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facts pleaded and supported by testimony , railroad, or in work incidental to such opera-
there is no evidence of probative force to The foregoing reasons also require us to prove liability against the appellant. If overrule the ninth and tenth assignments of there was any evidence, as defined by the error, which contend that the court should Supreme Court in the case of Joske v. Irhave affirmatively submitted the groups of vine, 91 Tex. 574, 44 S. W. 1059, that appelfacts pleaded and testified to by appellant. lee was an employé of appellant at the time
 The fifth assignment is that the court of his injury, and was at that time per-
troduced bore upon the question of who was  The seventh assignment charges that it appellee's master at the time. Appellee teswas error to ask the jury whether box cartified that he made a written application for No. 173 belonged to the appellant at the employment by the railroad company; that time of the injury. The proposition is that the blank form of the application was furthe question is one of law, not of fact. The nished him by the superintendent of the apquestion submitted a fact, not law, in the pellant railroad company; that this applicameaning of the statute, art. 1985. The sev- tion was filled out by himself and delivered enth assignment is overruled.
to the agent of the railroad company; and  The eighteenth assignment complains that the application was granted by the of error because the court refused to give railroad company. He further testified that special issue No. 14, requested by appellant. by virtue of that application he was put to Issue No. 14, which was refused, instructed work by the railroad company as conductor ; the jury to find whether box car No. 173 be- that as such conductor he was at the time of longed to the contractor Franklin at the the injury engaged in making up a train for time of the injury. The fact of ownership the purpose of hauling passengers and of that car was submitted in a form selected freight according to schedule of the railroad by the court, and it was not error to refuse company. The application itself is addressto submit the issue in the form desired by ed to the railroad company, and its terms appellant. As in the fourth assignment, ap- bind appellee to perform certain duties for pellant claims the right of an affirmative the railroad company, and bind appellee to submission of groups of facts pleaded by it, certain waivers of appellee's rights in favor eren when the case is tried by special issues. of the railroad company. The agent of the This has been determined against appellant's railroad company accepted that application contention in our discussion of the fourth and indorsed on it his acceptance by writing assignment.
on it the date from which appellant became  Under the sixth assignment we are call- an employé of the railroad company. The ed upon to determine an elemental question agent was named Whitfield, and the fact of of syntax. The objection directed against acceptance was testified to by Mr. Rieck, the question submitted is that it submits superintendent of the railroad company. two issues in one, requiring two answers. The ratification of some of the terms of the The question is: "At the time the plaintiff contract was further shown by the fact that claims to have been injured, on November 29, appellant submitted himself when injured 1913, was box car No. 173 being moved by to the railroad company's surgeons as the the defendant, San Antonio, Uvalde & Gulf application provided, and he was treated Railroad Company, in the operation of its | by them in the railroad company's hospital. 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 appel-  No undisputed facts should be submit. lant was engaged in the service of hauling ted in special issues. Vernon's Sayles' Rev. passengers and freight over the railroad Civ. St. § 1985. The fourteenth assignment from any point to Mathis, that service was is overruled. for the railroad company. Appellee testified For the same reasons given in disposing of that when injured he was making up a train the fourteenth assignment, the fifteenth is to transport passengers and freight from the also overruled, and likewise the sixteenth. Nueces river to Mathis. The foregoing testi-  The nineteenth assignment complains mony alone is sufficient evidence of probative of the refusal to submit a requested special force to sustain the finding of the jury that issue. The issue requested required the appellee at the time of the injury was an finding of the evidence by which the fact of employé of the appellant railroad company, employment was to be determined and not the and was engaged in the performance of the fact of employment. Such questions are exduties required of him by his employer, the pressly forbidden by article 1985, Vernon's appellant company. There was sufficient evi. Sayles' Rev. Civ. St. The nineteenth assigndence of negligence that proximately caused ment is overruled. the injury.
