railroad, or in work incidental to such operation?" It will be noticed that the sentence is what is denominated a "simple sentence" in the rules of syntax; that is, that only one principal statement is made. The prepositional phrases "in the operation of its railroad" and "in work incidental to such oper facts pleaded and supported by testimony should be affirmatively submitted to the jury even when the case is submitted upon special issues, as is the rule when the submission is by general charge. Such is the rule where the case is submitted by general charge. M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Wichita Falls Tractionation" are merely adverbial phrases modifyCo. v. Adams, 107 Tex. 612, 183 S. W. 155. We think that rule has no application where the case is submitted upon special issues. In accordance with a general charge, the jury is required to find for or against one of the parties; whereas, by special issues, "the jury, as triers of facts solely, had nothing to do with the legal effect of their find-lowing peremptory instruction: "You are inings." Fain v. Nelms, 156 S. W. 281, § 4; G., H. & S. A. Ry. Co. v. Hodnett, 182 S. W. 7. The fourth and seventeenth assignments are overruled. The foregoing reasons also require us to overrule the ninth and tenth assignments of error, which contend that the court should have affirmatively submitted the groups of facts pleaded and testified to by appellant. [6] The fifth assignment is that the court erred in asking the jury, "Was the appellee at the time of injury engaged in the discharge of his duties as appellant's employé?" The objection is that the question submitted to the jury is a question of law. The objection is not tenable. The fifth assignment is overruled. [7] The seventh assignment charges that it was error to ask the jury whether box car No. 173 belonged to the appellant at the time of the injury. The proposition is that the question is one of law, not of fact. The question submitted a fact, not law, in the meaning of the statute, art. 1985. The seventh assignment is overruled. [8] The eighteenth assignment complains of error because the court refused to give special issue No. 14, requested by appellant. Issue No. 14, which was refused, instructed the jury to find whether box car No. 173 belonged to the contractor Franklin at the time of the injury. The fact of ownership of that car was submitted in a form selected by the court, and it was not error to refuse to submit the issue in the form desired by appellant. As in the fourth assignment, appellant claims the right of an affirmative submission of groups of facts pleaded by it, even when the case is tried by special issues. This has been determined against appellant's contention in our discussion of the fourth assignment. [9] Under the sixth assignment we are called upon to determine an elemental question of syntax. The objection directed against the question submitted is that it submits two issues in one, requiring two answers. The question is: "At the time the plaintiff claims to have been injured, on November 29, 1913, was box car No. 173 being moved by the defendant, San Antonio, Uvalde & Gulf ing the predicate. In order to be subject to the criticism made by appellant, the sentence must have been constructed into a compound sentence, composed of two co-ordinate clauses. The sixth assignment is overruled. [10] The eleventh assignment insists that it was error for the court to refuse the fol structed to return a verdict for the defendant, the San Antonio, Uvalde & Gulf Railroad Company." The contention is that there is no evidence of probative force to prove liability against the appellant. If there was any evidence, as defined by the Supreme Court in the case of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, that appellee was an employé of appellant at the time of his injury, and was at that time performing the duties of his employment, and that the negligence of appellant proximately caused his injuries, then the peremptory instruction was properly refused, otherwise it was error. [11] The greater part of the testimony introduced bore upon the question of who was appellee's master at the time. Appellee testified that he made a written application for employment by the railroad company; that the blank form of the application was furnished him by the superintendent of the appellant railroad company; that this application was filled out by himself and delivered to the agent of the railroad company; and that the application was granted by the railroad company. He further testified that by virtue of that application he was put to work by the railroad company as conductor; that as such conductor he was at the time of the injury engaged in making up a train for the purpose of hauling passengers and freight according to schedule of the railroad company. The application itself is addressed to the railroad company, and its terms bind appellee to perform certain duties for the railroad company, and bind appellee to certain waivers of appellee's rights in favor of the railroad company. The agent of the railroad company accepted that application and indorsed on it his acceptance by writing on it the date from which appellant became an employé of the railroad company. The