tempt to show that he was ruptured before that time, and upon this issue both sides introduced testimony. Witness McGayhreen testified that while fishing with appellee with a seine in May, 1891 (prior to the injury), he was wearing a truss. There was testimony upon this point on both sides. The newlydiscovered testimony is all for the purpose of corroborating the witness McGayhreen as to the date of the fishing. There were counter affidavits filed by appellee, and, if the court had granted a new trial on the ground of such newly-discovered evidence, it is not likely that it would have changed the result, as the evidence was merely cumulative, and not upon a leading issue, or of such importance as would be calculated to change the result of the case. Walker v. Brown, 66 Tex. 556, 1 S. W. 797; Railway Co. v. Wood, 69 Tex. 679, 7 S. W. 372; Oil Co. v. Thompson, 76 Tex. 235, 13 S. W. 60. 4. The fourth assignment of error complains at the following charge of the court: "(5) A servant has the right to presume that the appliances furnished to him by the master with which to perform the duties of his employment are reasonably safe, and it is not the duty of the servant to examine such appliances before using them to see whether such appliances are reasonably safe, unless the defective or unsafe condition of such appliances is so obvious or apparent that any person of ordinary prudence would notice such defective and unsafe condition when he came to use such appliances." In connection with this charge we will consider the sixth, which was as follows: "(6) When the defective or unsafe condition of the appliances furnished by the master to the servant is so obvious or apparent that a person of ordinary prudence would notice such defective or unsafe condition when he came to use them, and the servant uses such appliances, he assumes the risk of being injured by reason of said defective or unsafe condition of such appliances, and cannot recover of the master any damages for an injury if he reIceived such injury by reason of such defective or unsafe condition of such appliances." Appellant objects to the fifth charge in its first proposition, on the ground that it is upon the weight of the evidence, and in its second proposition on the ground that the court tells the jury that the unsafe condition of the appliances must be such that any man of ordinary prudence would notice it. The first ground is wholly untenable. The second ground might be of some weight if it was not manifest from the entire charge what the court really intended to say, which is fully set out in the sixth charge; that is, when the unsafe condition is so obvious that a person of ordinary prudence would notice it, the servant, if he uses the appliances, assumes the risk of such condition, and cannot recover. We do not see how the jury could have been misled by the charge complained of, as the charge, taken as a whole, fully and clearly sets out the law upon the subject. Railway Co. v. McClain, 80 Tex. 97, 15 S. W. 789; Dillingham v. Harden (Tex. Civ. App.) 26 S. W. 914; Railway Co. v. White, 80 Tex. 205, 15 S. W. 808; Railway Co. v. Crenshaw, 71 Tex. 345, 9 S. W. 262. 5. The fifth assignment is that the verdict of the jury was excessive. The testimony was sufficient to sustain the amount of the verdict. We find no error in the judgment, and it is affirmed. GOLDSTEIN et al. v. MANNEY et al. (Court of Civil Appeals of Texas. Jan. 15, 1896.) APPEAL-REVIEW-MOTION FOR NEW TRIAL. Where a mortgage in an action to foreclose was admitted, over objections of variance and uncertainty, and then, without notice to plaintiff, was left out of consideration, and judgment was rendered for defendant, when there was no reason why, if the mortgage was admissible, judgment should not be for plaintiff, the error can be reviewed without motion for new trial, the variance being such as could be cured by amendment, and the uncertainty being explainable by evidence, and the facts by which the error in pleading the mortgage could be corrected being disclosed by the record. Key, J., dissenting. Appeal from Williamson county court; D. S. Chessher, Judge. Action by Goldstein & Davis against J. Manney and others. Judgment for defendants. Plaintiffs appeal. Reversed. John W. Parker, for appellants. R. L. Penn, for appellees. FISHER, C. J. At a former term we affirmed the judgment of the court below. The purpose of the suit by appellants was to recover on a debt due by one of the appellees, and to foreclose a mortgage on certain property to secure the debt sued on. Two of the appellees were joined because they asserted some claim to the mortgaged property. The court below rendered judgment in favor of appellants against defendant Manney for the debt, and refused to foreclose the mortgage lien as against the other defendants. Upon the trial of the case the appellants offered in evidence a mortgage covering certain property, which was objected to by the defendants claiming the mortgaged property, because they were not parties to the mortgage, and it could not be admitted in evidence against them until its execution was proven; and because the mortgage offered in evidence was different and variant from that declared upon by the petition and made an exhibit thereto; and because the instrument was void for uncertainty, as it could not be determined from its face, whether it was intended to secure a debt due to appellants or to one Goldstein. The first ground of objection was cured