For the same reasons the twentieth assign There was much direct and circum- ment is overruled. The question presented in stantial testimony to prove that appellee was this assignment is, who gave appellee instrucin the service of an independent contractor tions to do the work at which he was injured ? who was constructing the railroad; but the The fact to be established is, Was appellee in jury determined the issue in favor of ap- the employ of appellant when injured ? The pellee, which determination binds us. The refused question, it is apparent, required a eleventh assignment is overruled.
finding of evidence that tends to prove the  The twelfth assignment is overruled. fact of appellee's employment by appellant. The court pror ly refused to instruct the Then ag 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 The reasons above mentioned also require refused it:
us to overrule the twenty-first assignment. "You are instructed that the making of an The twenty-third assignment is overruled application for employment by the plaintiff, and because the issue requested was given by the the agreement proven as to plaintiff's seniority on the railroad company's list of conductors, court in special issue No. 6 in language that does not constitute an employment by the rail- more nearly conformed to the issue of fact road company."
made by the pleadings and evidence. The instruction requested is not in ex-  The twenty-fourth assignment is over. planation of any legal terms used in the is- ruled because the bill of exception does not sues given. Vernon's Sayles' Rev. Civ. St. show what answer the witness would have 1981a.
made if the objection had not been sustained  The thirteenth assignment is over to the question. Shoe Co. v. Ferrell, 68 Tex. ruled for the reason that the instruction re-638, 5 S. W. 490; Moss v. Cameron, 66 Tex. quested and refused was misleading and was 412, 1 S. W. 177; Dunham v. Forbes, 25 Tex. not explanatory of any of the special issues 25. given to the jury. The jury were not asked  The twenty-fifth assignment urges whether appellant was an employer nor that the court erred in overruling appellant's whether appellee was an employé. The sec- request to exclude certain testimony, objectond issue given was whether appellee was ed to when offered. The objectionable quesin the employ of the appellant. The court tions and answers are: was not requested to define the meaning of "Q. Whom were you collecting that money the word "employ,” as used in that second for? A. San Antonio, Uvalde & Gulf Railroad issue given, and the definition requested of Company. Q. Whom were you collecting tickets
for? A. San Antonio, Uvalde & Gulf Railroad the words "employer" and "employé," even if
Company." correct, would not have been pertinent to the second issue.
The objection made is that the answers are  The fourteenth assignment is that the merely conclusions of the witness. The objeccourt erred in refusing to charge to the effect tion is not tenable. The answers state facts. that J. E. Franklin was an independent con
The twenty-fifth assignment is overruled. tractor and that the railroad company would
 The twenty-sixth assignment is over. not be liable for his negligent acts. The rea- ruled because the bill of exception does not son assigned in the bill of exception why this show any order of the court complained of. was error is that the proof shows without After questions and answers covering the incontradiction that Franklin was such contrac- terest of J. E. Franklin in the railroad comtor, and that it necessarily follows that the pany were in evidence, appellant's counsel railroad company would not be liable. The asked that it be excluded. The bill of excharge requested is not an explanation or ception 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 fitted 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 contrac The twenty-seventh assignment is tor; and by the constantly changing use of overruled. It was not error to permit the the roadway and rolling stock, first by the appellant's witness, who was president of the president, then by the contractor. That this appellant company, to testify on cross-exam-character of testimony by the appellant made ination that two of the important officials of relevant the further details of these varying the appellant company also held official po- transactions between the president and the sitions with J. E. Franklin, the construction contractor is plain. All assignments from the contractor. Appellee alleged and endeavored twenty-ninth to the forty-first, inclusive, are ro prove that the relation of master and serv- overruled. ant existed between himself and the railroad  The forty-second assignment is overcompany at the time of the injury. Appel- ruled because the bill of exception states no jant, by pleading and testimony, endeavored reason for the objection to the argument. It to refute this, and to that end endeavored to is apparent from the bill of exception that prove by circumstances, as well as direct evi- the argument was entirely within the record dence, that appellee's master at the time of and proper; hence this court, like appellant's injury was an independent construction con- counsel, is unable to supply the omitted reatractor, Among the circumstances, it was son, even if the rules permitted us to do so. testified by appellant's witnesses that appel The forty-third assignment urges that there lee took orders from, made reports to, and is no evidence to support the verdict of the was paid by certain agents, claimed by ap- jury, and the forty-fourth urges that the verpellant to be agents of the contractor, and dict for $30,000 is excessive. There is ample claimed by appellee to be agents of the ap- evidence to support both findings of the jury. pellant railroad company. The testimony The evidence of liability has been sufficiently that these agents represented both the con- indicated hereinbefore. The injury suffered tractor and the railroad company was rele- was the loss of both legs, as well as painful vant because it tended to explain why appel- and permanent impairment of the heart, lant, if a servant of the railroad company, kidneys, eye, head, and abdomen. Appellee received orders from agents of the two mas was 45 years old when injured, and had an ters.
