of negligence, as substantially alleged in the petition, was "that, during the trip, and long before the defendant's train reached Ringgold, the passenger conductor came to the plaintiff's wife and child, and took up their tickets, and gave them no marked tickets, and at the time told Mrs. Boyles to take care of her sick child, and trust to him (the conductor), and assured her that he would see that she got off at Ringgold all right; that she relied on his assurances, and depended on him to inform her when she arrived at Ringgold; that she was busily engaged with her sick child, and did not hear the name of Ringgold called by anyone, and did not know when she passed the station, and the conductor failed and neglected to notify her, as he agreed to do, of the arrival of the train at Ringgold; that she did not know or suspect that she had passed the station until she was 15 or 20 miles beyond it, at which time she called the conductor, and reminded him of his promise, and of her earnest desire to be at Ringgold that night; and that he failed and refused to carry her back." The evidence relied upon by the plaintiff to sustain these allegations is the testimony of Mrs. Boyles, as follows: "My child was very sick, and, when the conductor came around, he noticed my child being sick, and told me to attend to my child, and that he would see me off at Ringgold, and I relied on his promise, and was attending to my child when we passed my station, and I did not know anything about it. If the name of the station was called, I did not hear it, and knew no better until we had got some distance beyond there. I didn't know we had passed Ringgold until I heard the trainmen call 'Bowie,' when I found that we had passed my place, and I then called the conductor, and told him about it, and he said for me to stay all night at Bowie, as there would be no train back until morning, and he would bring me back in the morning on the train. *** I went to the train the next morning, and the conductor carried me back to Ringgold, and I got to St. Jo that evening. If I had not If I had not been carried past, I would have got there in the morning." The conversation, as detailed by Mrs. Boyles, with the conductor, conflicted with the statement of the latter, who testified as follows: "When I took up Mrs. Boyles' ticket she asked me about the station she got off at, and I told her she would be notified in time to get off. I didn't tell her I would see her off, or help her, but that she would be notified. And when we left Terrall, the station before we get to Ringgold, my brakeman called out twice, loud enough to be heard over the car, "The next station is Ringgold.' And then, when the whistle sounded, he called it out twice more, and the people began to get off, and I went to the front end. There were several people got off, men, women, and children, and I had no idea but what this lady got off, till I went through the car, after we left there, and found her

still on. She said she did not hear the station called, and I then told her that I would carry her on to Bowie, where there were good hotels, and would bring her back the next morning, to which she made no objection. I carried her back the next morning." In his statement that notice of the station was announced four times, and that the train was stopped at Ringgold, and that passengers for that station left the train, the conductor is corroborated by other witnesses.

On this issue of negligence, and the consequent damages, the court thus instructed the jury: "It is the duty of railway companies, in transporting passengers over their railway lines, to have announced the names of the different stations upon their line of railway upon the arrival of their train, in such a manner that persons using ordinary care will be apprised of the name of the station. And if you find and believe, from the evidence, that plaintiff's wife and child were passengers on defendant's train, as alleged in plaintiff's petition, and that she was carried beyond the place of her destination, but that the defendant, by its agents and employés, did duly call out the name of the station, Ringgold, upon the arrival of said train, you will find for the defendant, unless you further find that, before the train reached Ringgold, the conductor in charge of defendant's train assured the wife of plaintiff that she might rely on him to notify her personally when the train reached Ringgold, and that she did rely on said assurance, and that she did not hear the name of the station called out, and did not know when the train passed the station, and that, by reason of being carried beyond her destination, the wife of the plaintiff suffered, physically and mentally, as alleged in plaintiff's petition, and that the injuries, if any, were occasioned directly and proximately by the negligence of the defendant's agents and servants. Then you may find for plaintiff such damages as the evidence may show to be fair and reasonable to him for damages, as alleged in his petition." That portion of the foregoing instruction which imposed the duty upon the carrier, on account of the promise of the conductor, to give personal notice to Mrs. Boyles of the arrival of the train, we hold, under the condition of the evidence in this case, to be erroneous. Ordinarily, the duty of a conductor, as such, towards a passenger has ceased when the carrier has transported the passenger in safety to his point of destination, has announced the arrival of the train at the station, and has afforded reasonable time and opportunity for the passenger to leave the cars. Hutch. Carr. § 614. If the conductor undertake to do more, as to awaken a sleeping passenger, and to notify him personally, it becomes a mere personal undertaking, as between the conductor and the passenger, an undertaking beyond the scope of the conductor's duty, and in no sense the obligation of the carrier. "So, it is said that