by evidence proving the execution of the instrument. The court overruled the objections, and admitted in evidence the mortgage. If the mortgage was admissible in evidence in the face of the objections urged to it, the court should have foreclosed it against all of the defendants, as from the facts in evidence the appellants were entitled to recover on this branch of the case. But after the court admitted the mortgage, and during the time it was deliberating upon the case, it evidently concluded that the mortgage was not legally admissible for either or both of the two reasons last stated; and that in arriving at a judgment he concluded to not regard the mortgage as before him, for otherwise there is no other theory that can arise from the evidence that the judgment of the court can be based upon. The action of the court in admitting the mortgage in evidence when objected to, and then not considering it when making up its judgment, was calculated to operate as a surprise to appellants, and reflect injury upon their cause; for, conceding that both objections are tenable, they could, if the court had excluded the mortgage, have been easily remedied,-one by an amendment under leave of the court, correcting the matter of variance; and the other by evidence explaining the discrepancy in the names of the mortgagees, as such matter was simply an ambiguity or uncertainty that may have been remedied by explanatory evidence. Or, failing in either of these particulars, the appellants could have taken a nonsuit, and, upon reasonable showing, reinstated their case. But the ruling of the court cut them off from all of these privileges. Evidently, from the manner in which the matter is shown by the record, it appears that the announcement by the court of its judgment was the first intimation of an adverse ruling as to appellants' rights under the mortgage. The ruling coming at this late stage of the trial was too late for appellants to avail themselves of the remedies to meet the objections to the mortgage. When objections were urged to the admission of the mortgage in evidence, the court should have then promptly ruled against its admission, and should not have reserved the right to exclude it from consideration when making up the judgment. Such a practice has nothing to commend it, and, on the other hand, is likely to occasion confusion and surprise, and would often, doubtless, result in the defeat of meritorious actions, which would not be the case if the parties were given the opportunity to meet the objections when first urged. The grounds upon which we reverse the case were not called to the attention of the trial court by a motion for a new trial, but it is plain from the record that the ruling of the court in rendering judgment against the appellants after admitting the mortgage in evidence was calculated to operate as a surprise to appellants, as they had the right to conclude that, as the court admitted the mortgage, and as no defense or reason was shown why it should not be foreclosed, the court would, in order to be consistent with its ruling, render judgment in their favor. The record discloses the facts by which the error in pleading the exhibit or mortgage may be corrected; and these facts, as well as the surprise at the ruling of the court in entering judgment against the appellants after admitting in evidence the mortgage, appear as errors of law, and, such being the case, the majority of this court are of the opinion that the question may be presented to this court for its ruling without being based upon a motion for new trial in the court below. If the question was one of fact, a different rule would prevail. Our judgment heretofore affirming the judgment of the trial court is set aside, and the judgment below is reversed. and cause remanded. Reversed and remanded. KEY, J. (dissenting). I do not agree to the disposition made of this case. The mortgage in evidence not being the one sued on, it was correctly disregarded in rendering judgment. Appellants did not ask the county court to set aside its judgment and allow them to amend, and therefore, in my opinion, they are not entitled to have the judgment reversed. GULF, C. & S. F. RY. CO. v. CLEVELAND. (Court of Civil Appeals of Texas. Dec. 14, 1895.) CARRIERS-FAILURE TO STOP FOR PASSENGER-EXCESSIVE DAMAGES. 1. Where one who has purchased a ticket on a night train, on failure of the train to stop for him, without any necessity therefor, walks to his destination that night, and suffers no bad effects therefrom, and it appears that he could have been taken there by private conveyance that night or the next morning, in time for business, and could have procured lodging for the night near at hand, the measure of damages is the cost of hiring such a conveyance, procuring lodging, and what his time was worth, and a verdict of $200 is excessive. ** 2. An instruction that plaintiff could not recover if he "voluntarily exposed himself to the walk, * when, by the exercise of ordinary care, he might have avoided it," and making the measure of damages such damages as resulted from the walk, is insufficient. Appeal from Johnson county court; F. E Adams, Judge. Action by Mason Cleveland against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. J. W. Terry, for appellant. O. T. Plummer, for appellee. RAINEY, J. Appellee brought this suit against appellant to recover damages in the sum of $500, alleged to have been occasioned by reason of appellant's failing