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Mintie Robbins, claimed that this scar was the result of an injury received by him in the wreck referred to. This is entirely erroneous. Mintie Robbins, on the contrary, testified particularly with reference to this scar that it was the result of a stab wound inflicted by one Elisha Lewis, her cousin, several years before this accident and injury. None of the testimony for appellee indicates that this wound was produced by, or at the time of, the accident referred to, and the testimony of Dr. Trask which was stricken out by the court was utterly immaterial. The record, in fact, leaves us at a loss to understand why appellee's counsel objected to it. The statement is made in appellants' brief that appellee stated to Dr. Trask that this scar "and enlargement in the region of the spine" had resulted from a stabbing in a personal difficulty. The words quoted are an enlargement upon the testimony of the witness not justified by the record. The assignment is overruled.

present substantially the same question. The | mony, it is contended that appellee by his court admitted, over the objection of appel- pleadings and by the evidence of his wife, lants, the testimony of certain witnesses that upon certain occasions appellee Robbins complained of pain in his back and head. As we understand the testimony, it was that the complaints were of present pain and suffering, and not, as the objection states, a statement of past suffering. These complaints were made some time after the injury. The real idea intended to be conveyed by the testimony is that what was said by appellee was an expression of present pain and suffering then existing at the time the complaint was made. Such testimony was admissible. Railway Co. v. Barron, 78 Tex. 421, 14 S. W. 698; Wheeler v. Railway Co., 91 Tex. 356, 43 S. W. 876. The further objection was made that appellee was at the time insane. We do not think that this rendered these voluntary exclamations or expressions of present suffering inadmissible, especially in view of the testimony of the witnesses who testified as to appellee's insanity while in the asylum that he talked very intelligently, except upon one subject, that he imagined he had been resurrected at the time of the accident, as stated by one medical witness who examined appellee at the instance of appellants, otherwise he talked entirely rationally. We think expressions of present pain by such a person would fall under the general rule stated by the authorities cited. [4] What we have said is sufficient to dis-osition and brief that the testimony was pose also of the fifth assignment of error, presenting objections to certain testimony. The additional objection to such testimony set out in the second proposition under this assignment, that the expressions of pain were made after this suit was brought, was not made to the testimony as set out in the assignment, and cannot be considered. The proposition is supported by a dictum in Railway Co. v. Kuehn, 2 Tex. Civ. App. 210, 21 S. W. 58, the soundness of which we doubt as applicable to this testimony. Jackson v. M., K. & T. Ry. Co., 23 Tex. Civ. App. 319, 55 S. W. 376. But it is not necessary to decide the question, as it is not presented by the assignment.

[6] There was no error in sustaining the objection of appellee to the testimony sought to be elicited from the witness Moye, as set out in the seventh assignment of error, that the employés of appellant told him after the wreck that they had orders not to ride on the logging cars. The objection that the testimony was hearsay was properly sustained. The contention stated in the prop

admissible on cross-examination by way of impeachment or to test and analyze the testimony of the witness is not embraced in the assignment, but could not be sustained if it had been.

[7] There was no error in striking out the answer of the witness Saxon, speaking with reference to the insanity of appellee before the accident and injury in question, that "everybody talked about it more or less." The witness was testifying to his own opinion acquired while appellee worked at a sawmill at Bedford, and referred by "everybody" to the persons working at said mill. The testimony was objected to as hearsay. It seems to be settled by the authorities that [5] Dr. Harlan Trask examined appellee general reputation is inadmissible to establish while in the asylum at Austin at the re- insanity. 2 Wigmore, § 1621; Ellis v. State, quest of appellants. Testifying about the re- 33 Tex. Cr. R. 86, 24 S. W. 894; 7 Encyc. Ev. sult of this examination, he said that he 477. None of these persons comprising “evfound a scar on his back on or near his erybody" at this mill, unless experts in such shoulder blade which was made by a cut with matters as insanity, would have been ala sharp instrument. The witness further lowed to give his opinion as to appellee's intestified that appellee stated to him that sanity, except in connection with a statethis scar was produced by a stab inflicted up- ment of the facts and circumstances upon on him "in a racket" three or four years be- which such opinion was based. Brown v. fore. Upon objection by appellee's counsel Mitchell, 88 Tex. 363, 31 S. W. 621, 36 L. R. that this latter statement was made while A. 64. This testimony, if admissible, brings he was insane, it was stricken out, to which before the jury the opinion of all these perappellants objected, and the ruling is made sons that appellee was at the time referred the basis of the sixth assignment of error. to insane without inquiry as to their means

circumstances upon which such opinion is based. We do not think this would be proper.

sometimes, but most of the time on the train. Alexander and Stutts were the engineer and fireman, and I was brakeman." Tom Stutts testified: "I lived at Knox or Soda on July 21, 1909, and was firing a locomotive steam engine for the Knox Lumber Company at that place at that time." This was the day of the wreck.

