for plaintiffs for the sum of $500.50 and interest at the rate of 6 per cent per annum from the 30th day of July, 1913, and for costs of suit. Defendant filed a motion for a new trial, which the court overruled, and defendant gave notice and perfected his appeal. [1] Defendant's first assignment of error is to the action of the court in overruling defendant's motion to strike out and exclude from the consideration of the jury the evidence of A. P. Terrell, to the effect that plaintiffs had contracted with defendant to measurement of the cars made by appellant show the capacity of the cars to be about of the same capacity as the register. The testimony amounts to no more than that the witness was testifying to things within his own knowledge. Smithers v. Lowrance, 35 Tex. Civ. App. 25, 79 S. W. 1088. ship him 450 cords of first-class river bottom wood, on the ground that said evidence was at variance with the contract pleaded by plaintiffs. An inspection of the record fails to show a variance. The allegation in the first paragraph of the petition, as stated above, is that "defendant agreed to purchase from plaintiffs certain cars of wood" at the [5] The fifth assignment is to the admisprice and place named. In the second para- sion of a memorandum as to the dimensions graph of the petition, in stating the quantity of the cars reflected by the American Railway of wood delivered and for which they sue, Equipment Register. The witness Terrell tesplaintiffs allege: "That in pursuance of said contract, plain * tified: "Myself and Roland Smith checked these fig*sold and delivered to said defend-ures as shown there as to the dimensions of the tiffs * The proposition contained in the second assignment of error is that the court should have instructed a verdict for defendant on the ground that the plaintiffs pleaded a contract for the sale and purchase of 185 cords of wood at $2.75 per cord, f. o. b. Allenfarm, whereas the evidence discloses a different contract. For the reasons stated in disposing of the first assignment, this assignment is overruled. [2, 3] The trial court refused to admit as evidence, over objection, the original freight bills of the railroad company to show the number of cords of wood contained in each of the 10 cars received by the defendant, and this action of the court is made the grounds of appellant's third assignment of error. The court was not in error in excluding the freight bills as evidence of the number of cords of wood in the cars. It was immaterial what number of cords of wood were in the cars at Houston on a contract to deliver the wood at Allenfarm, in the absence of a denial of the allegation that the delivery was to be made f. o. b. cars at Allenfarm. Richard Cocke & Co. v. Big Muddy Coal & Iron Co., 155 S. W. 1019. Again, we think there was no error in excluding the freight bills in the absence of evidence as to the correctness of the statement in the freight bills as to the number of cords of wood in the cars. A. B. Patterson & Co. v. Railway Co. et al., 126 S. W. 336. The assignment is overruled. cars reflected by the register. The dimensions as shown by that register and the dimensions that is, with the exception of one car [giving as shown by this memorandum are the same, the number] which is an old series. I wrote to Mr. in regard to the dimensions of this car." The memorandum was identified by the witness and admitted in evidence. The contents of the memorandum was as to the initials on the 10 cars, their length, width, heighth, cubic capacity of the cars, as reflected by the register. If we are right in our conclusion that the contents of the register as to the capacity of the cars was admissible, we think that the admission as evidence of a memorandum made and its correctness, testified to by the witness as to the markings of the 10 cars, would not be error. The memorandum, as testified to, contained the same data as the equipment register, and was evidently admitted to conserve time, and to avoid looking up in the register the statement as to each individual car. The cases to which we are referred by appellant as sustaining his position, holding that the memorandum made was hearsay, are where the witness had no personal knowledge of the correctness of the entries made. Here the witness himself checked and testified to the correctness of the figures as shown by the register. It was simply a short and concise method of getting before the jury the statement contained in the register. The assignment is overruled. The court was not in error in refusing to peremptorily instruct a verdict for the defendant, as claimed in the sixth assignment. This assignment is based on the statement that the contract was for the sale and delivery of 450 cords of wood, f. o. b. cars at Al[4] We think there was no reversible error lenfarm, while the contract pleaded was for in admitting in evidence, over the objection 185 cords. 185 cords. We have heretofore expressed the that it was not the best evidence, was irrele- construction we place on the contract made vant, immaterial, and hearsay, a copy of the and pleaded, and we need not again restate American Railway Equipment Register, a it. The assignment is overruled. journal purporting to be published by au- [6] Complaint is made in the seventh asthority of the Interstate Commerce Commis-signment to the third paragraph of the court's sion, and especially after the evidence of the charge, in which the court instructed the witness Shepherd as to its general use among jury as follows: railways in the United States, as to the length, dimensions, and cubic capacity of freight cars used to transport freight, and after the evidence of said witness that from his own personal knowledge the facts stated "If you do not believe from a preponderance of the evidence that the wood was of the kind and grade which plaintiffs agreed to furnish to defendant, then the price which plaintiffs are to recover is the market value at Houston, Tex., of wood of the kind and grade which |