to stop its train at Rio Vista, in consequence whereof plaintiff had to walk to Cleburne, a distance of eight miles. On the trial judgment was rendered in favor of appellee for the sum of $200, from which this appeal was while at Rio Vista." taken. The first assignment of error, in effect, is that the verdict is excessive, and not supported by the evidence. The evidence shows that the plaintiff went on appellant's train to Rio Vista, and, after the transaction of some business there, he bought a return ticket to Cleburne. The train going to Cleburne passed Rio Vista at night. When the train reached Rio Vista, the station agent signaled it to stop, but it failed to do so. When the train passed, the agent of appellant refunded appellee the money he paid for his ticket, and appellee, in company with a tramp, started for Cleburne, and walked the distance in two hours. It was a clear night, and a norther blowing. Plaintiff was a young man, 25 years of age, and in good health. Plaintiff took no cold from the exposure, and was not made sick from the walk; but, he not being in the habit of walking, it made him somewhat sore for a few days. He had no family, and there was nothing demanding his presence at Cleburne until next morning; and he testified that he would have taken the same walk in like weather, at the same time of night, for $10, provided he had not gone to Rio Vista, and expected to come back on the train, and had bought his ticket to return on it. The evidence also shows that he could have obtained lodging in a few hundred yards of the depot, could have been taken back to Cleburne that night by private conveyance, or could have been taken there next morning by a train in time to have attended to his business affairs, and that plaintiff could have gotten all necessary information in reference to lodging and conveyance by asking the railroad agent. When the train passed, appellee left for Cleburne, without making any inquiry whatever. We think the verdict in this case is clearly excessive, and for this reason a new trial should have been granted. On the trial, appellant requested the following charge: "The defendant requests the court to instruct the jury that if they find from the evidence that the plaintiff, on the evening that the train failed to stop and take him on at Rio Vista, could have procured a suitable place at or near Rio Vista, convenient for him to stop at that night, or that he could have conveniently that night or the next morning procured a private conveyance to have brought him to Cleburne, to have attended to all business necessary for him to have attended to that morning,-if you find such to be the facts,-then you will find for plaintiff such sum as it would have cost him to have hired a private conveyance to have carried him to Cleburne either that night or next morning, in time for him to have reached Cleburne in time to have attended to any and all business that was necessary for him to have attended to, together with such sum as his time was worth, and such sum as he would have had to pay for lodging and meals The court charged the jury that if appellee "voluntarily exposed himself to the walk, and in consequence of such exposure, annoyance, etc., as set out in his petition, when, by the exercise of ordinary care, he might have avoided such walk, exposure, etc., then it will be your duty to find for the defendant company, and so say by your verdict." The court evidently conIcluded that the matter contained in the special charge requested was included in his general charge. We do not think such to be the case. From the evidence the jury evidently concluded that appellee's walk back to Cleburne was not voluntary, but was forced upon him by reason of the train not stopping to carry him back. So believing, they did not feel justified in finding for the defendant. The only measure of damages to govern the jury in finding for the appellee under the court's charge was the damages resulting from the walk. The true measure of damages, under the evidence, however, was embodied in the special charge asked; and, if it had been given, the jury would probably have assessed the damages as therein indicated. Under no phase of this case could the appellee have recovered more than the damages indicated in the special charge requested by appellant's counsel. It was incumbent upon him, when the train passed without stopping at Rio Vista, to ascertain whether or not he could get lodging at or near the station until next morning, when he could have gone to Cleburne on appellant's train, or, if his business was such as required him at Cleburne that night, it was his duty to inquire and ascertain whether or not he could get private conveyance; and if he could have found lodging, or private conveyance to Cleburne, if necessary, he could only recover for the expenses he would have been out, and for the value of the loss of his time. See Railway Co. v. Cole, 66 Tex. 563, 1 S. W. 629; Railway Co. v. Smith, 63 Tex. 322. The evidence fails to show what the expenses of appellee would have been had he hired a private conveyance, or stayed all night at Rio Vista, or what the value of his time was; and consequently we have no criterion upon which to base a judgment for the damages sustained, and therefore cannot require a remittitur. For the reasons indicated, the judgment is reversed, and the cause remanded. HAWLEY v. WHITAKER. (Court of Civil Appeals of Texas. Nov. 9. 