The evidence does indeed disclose that the Railway Company and the Lumber Company were so closely and intimately connected in ownership and management as to be, so far as the operation of their business was concerned, practically one concern. Still they were distinct individuals, and neither could legally be made liable for the negligent act solely attributable to the other. We may admit that the Lumber Company would not be liable in this case if the train was being operated over the line of the Railway Company, by its own agents and servants, car

By the ninth assignment of error appellants complain of the refusal of the court to give to the jury a special charge requested by them that there was no evidence to authorize a verdict against the Knox Lumber Company, or W. H. and Hiram Knox, and that they should only consider the evidence as to the Livingston Southeastern Railway Company. Under this assignment, the following proposition is stated: "There being no evidence that the railroad at the point of derailment belonged to or was controlled by the Lumber Company, or that those operating the locomotive and cars were the servants of the Lumber Company, performing its immediate service, or that the plaintiff was injured as a result of failure on the part of the Lumber Company to perform any substantive duty to him incident to the relation of mas-rying appellee to or from his work, under ter and servant, no liability was shown on the part of the Lumber Company or W. H. Knox or Hiram Knox, as members of that partnership, and these defendants were entitled to the peremptory instruction." The accident occurred on the line of railway of the defendant Railway Company. The engine and cars also belonged to the Railway Company. The contract between the Railway Company and the Lumber Company required the Railway Company to carry the men to and from their homes to their places of work in the woods over the Railway Company's line to the junction with the tram of the Lumber Company, and thence over the tram to the front. It thus entered into and became a part of appellee's contract of employment that he was thus to be carried to and from his work daily as was being done at the time he was hurt. The train was a logging train purely, and was engaged solely in the business. The train crew consisted of Alexander, the engineer, Pete Bailey, the brakeman, and Tom Stutts, the fireman. Alexander testified: "I was running the engine for the Knox Lumber Company. Yes, sir; I suppose they own the business at Knox or Soda. I ran the mill engine there about two weeks, something like that, and ran the locomotive. It was a logging train. I went under Mr. Winger's order when I was in the woods (Winger was the woods foreman of the Lumber Company), and, when I was at the mill, I went under orders of Mr. Knox. Mr. Winger was on the car at the time of the wreck. Yes, sir; I was in the employment of the Knox Lumber Company. I am working for the Knox Lumber Company now." Pete Bailey testified. "I am working for the Knox Lumber Company as conductor on his train since February 7th last. Before that I was braking on the logging train. I was braking on the logging train in 1909, when Tim Robbins got hurt. Before

the terms of its contract with the Lumber Company. But, whatever the terms of that contract may be, there was evidence, which we have quoted, sufficient, if true, to show that the engine and cars were being operated by the servants of the Lumber Company and under the direction of its woods foreman, one Winger. Every member of the crew, engineer, fireman, and brakeman, so testified. If these men did not mean to so state, if in fact the relationship of the two companies was so close that they might have been mistaken about this, or did not know, some attempt should have been made to have them explain. But the testimony is in the record as quoted, without qualification, and we cannot assume that the witnesses did not mean what they have so clearly stated. If it be true that the train crew were operating the engine and cars as employés of the Lumber Company, which might very well have been the case, considering the character of the service in which they were engaged, then the evidence is sufficient to authorize the' finding that the accident was the proximate result of the combined negligence of the Railway Company in allowing the obstruction to be and remain on the track, and of those engaged in operating the engine and cars in running at a dangerous rate of speed, and in failing to keep a proper lookout to discover the obstruction on the tracks in time to avoid the accident. The train was being operated with the cars in front, and one witness testified that the speed was 30 miles an hour. We think the evidence as to the liability of the Lumber Company was suffi- . cient to raise an issue for the jury, and the court did not err in refusing the requested charge.