it is, ordinarily, no part of the carrier's duty to see that passengers are awaked when the train reaches their destination, and that the company is not bound by the conductor's promise to so awaken the passenger. Exceptional circumstances might, however, impose the duty." Id. § 617b. The court of civil appeals for the Fifth district (Railway Co. v. Kendrick, 32 S. W. 43) quotes, with evident approval, the decision of the supreme court of Mississippi (Sevier v. Railroad Co., 61 Miss. 8), holding this rule applicable in case of a promise made by a conductor to a passenger asleep, even though his sleep is due to sickness. We are not disposed to give the rule so broad an application. We think that circumstances, involving the consideration of age, sex, or physical infirmity, may bring that within the scope of the conductor's duty towards a passenger which would, otherwise, be beyond the limit of such obligation. Hutch. Carr. § 670; Railway Co. v. Finley, 79 Tex. 85, 15 S. W. 266. But, to create the exception, it should, we think, be made to appear that the conductor knew the facts which give rise to its application.

If,

in this instance, the conductor, knowing the helpless condition of Mrs. Boyles, due to the sickness of the child, and recognizing the necessity of her giving exclusive attention to it, had promised to give her personal notice when the train reached Ringgold, and to assist her in alighting, we are of opinion that such a promise would be, at least, within the apparent scope of his power as a conductor, and that noncompliance with it would be binding on the company. It will be noted, however, that this question of the conductor's promise to her was submitted without reference to his knowledge of the sickness of the child, or of the necessity that might require the mother's exclusive attention to its needs. We cannot say that the existence of such knowledge was undisputed, because the testimony of the conductor imports his utter ignorance of the child's condition.

In the instruction already quoted, the court submits, under the allegations of the plaintiff's petition, and upon evidence admitted over defendant's objection, as an element of damage to be considered by the jury, the fact that the plaintiff had made arrangements with his father-in-law to meet his wife at St. Jo, thence to transport her and her child to the wife's sister, in the country, where his sick child was to receive such medical attention as it seems the sister was peculiarly qualified to give. Whether in fact the father-in-law was at St. Jo, in accordance with this arrangement, does not appear from the record. It might well be said that the charge, in this respect, was without evidence to support it; but, had it been proven, it would not be a matter for the proper consideration of the jury, under the pleading and evidence in this case. Where a carrier has violated its contract with the passenger by carrying the latter beyond his destination,

those damages may be recovered which may compensate the passenger "for the discomfort, inconvenience, sickness, expenses, costs, and charges which are shown, by the proof in this case, to have been the direct and proximate, natural and probable, result of the carrier's breach of duty." Railway Co. v. Terry, 62 Tex. 384. Only such a result should be regarded as "direct and proximate, natural and probable," as could be held to be within the contemplation of the parties to the contract the breach of which is complained of. Car Co. v. McDonald, 2 Tex. Civ. App. 325, 21 S. W. 945. Here the fact is neither averred nor proven that the carrier knew that the plaintiff's wife intended to go to St. Jo, or that the carrier knew that she was to be met by her father at the latter place, to be taken to her sister's home, or that, failing to meet her father, and being thereby deprived of the power of reaching her destination from the morning to the afternoon or evening of the same day, she would suffer keen anguish and disappointment as a result, or that she would be deprived of the medical treatment to be administered by her sister to the sick child. The record suggests that the action of the court in the respect here indicated was probably seriously detrimental to the rights of the appellant. The judgment is reversed, and the cause is remanded.

AUSTIN & N. W. RY. CO. v. McELMURRY. (Court of Civil Appeals of Texas. Dec. 11, 1895.)

ACCIDENT AT CROSSING ORDINARY CARE IN-
STRUCTION-EXPERT TESTIMONY-
ATTACK ON CHARACTER.

1. An instruction that if, at the time of the collision, defendant's employés in charge of the train failed to give a signal as required by law, but plaintiff, by ordinary care, would have discovered the train in time to have avoided injury, he could not recover, is rendered erroneous by addition of the clause, unless failure to give a signal as required by law was sufficient to cause a man of ordinary care to relax his diligence, and that, as a matter of fact, such failure did cause his injury; it being implied that under the circumstances enumerated plaintiff need not exercise ordinary care.

2. A physician who treated plaintiff after he was run into by defendant's train, and who had stated that plaintiff complained of certain pains, may give his opinion as an expert as to whether plaintiff was injured, and the nature and extent of his injuries, and whether, in his opinion, the complaints were real or simulated; but cannot give as a reason for his opinion his confidence in plaintiff.