1895.) WHO MAY APPEAL-NOMINAL PARTIES. R., discovering a defect in plaintiff's title, procured from the original owner of the premises a deed to himself, acting as agent of a corporation; and, in a suit against R. and the corporation, plaintiff recovered judgment against both defendants for the possession of the land, and against the corporation for damages. Held, that R., being merely a nominal party, was not injured by the judgment, and could not appeal. Appeal from district court, Marion county; John L. Sheppard, Judge. Action by J. S. Whitaker against the Lone Star Iron Company, a corporation, and R. C. Hawley. From a judgment for plaintiff, defendant Hawley appeals. Affirmed. Armistead & Prendergast, for appellant. Todd & Todd, for appellee. company, and he held the land in trust for said company. It appears from the foregoing facts that Hawley was a mere nominal party to the suit, as such interest in the land as was acquired by the conveyance from Cummings to Hawley was really for the benefit of the iron company. It follows that, as Hawley had no real interest in the land, he is not injured by the judgment of the court below. Hawley having no real interest in the land, and the iron company being a party to this suit, and not having appealed, we will not review the action of the court at the instance of appellant, Hawley. The judgment is therefore affirmed. NIAGARA STAMPING & TOOL CO. v. (Court of Civil Appeals of Texas. Dec. 7, SEIZURE OF PROPERTY BY MORTGAGEE-LIABILITY 2. A bill of exceptions not filed till after adjournment of the court cannot be considered on appeal. Appeal from district court, Dallas county; Edward Gray, Judge. Action by Niagara Stamping & Tool Company against T. J. Oliver, assignee. Judgment for defendant. Plaintiff appeals. Affirmed. Smith & Monroe, for appellant. Geo. H. Plowman, for appellee. RAINEY, J. In 1892 appellee, Whitaker, brought suit in the district court of Marion county against the Lone Star Iron Company, a corporation, and R. C. Hawley, for the title and possession of 1,0482 acres of land, and for damages to same. The case was tried by the court without a jury, and judgment was rendered for plaintiff for a one-half undivided interest in the land, and right of possession against both defendants for all the land, and judgment against the Lone Star Iron Company for $800 damages. R. C. Hawley alone appeals. From the evidence it seems that one Carter was the common source of title. He sold to one Cummings in 1868. During the latter part of said year, Cummings conveyed the land, in trust, to one Williamson, to secure judgment debts due one Nall, Welham, and Walworth, and empowered Williamson to sell the land, and apply the proceeds to the payment of said debts pro rata. Walworth's heirs sold their interest in the land to Whitaker In 1887. Whitaker also claimed the interest of Nall. In March, 1891, the Lone Star Iron Company, through their agent, Hawley (appellant herein), endeavored to purchase the land from Whitaker. Whitaker was unable to secure the Welham interest, but agreed to sell his interest therein. Upon an examination of the title, the iron works discovered that Whitaker did not have title to the land, and that his only right to the land was under the deed of trust given by Cummings in 1868. After ascertaining this fact, in July, 1891, the iron company's agent, Hawley, hunted up Cummings, who was still living, and, for the sum of $100, induced Cummings to convey to him (Hawley) the land. In August of the same year, Cummings executed a deed of trust to George R. Beard, conveying the land, as contained in the orig-pellant introduced in evidence a mortgage on inal deed of trust, for the benefit of plaintiff herein, and with the same powers as were given to Williamson in the original deed of trust. During negotiations between the iron company and Whitaker for the sale of the land, the iron company entered upon the land, and cut timber thereon, which they continued to do after Hawley received the deed from Cummings, but none was removed from said land until after the deed was made to Hawley. The value of the timber so cut and removed by the iron company was $800. In taking the deed from Cummings, Hawley acted as agent of the iron v.3 s.w.no.6-44 RAINEY, J. Appellant brought this action to recover certain property of appellee, which property was seized by virtue of a writ of sequestration at the instance of appellant. The petition alleged that appellant owned the property, and that the appe.lee had wrongfully, and without the consent of the plaintiff, taken said property from the possession of appellant, and converted the same to his own use, etc. Appellee pleaded the general denial, and reconvened for damages for the value of the property. On the trial the ap the property executed by one Zeigler to appellant. Appellee claimed the property as assignee of the Dallas Stamping Company, who owned said property by virtue of a purchase from said Zeigler. Appellant not having introduced any claim to the property, except by virtue of the mortgage, the court instructed the jury, in effect, that the appellant was not entitled to recover, and that appellee was entitled to damages for the amount of the value of the property levied upon, as the property had been destroyed after it was seized by virtue of said writ. It is well settled that a mortgagee out of possession cannot sue to re cover mortgaged property, as the owner thereof. Appellant did not have possession of this property, nor was it the