Appellant in the tenth assignment complains of the fifth paragraph of the court's charge. This paragraph contains substantially the entire charge of the court upon

The second objection is that the charge was upon the weight of the evidence and assumed conditions and facts not testified to. We have examined the charge carefully, and (if we are required to consider an objection so general) can find nothing to justify this criticism.

ants, and covers two entire pages of appel- | we cannot say that there was no evidence to lants' brief. Six separate propositions are support appellee's contention on this point, stated under the assignment. The assign- and to require the submission of the issue. ment itself states the following grounds of It is of some significance on this issue that objections to the charge: "Said charge is there was evidence that there were between erroneous, in that it assumes that defend- 40 and 50 men to be carried, that outside ants consented to and acquiesced in the act these logging cars no place was provided for of the plaintiff in riding upon the logging them to ride except the engine and tender, cars, because there was not a particle of which also had to carry wood for firing the testimony going to show that the defendants engine, and that these places were not suffiever acquiesced in or consented to the em- cient for that purpose. There was also tesployés riding upon the logging cars; on the timony that the men habitually rode on the contrary, the proof on that point was en- logging cars, especially since the caboose tirely one sided, and showed that the de- had been out of use. fendants oft-times made the employés get off the logging cars; in fact, they did make them get off every time the employés were discovered on the logging cars, and told them it was dangerous to ride on the cars; and the uncontradicted proof shows that the employés operating the train were told by the defendants not to allow any of the employés to ride on the logging cars.' And because said charge was upon the weight of the evidence, and assumed conditions and facts not testified to. And because said charge is argumentative in behalf of the plaintiff, and does not charge the law on issues raised by the pleadings and evidence. | And because said paragraph requires the jury to find for the plaintiff, unless they further found that the plaintiff himself was guilty of contributory negligence in being | upon the train at the place where he had taken his position thereon, or in attempting to jump therefrom, if he did so. Under paragraph 2 of the court's charge, the jury is instructed that, in order for the plaintiff to have been guilty of contributory negligence, he would have had to contribute towards producing the wreck, and without which the wreck would not have happened."

[8] In so far as the propositions seek to enlarge upon these objections and to state other objections not embraced in the assignment of error, they will not be considered. Addressing ourselves then to the several objections to the charge set out above, the charge is not subject to the criticism that it assumes that the defendants consented to or acquiesced in the act of the plaintiff in rid ing upon the logging cars. The language of the charge referred to clearly submits this as an issue to be found by the jury. So the specific objection made must fail. If, however, appellants intended to base their objections upon the ground that there was no evidence to raise this issue, the undisputed evidence negativing such consent or acquiescence, as stated in the proposition, we cannot agree to this conclusion. The evidence is very conflicting upon this issue, and the preponderance of it perhaps shows that the act of riding on the logging cars was against the orders of the Railway Company,

The third objection, that the charge is argumentative, etc., is too general, but appears to us to be groundless.

The fourth objection is groundless. There is nothing in the charge that could afford ground for the criticism, that it requires the jury to find for the plaintiff, unless they find that he was guilty of contributory negligence. The liability of defendants on any ground is clearly submitted as an issue to be determined by the jury. We have examined the paragraph of the charge carefully in view of the objections urged, and can find nothing to support any of them. The assignment and the several propositions thereunder are overruled.

[9] There was no error in instructing the jury, as set out in the twelfth assignment of error, that, if appellee "took up a position more dangerous than some other parts of the train when he was permitted to ride, he should be held to have assumed the risk of the more dangerous position, yet he did not assume thereby any risk of danger resulting from and proximately caused by the negligence of defendants, their agents and serv ants." This was a correct statement of the law.

[10] The court did not err in that portion of the charge in which the jury was instructed with regard to the degree of care required of the Railway Company. If the Railway Company had contracted with the Lumber Company to transport appellee with others on this train for a consideration paid by the Lumber Company, appellee was a passenger, and entitled to the exercise of that degree of care required in the carriage of passengers in the kind of vehicle used. always taking into consideration the character of the conveyance and the obviously greater danger in riding on a logging car than in an ordinary passenger car. This was in substance the principle stated in the

375, 15 S. W. 280, 11 L. R. A. 486, 23 Am. | eral witnesses testified that there was never St. Rep. 345; Railway Co. v. Lauricella, 87 | any indication of insanity prior thereto, and Tex. 277, 28 S. W. 277, 47 Am. St. Rep. there was testimony both that the insanity 103; Railway Co. v. Fenwick, 34 Tex. Civ. | might have resulted entirely from these inApp. 222, 78 S. W. 551.