agent was named Whitfield, and the fact of acceptance was testified to by Mr. Rieck, superintendent of the railroad company. The ratification of some of the terms of the contract was further shown by the fact that appellant submitted himself when injured to the railroad company's surgeons as the application provided, and he was treated [16] No undisputed facts should be submitted in spècial issues. Vernon's Sayles' Rev. Civ. St. § 1985. The fourteenth assignment is overruled. Appellee further testified that he never, definition of any term used in any special heard that he had been employed by Frank- issue given, and hence not required by the lin until after his injury. Mr. Rieck testi- statute (article 1984a). fied that if at the time of the injury appellant was engaged in the service of hauling passengers and freight over the railroad from any point to Mathis, that service was for the railroad company. Appellee testified that when injured he was making up a train to transport passengers and freight from the Nueces river to Mathis. The foregoing testimony alone is sufficient evidence of probative force to sustain the finding of the jury that appellee at the time of the injury was an employé of the appellant railroad company, and was engaged in the performance of the duties required of him by his employer, the appellant company. There was sufficient evidence of negligence that proximately caused the injury. [12] There was much direct and circumstantial testimony to prove that appellee was in the service of an independent contractor who was constructing the railroad; but the jury determined the issue in favor of appellee, which determination binds us. The eleventh assignment is overruled. For the same reasons given in disposing of the fourteenth assignment, the fifteenth is also overruled, and likewise the sixteenth. [17] The nineteenth assignment complains of the refusal to submit a requested special issue. The issue requested required the finding of the evidence by which the fact of employment was to be determined and not the fact of employment. Such questions are expressly forbidden by article 1985, Vernon's Sayles' Rev. Civ. St. The nineteenth assignment is overruled. For the same reasons the twentieth assignment is overruled. The question presented in this assignment is, who gave appellee instructions to do the work at which he was injured? The fact to be established is, Was appellee in the employ of appellant when injured? The refused question, it is apparent, required a finding of evidence that tends to prove the [13] The twelfth assignment is overruled. fact of appellee's employment by appellant. The court properly refused to instruct the| Then again, the issue of who was the master jury upon the weight of the evidence. The was properly submitted by the court in its statute expressly forbids it. Vernon's second issue. Sayles' Civ. St. art. 1971. The instruction refused it: "You are instructed that the making of an application for employment by the plaintiff, and the agreement proven as to plaintiff's seniority on the railroad company's list of conductors, does not constitute an employment by the railroad company." The instruction requested is not in explanation of any legal terms used in the issues given. Vernon's Sayles' Rev. Civ. St. 1984a. [14] The thirteenth assignment is overruled for the reason that the instruction requested and refused was misleading and was not explanatory of any of the special issues given to the jury. The jury were not asked whether appellant was an employer nor whether appellee was an employé. The second issue given was whether appellee was in the employ of the appellant. The court was not requested to define the meaning of the word "employ," as used in that second issue given, and the definition requested of the words "employer" and "employé," even if correct, would not have been pertinent to the second issue. [15] The fourteenth assignment is that the court erred in refusing to charge to the effect that J. E. Franklin was an independent contractor and that the railroad company would not be liable for his negligent acts. The reason assigned in the bill of exception why this was error is that the proof shows without contradiction that Franklin was such contractor, and that it necessarily follows that the railroad company would not be liable. The charge requested is not an explanation or The reasons above mentioned also require us to overrule the twenty-first assignment. The twenty-third assignment is overruled because the issue requested was given by the court in special issue No. 6 in language that more nearly conformed to the issue of fact made by the pleadings and evidence. [18] The twenty-fourth assignment is overruled because the bill of exception does not show what answer the witness would have made if the objection had not been sustained to the question. Shoe Co. v. Ferrell, 68 Tex. 638, 5 S. W. 490; Moss v. Cameron, 66 Tex. 412, 1 S. W. 177; Dunham v. Forbes, 25 Tex. 25. [19] The twenty-fifth assignment urges that the court erred in overruling appellant's request to exclude certain testimony, objected to when offered. The objectionable questions and answers are: "Q. Whom were you collecting that money for? A. San Antonio, Uvalde & Gulf Railroad