earning capacity of about $125 a month,  The twenty-eighth assignment is over- from his ability as a railroad conductor, ruled because the business relationship be- which business he had evidently performed tween the contractor and the appellant was with efficiency, and which business his inintroduced in evidence by the appellant, and juries completely unfit appellee from ever it was proper for appellee to develop the again undertaking. Both the forty-third details of that relationship, especially on and forty-fourth assignments are overruled. cross examination.
 By the eighth assignment it is claimThe 29th, 30th, 31st, 32, 33, 34th, 35th, ed that the following question assumes as 36th, 37th, 38th, 39th, 40th, and 41st assign- true a disputed fact: “Was it negligence ments all complain of the action of the court on the part of defendant railroad company in overruling objections to the admission of to have and permit said brake wheel and testimony. The objections were that the tes- its attachments to be in such insecure and timony sought was irrelevant and prejudicial. defective condition ?" As stated in the case We have examined each bill of exception sup- of S. A. & A. P. Ry, Co. v. Sutherland, 199 porting each assignment with care, and find S. W. 521: “If the issues (issue) stood alone, in every instance that the testimony was so they would be subject to the construction clearly relevant and admissible that the ob- contended for, but the charge must be conjections do not seem to merit extended com- sidered as a whole.” The issues submitted, ment upon each separate assignment. 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 conductor, one minute for the contractor, and the dition, Then it was after this last ques
tion that the issue objected to in this as; plete turn, and the dead lever was just hanging signment was submitted. There is not the onto me here, across the hip (indicating), from slightest probability that the jury was led pulled me out from under the car more dead
the railing from here to here indicating). They by the form of the question to think that than alive. There were two large cuts on niy the court assumed that box car No. 173 was right arm here indicating), this breast (left) the property of appellant or that the appel was caved in, and I spit blood and had severe
coughing spells for at least five weeks while in lee was in the employ of the railroad com- the hospital. I was black and blue and couldn't pany.
raise an empty teaspoon in that time; I had to There is no reversible error presented by be fed. I lay fourteen months and one-half, the 8th assignment. The case cited (Cun- ing an inch 'one way or the other, sleeping with
more or less, flat upon my back, and never turnningham V. Ry., 51 Tex. 503, 32 Am. Rep. the right leg in a fracture box, not even a cast 632), sheds no light on the subject. That to hold it, and during that time I suffered pain case simply repeats the well-established doc- that I couldn't tell you; I couldn't begin to
describe it. The first three months of my life trine that a railroad company would not be in that hospital was the awfullest thing, gentle liable for the negligence of an independent men, that you ever saw; it was something hor contractor over whose operations the rail- rible—having had to undergo all these different road company had no control. It was no
operations, having never recovered from it, and
I never will. I can't do anything to-day in the doubt in accordance with the doctrine an- way of labor. I am able to sit down and do nounced in the Cunningham Case that ap- the work, but my head isn't right yet, and the pellant endeavored to defend in the instant pain I suffer day in and day out is enough to
drive nine men out of ten crazy. I am sufferHad the evidence satisfied the jury ing all the time with my abdomen and that side that appellee was injured while working for where I was crushed; it is beyond description the contractor, by the negligence of the con- for me to try to tell you, but I have tried to tractor, and that the appellant had no con- side of 'life and carry through with everything,
bear it; I have tried to look upon the bright trol over the work, the defense would have but it will carry that way with me until I am been established; but the jury, upon evidence in my grave; I know it. I had been a railof probative force, found facts to the con- familiar with the average earnings of conduc
road conductor since 1897. I know and am trary. The assignment is overruled. tors working on roads in and out of San AnThe twenty-second assignment complains tonio-freight conductors on the I. & G. N.,
Their of the refusal of two special issues requested Southern Pacific, Sap, and other roads.
average earnings will run from $150 to $200 by appellant. The precise issue of fact re
a month, according to the class of service you quested was submitted to the jury in lan- are in, greatly. I claimed to be an expert con. guage, selected by the court, differing but ductor. Before I was injured, at the time I had little from that used by appellant's requested or about $115 a month on this job—this work.