[11] The charge on the measure of damages, set out in the thirteenth and fourteenth assignments of error, was that the jury "might take into consideration the loss of time, if any, which plaintiff has already suffered, as well as the loss of time, if any, which you may find he will suffer in the future," etc., also that if the jury finds that plaintiff is insane, and that such insanity was proximately caused by his injuries, and the jury should find in his favor, then in estimating his damages the jury should take into consideration the fact of the insanity, so far as it affects his earning power. This was a proper charge under the pleadings and evidence. It is not subject to the objection that it authorized the recovery of double damages. Damages for loss of earning capacity, or of time, produced by insanity would be recoverable in the same way and to the same extent as for such effects produced by a broken leg, or any other injury. It would be an extraordinary conclusion that because appellee was incapacitated from labor while insane he could not recover for such loss of earning power, if the insanity was proximately caused by the injuries for the proximate consequences of which defendants were otherwise liable.

[12] Objection is made by appellee to the consideration of the fifteenth assignment of error on the ground that only a part of the assignment is copied in the brief. This we find to be true, and the objection is well taken. Other exceptions are taken to the assignment on the ground that it presents several distinct grounds of error, that it is too general on the question of the excessiveness of the verdict, and that the statement following the assignment is insufficient. We are inclined to think that all of these exceptions are well taken. As stated, it is difficult to understand what is undertaken to be presented by the assignment. The proposition under the assignments is as follows: "The court having authorized the jury to award damages on account of plaintiff's alleged insanity, without evidence to justify a finding that such insanity was a proximate result of the alleged derailment and injury, and having authorized double damages therefor, and the verdict in the sum of $7,500, being general in form, will be presumed to embrace allowance of the items so improperly authorized by the charge on the ground of insanity."

juries, and also that, if appellee was predisposed to insanity, these injuries might have brought on the insane condition. The charge of the court, as we have seen, did not authorize the recovery of double damages.

There is no merit in the sixteenth assignment of error. The court submitted to the jury the issue of contributory negligence on the part of appellee either "in being upon said train at the place where he had taken his position thereon, or in attempting to jump therefrom," and the charge precluded recovery if the jury found that he was guilty of contributory negligence in either particular. We doubt if any enlargement or elaboration of these points would have been of material assistance to the jury.

[14] The seventeenth, eighteenth, and nineteenth assignments of error cannot be considered. The only statement under either is, "See statement under fifteenth assignment of error." Referring to the statement under the fifteenth assignment of error, we find that it refers to a question in no way relating to the questions presented by either of these assignments. These assignments relate to the issues of contributory negligence and to the refusal of special charges on that issue. The statement under the fifteenth assignment refers solely to the issue of insanity as proximately caused by the injuries and the evidence relied upon to support appellants' contention on this issue.

[15] Appellants requested the court to charge the jury, in substance, that if the train was provided with a tender upon which appellee could have ridden with reasonable safety, and it was sufficiently commodious to accommodate him and the other hands, and that appellee voluntarily placed himself upon one of the logging cars, and that this position was more dangerous and he would not have been injured if he had been on the tender, he could not recover. This was, in effect, an instruction that the act of appellee in thus taking position on the logging cars in the circumstances stated was contributory negligence precluding recovery as matter of law. There was no error in refusing the charge. It was an issue for the jury whether in the circumstances stated in the requested charge appellee acted as a person of ordinary prudence would have acted, taking into consideration all of the circumstances disclosed by the record. Bonner v. Glenn, 79 Tex. 531, 15 S. W. 572; Railway Co. v. Welch, 24 S. W. 854.

[13] What we have said is sufficient to dispose of the questions presented. The evi- We have examined each of the assignments dence was sufficient to support the finding (except the seventeenth, eighteenth, and ninethat the insanity was the proximate result teenth, which for the reasons stated cannot

thereunder, and our conclusion is that none | 7. APPEAL AND Error (§ 1064*)—Reversible of them presents sufficient grounds for reERROR. versing the judgment, and it is therefore affirmed.

Affirmed.

WALKER et al. v. METROPOLITAN ST. RY. CO.