Company. Q. Whom were you collecting tickets for? A. San Antonio, Uvalde & Gulf Railroad Company." The objection made is that the answers are merely conclusions of the witness. The objec tion is not tenable. The answers state facts. The twenty-fifth assignment is overruled. [20] The twenty-sixth assignment is overruled because the bill of exception does not show any order of the court complained of. After questions and answers covering the interest of J. E. Franklin in the railroad company were in evidence, appellant's counsel asked that it be excluded. The bill of exception shows that the court discussed the objections made, but never ruled upon the next for the president. The change of masmotion to exclude. The motion seems to have|ters, from contractor to president, appellant been allowed to fade away after appellee's | sought to have determined by the system of counsel stated he would ask no further ques- bookkeeping; the changing of ownership of tions along that line. The bill of exception cars, which flitted from contractor to presimust affirmatively show that the court actu- dent “like ships that pass in the night"; by ally did rule upon the motion, in order to be acceptance of indefinite piecemeals of the considered by us. roadbed by the president from the contractor; and by the constantly changing use of the roadway and rolling stock, first by the president, then by the contractor. That this character of testimony by the appellant made relevant the further details of these varying transactions between the president and the contractor is plain. All assignments from the twenty-ninth to the forty-first, inclusive, are overruled. [21] The twenty-seventh assignment is overruled. It was not error to permit the appellant's witness, who was president of the appellant company, to testify on cross-examination that two of the important officials of the appellant company also held official positions with J. E. Franklin, the construction contractor. Appellee alleged and endeavored to prove that the relation of master and servant existed between himself and the railroad company at the time of the injury. Appellant, by pleading and testimony, endeavored to refute this, and to that end endeavored to prove by circumstances, as well as direct evidence, that appellee's master at the time of injury was an independent construction contractor. Among the circumstances, it was testified by appellant's witnesses that appellee took orders from, made reports to, and was paid by certain agents, claimed by appellant to be agents of the contractor, and claimed by appellee to be agents of the appellant railroad company. The testimony that these agents represented both the contractor and the railroad company was relevant because it tended to explain why appellant, if a servant of the railroad company, received orders from agents of the two masters. [23] The forty-second assignment is overruled because the bill of exception states no reason for the objection to the argument. It is apparent from the bill of exception that the argument was entirely within the record and proper; hence this court, like appellant's counsel, is unable to supply the omitted reason, even if the rules permitted us to do so. The forty-third assignment urges that there is no evidence to support the verdict of the jury, and the forty-fourth urges that the verdict for $30,000 is excessivé. There is ample evidence to support both findings of the jury. The evidence of liability has been sufficiently indicated hereinbefore. The injury suffered was the loss of both legs, as well as painful and permanent impairment of the heart, kidneys, eye, head, and abdomen. Appellee was 45 years old when injured, and had an earning capacity of about $125 a month, from his ability as a railroad conductor, which business he had evidently performed with efficiency, and which business his in [22] The twenty-eighth assignment is overruled because the business relationship between the contractor and the appellant was introduced in evidence by the appellant, and juries completely unfit appellee from ever it was proper for appellee to develop the details of that relationship, especially on cross examination. The 29th, 30th, 31st, 32d, 33d, 34th, 35th, 36th, 37th, 38th, 39th, 40th, and 41st assignments all complain of the action of the court in overruling objections to the admission of testimony. The objections were that the testimony sought was irrelevant and prejudicial. We have examined each bill of exception supporting each assignment with care, and find in every instance that the testimony was so clearly relevant and admissible that the objections do not seem to merit extended comment upon each separate assignment. again undertaking. Both the forty-third and forty-fourth assignments are overruled. [24] By the eighth assignment it is claimed that the following question assumes as true a disputed fact: "Was it negligence on the part of defendant railroad company to have and permit said brake wheel and its attachments to be in such insecure and defective condition?" As stated in the case of S. A. & A. P. Ry. Co. v. Sutherland, 199 S. W. 521: "If the issues (issue) stood alone, they would be subject to the construction contended for, but the charge must be considered as a