3. That a physician, who has testified that plaintiff complained to him of certain pains, and that, in his opinion, they were not simulated, admits on cross-examination that it is possible for a person to simulate such complaints, and deceive a physician, is not an attack on plaintiff's character, admitting of evidence in support of it.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by J. D. McElmurry against the

Austin & North Western Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

Fisher & Townes, for appellant. Walton & Granberry and W. W. Wood, for appellee.

KEY, J. 1. The ninth paragraph of the court's charge reads thus: "But, on the other hand, if the jury find that at the time and place of the collision the defendant's agents and employés failed to blow the whistle or ring the bell, as required by law, but that the plaintiff, by the use of ordinary care, would have discovered the approach of the train in time to have avoided injury, the plaintiff cannot recover, unless the jury find that the failure to ring the bell or blow the whistle as required by law was sufficient to cause a man of ordinary care to relax his diligence and care, and that as a matter of fact such failure did cause his injury, in which case the defendant would be liable. Again, if the jury find from the evidence that after plaintiff got upon the railroad track, or so near thereto that he could not extricate himself from danger, the defendant's employés in charge of said train discovered plaintiff's position of danger in time, by the use of ordinary care, to have stopped the train in time to have avoided the collision, and failed to do so, then the defendant would be liable." The clause, "Unless the jury find that the failure to ring the bell or blow the whistle as required by law was sufficient to cause a man of ordinary care to relax his diligence and care, and that as a matter of fact such failure did cause his injury, in which case the defendant would be liable," carries with it an implication that, if the conditions therein referred to were shown to have existed, the plaintiff was under no obligation to exercise ordinary care. Such is not the law. It is true that under one state of facts a person may not be required to do the same thing to protect himself that would be required under another and different state of facts. But he is at all times required to exercise such care as a person of ordinary prudence would have exercised under the same or like circumstances; and, in law, and, in law, such care is denominated "ordinary care." By that expression, as used in legal parlance, is not meant such care as is usually exercised under ordinary circumstances, or regardless of circumstances, but such care as ordinarily prudent persons would exercise under the circumstances of the particular case; and the duty to exercise this care is a continuing and ever-present duty, however much conditions and circumstances may change. The phrase above quoted should have been omitted from the charge. Its tendency was to place an improper qualification upon an otherwise correct statement of the law of contributory negligence, and we cannot say that the jury was not misled by it.

2. Dr. Field, who treated the plaintiff, testified that he complained of deep and severe pains in his back, loins, and legs; and we think it was proper for him to give his opinion as an expert as to whether or not the

plaintiff was injured, and the nature and extent of his injuries; and in so doing he could state whether or not, in his opinion, the complaints referred to were real or simulated. But it was not proper, after he had stated that he did not believe the plaintiff was simulating, to state, in the nature of a reason for such belief, that he had known the plaintiff a long time. He could give any reason within the range of expert testimony for his opinion as to the reality of the plaintiff's complaints; but he could not, as an expert, base his opinion on his confidence in the integrity of the man. Such evidence would not be expert testimony, because any other person, who had known the plaintiff the same length of time, would be as well qualified to speak concerning his honesty. Besides, this testimony tended to support the plaintiff's character for honesty, which had not been attacked by appellant. It is true that on crossexamination Dr. Field had been asked if it was not possible for a person to simulate such complaints, and deceive a physician, and he had stated that it was. Proof that it was possible for a person to have sworn falsely or acted dishonestly does not constitute an attack upon such person's character; and, until his character is assailed, evidence is not admissible in support thereof, and then the evidence pro and con must refer to the person's general reputation, and not be the individual opinion of the witness. The inference to be drawn from this evidence is that, in the opinion of the witness, the plaintiff was an honest and truthful man. We also think it was improper to allow Dr. Field to say that he would not have treated the plaintiff if he had believed he was simulating, though we do not say that that testimony was such as would require a reversal of the case. The statement is more in the nature of an argument; and while it may tend to show that the doctor was honest and sincere in his diagnosis of the plaintiff's case, it does not state any fact, and is nothing more than the witness' opinion as to the course he would have pursued had his diagnosis been different.

3. Complaint is urged against the sixth and eighth paragraphs of the court's charge, on the ground that they permit the plaintiff to recover without reference to the question of his contributory negligence. Without holding reversible error in the respect under consideration, it is suggested that upon another trial the charge be prepared with more accuracy, thereby eliminating the objection referred to.