(Court of Civil Appeals of Texas. Dallas. Dec. 14, 1912.)

1. APPEAL AND ERROR (§ 253*)-RECORDQUESTIONS PRESENTED FOR REVIEW.

Where the record fails to show any exception to plaintiff's petition, the question of the propriety of sustaining an exception thereto cannot be considered on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1485, 1488, 1491-1493; Dec. Dig. § 253.*]

2. APPEAL AND ERROR (§ 548*)-BILL OF EXCEPTIONS-NECESSITY.

Where there is no bill of exceptions show: ing that testimony mentioned in an assignment of error was excluded, the court's action cannot be reviewed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]

3. CARRIERS (§ 295*)-PASSENGERS-NEGLIGENCE VIOLATION OF MUNICIPAL ORDI

NANCE.

Municipal ordinances fixing the rate of speed at which street cars may be operated are for the benefit of persons lawfully crossing the track and not for passengers, and a

violation of such ordinances does not raise an imputation of negligence per se in favor of an injured passenger.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1191-1197, 1199, 1213-1215, 1219, 1220; Dec. Dig. § 295.*]

4. TRIAL (8 251*)-INSTRUCTIONS APPLICABILITY TO PLEADINGS.

A requested instruction, which authorizes a recovery for negligence not counted on in the petition, is properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 587-595; Dec. Dig. § 251.*]

5. APPEAL AND ERROR (8 750*)-ASSIGNMENT OF ERROR-NECESSITY AND SCOPE.

Where it is contended that plaintiff's request for an improper instruction was sufficient to direct the court's attention to the failure of the general charge to submit the issue desired, and that it should have prepared and given a correct charge on the subject, that complaint must be raised and presented by separate assignment of error, and, if only incidentally presented in the assignment complaining of the refusal of the request, it cannot be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.*]

6. APPEAL ANd Error (§ 719*)—ASSIGNMENTS OF ERROR-NECESSITY. Under rule 24 for the Courts of Civil Appeals (142 S. W. xii), providing that the assignment of error must distinctly specify the grounds, and be distinctly set forth in the motion for new trial, objections to an instruction on the degree of care due from defendant carrier to plaintiff cannot be reviewed, where not raised in the motion for new trial; such error not being fundamental.

¡Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. & 719.*]

injuries suffered by plaintiff, a passenger, an In an action against a street railway for instruction that it was the duty of defendant and its servants, engaged in the operation of a car on which plaintiff was passenger, to exercise that high degree of care that would have been usually exercised by very cautious, competent, and prudent persons under similar circumstances, while erroneous in the use of the word "usually," does not constitute reversible

error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4219, 4221-4224; Dec. Dig. § 1064.*]

8. TRIAL (§ 194*)-INSTRUCTIONS-WEIGHT OF TESTIMONY.

Where the answer pleaded three issues of contributory negligence on the part of plaintiff passenger, and these issues were substantiated by testimony, separate charges thereon were not on the weight of the evidence because giving undue prominence to the issue of contributory negligence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Minnie Walker and others against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Dwight Lewelling and Wilson, Williamson & Simmons, all of Dallas, for appellants. Baker, Botts, Parker & Garwood, of Houston, and Spence, Knight, Baker & Harris, of Dallas, for appellee.

TALBOT, J. This suit was brought to recover damages alleged to have been sustained on account of personal injuries charg ed to have been inflicted upon appellant, Mrs. Minnie Walker, through the negligence of appellee in causing her to be thrown from one of its cars. The petition alleges, in substance, that plaintiff, Mrs. Minnie Walker, was a passenger on one of defendant's "North Belt" cars in the city of Dallas, and desired to alight at Haskell avenue; that she signaled the conductor in charge of the car to stop the car at Haskell avenue, but the signal was disregarded; that the next street after passing Haskell avenue was Peak street, into which the street railway tracks entered and turned north, making a sharp curve; that in approaching this curve the car upon which plaintiff was riding was being negligently operated and run at a dangerous rate of speed, to wit, at about 30 miles per hour, and struck the curve at Peak street with great force, by reason of which negligence plaintiff was thrown from the car to the ground and seriously injured. The petition further alleges, as a ground of negligence on the part of defendant, that the rate of speed at which the car was being operated was in violation of a city ordinance of the city of Dallas, making it unlawful to “drive or move a street car" at a greater rate of

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