whole." The issues submitted, preceding the question here complained of, To defend against liability for negligence asked whether appellee was in the employ of which inflicted indescribable suffering and the railroad company when injured; whethphysical ruin upon the appellee, the appellant er box car No. 173 was being moved in the proved that one man, J. E. Franklin, had a operation of the railroad by appellee when double entity, one as contractor for building he was injured; whether box car 173 was a railroad, the other as president of a com- the property of the railroad company at that pany which operated the railroad. Appellant time; and whether the brake wheel and atendeavored to prove that appellee was em-tachments on said box car No. 173 were ployed to perform the duties of railroad con- insecurely fastened and in a defective con tion that the issue objected to in this as; signment was submitted. There is not the slightest probability that the jury was led by the form of the question to think that the court assumed that box car No. 173 was the property of appellant or that the appellee was in the employ of the railroad com pany. There is no reversible error presented by the 8th assignment. The case cited (Cunningham v. Ry., 51 Tex. 503, 32 Am. Rep. 632), sheds no light on the subject. That case simply repeats the well-established doctrine that a railroad company would not be liable for the negligence of an independent contractor over whose operations the rail-rible having had to undergo all these different road company had no control. It was no doubt in accordance with the doctrine announced in the Cunningham Case that appellant endeavored to defend in the instant case. Had the evidence satisfied the jury that appellee was injured while working for the contractor, by the negligence of the contractor, and that the appellant had no control over the work, the defense would have been established; but the jury, upon evidence of probative force, found facts to the contrary. The assignment is overruled. On Motion for Rehearing. [25] It is earnestly insisted in appellant's motion for rehearing that the judgment for $30,000 is excessive. We agree with appellant that it is an enormous sum. But when we consider the undisputed evidence of the suffering and injuries, and after carefully reviewing the record, which reveals no improper testimony, no erroneous instruction, and no improper argument, we are unable to say that the amount of the judgment was the result of prejudice or pas. sion, or that it is not sustained by the evidence or precedent. The correctness of this conclusion is made clear by the following quotation from appellee's brief: "G. R. Dawson testified: On knocking me down, it threw this left leg across the rail, taking it off above the shoe top (indicating left leg). I caught hold around this axle this way (illustrating), but couldn't hold on to it, kept turning my hands loose. Then the wheel caught me here on the opposite side (indicating forehead of left side). At that time I threw myself around, and the dead lever caught me here in the left breast, crushing me and rolling me in about an eight-inch space, probably a little more, but not much; threw me over-it threw this leg in between the wheels (indicating right leg below the knee) and wheel ran over it there (indicating the place on right leg). When they got the train stopped, I had made one com plete turn, and the dead lever was just hanging or 4. Before this accident my hearing was good. Now it that point; the discoloration is bluish in color, is no good-it is impaired; my hearing is noth- and to repair a broken bone at that particular ing like I had. My eyesight was good; I have point would be a very difficult matter. It might to use glasses now to read and write. When possibly result in amputation if he had a rethis accident happened, I was forty-five years breaking at that point. There is quite a large of age. When I use glasses, I can read about cavity in that leg where this bone has been an hour, and the effect it is blurs on my read taken out; I didn't measure it, but quite a ing and the lines run together. My strength cavity-about so long, I suppose (indicating). now, compared to what it used to be, is poor. It is in a kind of convex form, scooped out, Before this accident I claimed to be an A No. you might call it-a cavity. The leg is deform1 man, physically strong and healthy. My ed there. The amount of weight he could put heart affects me when I get out and move on that leg with safety I couldn't say, as I rearound. If I take a little walk-a long walk- marked a while ago, but I think, with the little it goes to thumping on me and gets me all out bone left there, any undue exertion, any misstep, of breath; and then if I overexert myself dur- anything of that kind, might break that bone at ing the day, then I have pains at night there that particular place, because there is where also, from that lung there, which is causing me it is weak, and if he did, if he couldn't get untrouble. After I was taken to the hospital, I ion, there would be nothing left for him except lay flat on my back fourteen months and a amputation. This overworking of the heart and half. I was in the hospital altogether seventeen rapid beating, if it