this particular job, I was earning about $110 issue. The difference was not material. This road did not pay the standard wages to conThe twenty-second assignment is overruled. ductors. Previous to this injury I had run a The judgment is affirmed.
train in Mexico for a number of years, and my earnings there would average about $170 gold
a month, United States currency. Since I have On Motion for Rehearing.
been injured, about the only thing I could do  It is earnestly insisted in appellant's helping out.
was sitting around the I. & G. N. Hotel office and
I suffer pain now from my heart, motion for rehearing that the judgment for my backbone, my kidneys, and the entire right $30,000 is excessive. We agree with ap- side of my abdomen, and my heart hurts. My pellant that it is an enormous sum. But
right leg is always suffering too-the stump;
the same as my left leg, troubles me a good when we consider the undisputed evidence deal; it bothers me on account of the nerves. of the suffering and injuries, and after care- I don't sleep well. I go to bed at 9:00 or 10:00 fully reviewing the record, which reveals
o'clock. I am awake every morning at 3:30 no improper testimony, no erroneous in- and it wakes me. Then I begin to twist around;
or 4. I wake up with a kind of nervous shock, struction, and no improper argument, we I don't get much rest. I have to get up to are unable to say that the amount of the urinate two or three times a night on an averjudgment was the result of prejudice or pas. and my urine burns my urethra and bladder.
age, and I have pain with it; my kidneys hurt sion, or that it is not sustained by the evi- My left side over my heart was mashed; the dence or precedent. The correctness of this condition I found was, when I took a long conclusion is made clear by the following breath my chest was crushed in. I spit blood,
as near as I can remember, about five weeks. As quotation from appellee's brief:
I stated, there were cuts and bruises over my "G. R. Dawson testified: On knocking me body and limbs. In the first place, these were down, it threw this left leg across the rail, tak- all skin abrasions through here (indicating), ing it off above the shoe top (indicating left leg). what I say indicating side of the head and I caught hold around this axle this way (illus- front of the ears), and this side was all skinned, trating), but couldn't hold on to it, kept turning and abrasions on my right arm between my elmy hands loose. Then the wheel caught me bow and wrist, two long cuts paralleling
each here on the opposite side (indicating forehead other. My left chest was crushed in on my lung, of left side). At that time I threw myself my ribs about the right side were all crushed around, and the dead lever caught me here in and bruised, and my right hip seemed torn loose the left breast, crushing me and rolling me in almost; it was torn loose from the bone in, the about an eight-inch space, probably a little way it felt, it hurt so. My back was all sore. more, but not much; threw me over-it threw I suffered with it, and I suffer now with my this leg in between the
wheels (indicating right back, with pains of the muscles all along each leg below the knee) and wheel ran over it there side and joints in the vertebræ, and through the (indicating the place on right leg). When they small of the back here (indicating). It is sore, got the train stopped, I had made one com. always has been; never got over it. 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 moye on that leg with safety I couldn't say, as I rearound. If I take a little walk-a long walk-i 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 beart and half. I was in the hospital altogether seventeen rapid beating, if it keeps up, will in time lead months. They performed 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 anesthetic 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? Two of defendant's surgeons had been conQ. Yes, sir, so they can see just let them see stantly treating the plaintiff since his injuboth legs. (Witness removes his clothing about his legs and the jury examined both legs.) Iries and they were not called upon to testify. haven't got any use of that foot at all (indicat. If it is possible to inflict injuries upon a huing right foot). This is the first time that man being that damage him to the extent front has healed up in over three years (in- of $30,000, the verdict cannot be held exdicating on right leg); just a little pus comes cessive. One leg is gone; the other is in a out of the back part yet. Q. Is there any there now? A. Yes, sir; a little (wiping leg). condition which, had the court seen the leg, That wound goes entirely through the leg; it would agree with us, is worse than amputhere was a drainage tube went through there from here to here (indicating)-went entirely tation. The car wheel went over the right through my leg.
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 today he has a pulse rate of 1.20 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 of bone taken out, I will say that he has got
ordinary earning capacity would have 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 be a very serious matter. The leg is bad at condition than a man who has lost two legs