4. Concerning the objections urged to the plaintiff's petition under district court rule 18, it would seem that appellant's alleged special exception, charging that the petition is

5. There are several assignments of error presenting other questions, which we deem it unnecessary to discuss in detail. Suffice it to say that, in our opinion, they present no reversible error. Judgment reversed, and cause remanded. Reversed and remanded.

HAMBEL et al. v. DAVIS et al. (Court of Civil Appeals of Texas. Dec. 11, 1895.)

JUSTICE COURT-JUDGMENT-COLLATERAL ATTACK

-SERVICE OF CITATION-PRESUMPTION.

1. A judgment of a justice of the peace, though silent as to service of citation, will be presumed to be valid, on collateral attack, until the contrary is shown, either from the record, or by evidence aliunde.

2. Such presumption is not overcome by proof that a citation issued in the proceedings was defective, if there was time for the service of another and valid citation, and no affirmative showing that such other citation was not served.

3. Act Aug. 13, 1870, authorizing service of citation by publication, was not affected by the repeal of the printing act in November, 1871. 24 S. W. 972, affirmed.

Appeal from district court, Caldwell county; H. Teichmueller, Judge.

Action by Hambel & Heasty and others against Jefferson Davis and others to recover land. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. R. Stringfellow and J. Nix, for appellants. Storey & Storey, for appellees.

KEY, J. Appellants sue to recover a tract of land. This is the second appeal. 24 S. W. 972. At the last hearing in the court below the case was submitted to the judge on an agreed statement of the facts, consisting mainly of documentary evidence, and judgment was rendered for the defendants. According to said agreed facts, which we adopt as our conclusions of fact, the defendants hold title under a judgment of a justice of the peace of this state rendered August 3, 1874; and appellants admit that, if said judgment is not void, they are not entitled to recover the land.

A judgment rendered by a domestic court of general jurisdiction, whether it recites the existence of legal notice to the defendant, or is silent on that subject, is, when attacked collaterally, presumed to be valid; and, where it does not otherwise appear from the record, it will be presumed that all the facts essential to jurisdiction existed, and were made to appear, when when jurisdiction. was exercised.

Burns, 80 Tex. 677, 16 S. W. 1072. If the judgment recites valid notice, such recital will control the balance of the record, and preclude all further inquiry. If, as in Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, the judgment refers to and indentifies the notice served on the defendants, and the notice so referred to is invalid, then, although the judgment may recite due notice, it will be held null and void. Also, where it is apparent there was not sufficient time to obtain service by publication, and the judgment recites such service, such recital will not be treated as conclusive. Stewart v. Anderson, 70 Tex. 888, 8 S. W. 295. Although justices of the peace courts are courts of general jurisdiction,-Williams v. Ball, 52 Tex. 603; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Clayton v. Hurt (decided by our supreme court at its present term) 32 S. W. 876,-in Wilkerson v. Schoonmaker, 77 Tex. 615, 14 S. W. 223, where a judgment rendered by a justice of the peace contained no recital in regard to service of citation, it was held that parol evidence tending to show that the defendant was not served with citation was admissible. But, granting these exceptions to the general rule above stated, it is undoubtedly correct to assert that on a collateral attack a judgment rendered by a justice of the peace, although silent as to service of citation, will be presumed to be valid, and to rest upon legal service of citation, until the contrary is made to appear, either from the record, or by evidence aliunde. And the burden rests upon the person attacking such a judgment to show that there was no legal service of citation on the defendant.

Applying these rules to the case in hand, what is the result? August 3, 1874, a personal judgment, silent as to service of citation, was rendered by a justice of the peace in this state, in a cause then pending before him, the subject-matter of which was within the jurisdiction of his court; and appellants admit that they are not entitled to the land sued for unless said judgment is null and void. Their contention is that the judgment should be held void because it is shown that there was no legal service of citation on Kelley, the defendant in that suit, and because said Kelley was then a nonresident of this state. Concerning the latter contention, it is sufficient to say that, even if that question can be raised by evidence aliunde the record, we do not think the evidence relied on by appellants to show nonresidence sufficient to overcome that tending to show that Kelley resided in the state, aided as it is by the presumption in favor of the validity of the judgment.

This narrows the case down to the issue of notice to the defendant Kelley, and, to show that legal notice was not served on him, appellants show that the suit was instituted June 8, 1874; that Levyson, the plaintiff in the case, made affidavit that Kelley was a