keeps up, will in time lead months. They perforined four operations on to organic trouble-that will in time lead to my legs. They performed one operation on the heart trouble. With reference to the evidence left leg, that is when they cut it off, and per- of pain, suffering on the right side here about formed three operations on the other leg. Q. the groin-just what that is I have never been What did they do in those three operations? able to make out definitely; I must say I don't A. They cut out the bone in the first operation, know; but every time I have seen him he has the first time; and dressed the leg up and took complained of pain on the right side, and every out the bone. Q. That was the right leg? A. time that I have seen him he has had difficulty Yes, sir; that was the right leg. And then in breathing, and also I have noticed the heart's along about the 6th of March I went under the action, the rapidity of it. These conditions are other operation; that was the right leg, and independent, of course, of his amputated limb they taken out a great big piece of the shin and the condition that I found in the other limb bone in here, (indicating). Q. Well, was there as I have described it. Independent of the any suffering about that? A. Oh, yes; suf- two bad legs, I would not regard him as able fering. Heavens! I couldn't tell it; it is be- to do manual labor as long as his heart is in the yond my expression. The third operation was condition it is in now. If he had two perfectin July following, when they had to cut off ly, good legs, and a heart running 120 to the some more bone up in here (indicating right minute, continuously, that itself would incaleg), that was diseased. I was a long time get-pacitate him for manual labor. Where the heart ting over that operation; the anaesthetic I took beats that fast it deteriorates the strength of a in that operation hurt my lungs a good deal at man, because the more rapid his heart beats that time. I was a long time getting over that. the more rapid he breathes; breathes more rapQ. Now, will you please show the jury the idly." condition of those legs? A. Yes, sir; I guess I will have to take off my clothes, won't I? Q. Yes, sir, so they can see just let them see both legs. (Witness removes his clothing about his legs and the jury examined both legs.) haven't got any use of that foot at all (indicating right foot). This is the first time that front has healed up in over three years (indicating on right leg); just a little pus comes out of the back part yet. Q. Is there any there now? A. Yes, sir; a little (wiping leg). That wound goes entirely through the leg; there was a drainage tube went through there from here to here (indicating)-went entirely through my leg. I Two of defendant's surgeons had been constantly treating the plaintiff since his injuries and they were not called upon to testify. If it is possible to inflict injuries upon a human being that damage him to the extent of $30,000, the verdict cannot be held excessive. One leg is gone; the other is in a condition which, had the court seen the leg, it would agree with us, is worse than amputation. The car wheel went over the right leg and crushed it so badly that saving it "Doctor Berrey testified: As to what I find from amputation was miraculous. Three his condition to be-well, he has had an amputation of the left leg. He evidently had a frac- severe operations were required, and the bone ture of the right leg about here (indicat- taken out to such an extent that any misstep ing), probably a little below the middle of the may cause the breaking of the limb. More third bone, and I judge from the condition of than three years after the injury the wounds the leg that there must have been quite an amount of bone removed. It is still unhealed are still exuding pus, and the leg is deformed, yet; it is open and still suppurating; still and movement of the foot prevented. The having a secretion of pus there, and I find at testimony shows that the plaintiff's mind has present to-day he has a pulse rate of 120 to the been impaired, his chest and body mashed minute, and that his breathing is too fast. The normal pulse rate is about 60 to 80. He suf- and crushed, his back weakened and full fers pain in the right side just above the groin, of pain. His internal organs refuse their just about here (indicating). Those were about the conditions. The left leg is amputated about proper functions, and the agony that he has six inches below the knee, as well as I recollect suffered and is suffering and must always -that is about the place of amputation. I suffer is beyond description. The plaintiff have examined the other leg from which the was comparatively a young man and had a bone has been removed, and as to the danger of large earning capacity. Fifteen years of his its breaking and giving way with that amount capacity would have of bone taken out, I will say that he has got ordinary earning a large amount of bone out, and any sudden amounted to the verdict given, to say nothjar, any misstep, anything of that kind, with ing of the exquisite agony that he must such a small amount of bone there, is liable to fracture it in that locality, and if it did, it would always endure. The plaintiff is in a worse |