owner thereof. Under the facts, no right existed in the appel lant to the title. Appellee was the owner and entitled to possession of the property, subject only to a foreclosure of the mortgage, which is not attempted in this suit. The property having been lost after its seizure by the writ of sequestration entitled appellee to damages for the value thereof. The court's instructions, under the evidence, were proper. Appellant assigns as error the refusal of the court to permit it to prove that the goods in controversy were stored by the sheriff for appellee, and subsequently destroyed by fire, and that appellee received the insurance money for said goods. This assignment cannot be considered, for the record fails to show that the bill of exceptions was taken and filed within the time prescribed by law. We find in the statement of facts what purports to be a bill of exceptions to the action of the court in excluding this evidence, but the statement of facts shows it to have been filed nine days after the adjournment of court. It is well adjudicated that a bill of exceptions, in order to require the consideration of this court, must be filed within 10 days after the trial of the cause, and before the adjournment of the term. The bill of exceptions in this case having been filed after the adjournment of court is of no effect. Schaub v. Brewing Co., 80 Tex. 637, 16 S. W. 429. No error appearing, the judgment is affirmed. GULF, C. & S. F. RY. CO. v. JORDAN. (Court of Civil Appeals of Texas. Nov. 30, 1895.) CARRIERS INJURIES TO PASSENGERS CARRYING PASSENGER BEYOND STATION. Plaintiff, who was a passenger, at night, alighted from the train, which had passed beyond his station, without objection, after being told by the conductor that the train had passed the station, and was "about" a certain place. Held, that plaintiff could not recover for injuries received by falling through a bridge in attempting to return to the station, as he assumed the risks incident to getting off where he did. Appeal from Johnson county court; F. E. Adams, Judge. Action by W. S. Jordan against the Gulf, Colorado & Santa Fé Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed. J. W. Terry, for appellant. Henry, Patton & Brown, for appellee. RAINEY, J. The appellee, Jordan, took passage on appellant's train at Alvarado to go to Wyatt Switch, on appellant's road. Upon reaching Wyatt Switch the train ran about 500 yards beyond the switch. Plaintiff alighted therefrom, and in walking back towards Wyatt Switch he fell, while crossing a bridge, and injured himself, and sued to recover damages of appellant. Judgment was rendered in favor of plaintiff for $250, from which appellant railway company prosecutes this appeal. The testimony shows that the train did not stop at the usual stopping place at Wyatt Switch on this occasion, but ran about 500 yards beyond; and, when the train stopped, plaintiff got up and started towards the door, to get off, when the conductor in charge of the train said to him, "We have passed our usual stopping place, and are up about the dirt road." Plaintiff replied that it was "all right," and got off at that point. It was in the nighttime, and dark, and where the train stopped was about 250 yards from where the dirt road crossed. In going back towards Wyatt Switch, plaintiff fell through the bridge and was injured, as above stated. Upon this state of case the court charged the jury that: "If, you shall further believe from the evidence that the train was, by the conductor, stopped about 500 or 600 yards from and beyond the usual place of stopping said train at such place, and that when the train was so stopped the plaintiff was requested by the conductor to alight from the train, and that said conductor at the door informed the plaintiff that the place where he was requested to alight from said train was at the dirt-road crossing of said railway, and that, relying upon such information so communicated, the plaintiff did alight from the train," etc. Appellant complains that this charge assumes that plaintiff was requested to alight at that point, and that the train was at the crossing of the dirt road which crossed the railroad, and that said charge is not warranted by the evidence. While the charge is not an assumption that such state of facts existed, yet it instructs the jury to find for plaintiff if they believed a certain state of facts which were alleged in plaintiff's petition to exist, but which in fact were not substantiated by the evidence adduced on the trial. The evidence does not disclose that the plaintiff was requested by the conductor to alight, nor does it show that he stated that they were at the dirt-road crossing. This being so, the charge was erroneous. It is further complained by appellant that the verdict is not supported by the evidence, which assignment we think well think well taken. From the evidence it will be seen that there was no request by the conductor to plaintiff to alight; but, from plaintiff's own testimony, it is shown that the train stopped, and he started to alight without invitation from the conductor, and as he passed out of the car the conductor informed him he was "about" the crossing of the dirt road, which remark was sufficient to put plaintiff on notice that the conductor was not certain as to the exact point at which they had stopped. From the evidence, we think it is clear that plaintiff knew he had passed Wyatt Switch, and there is nothing to show but what he |