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the jury. Did not the jury find that the al-, of the plaintiff. The decisions cited refer legations and evidence of appellee were false to some isolated fact or circumstance, and and that the testimony of Black should be not to a theory of recovery fixed by allega. credited ? Is the court invading the sacred tion and proof. Railway v. Von Hoesen, 91 province of the jury in holding that appellee S. W. 604; Railway v. Murray, 99 S. W. 114. is bound by his admissions in both allega In the case of Connor y. Uvalde Bank, tion and proof? That is the attitude in 156 S. W. 1092, the rule on the subject, as which appellee is placed by his intemperate laid down by the courts of Missouri, is copied motion for rehearing, in which the court is as follows: informed that it “arbitrarily set aside the "If it is a mere construction of phrases or findings of the jury on this very issue and expressions used by the witness in detailing his substituted its own conclusions of fact for testimony as to whether the statements are
favorable or unfavorable to his side of the case, the conclusions found by the jury.”
then there is no necessity, nor is it error, to Appellate courts in Texas are required by refuse an instruction embodying the principle law, and from education and inclination are in the one before us. It is simply the province disposed, to show great deference for verdicts of the jury, guided by the general instruction
as to the credibility of witnesses and the weight of jury; but they are not inclined to uphold to be attached to their testim to determine a verdict that is in the very face of the the credit of such witness and the force and pleadings and evidence of a plaintiff himself, effect of his testimony. If a plaintiff or de in response to his demand that his allega- which may be construed unfavorably to them,
fendant testifying in a cause make statements tions and proof must be discarded and evi- it is the province of the jury to consider them; dence of a man, alleged by him to be a but, unless such statement amounts to an adswindler and defrauder, taken as true, and mission of a fact material to the issue, it is not
the province of the court to assume that unbuild a recovery thereupon. The facts, how- favorable statements have been made and inever, tend to show that appellee told the struct the jury on that subject." truth about the partnership between him and Black, and the only possible ground on which  In this case, however, the trial court there is any conflict between him and Black could with perfect propriety have instruct. is as to the exact time when the partnership ed the jury that it had been admitted by apwas formed. Appellee by allegation and tes- pellee that he formed a partnership with timony made the partnership the chief in- the agent of appellant prior to the purchase ducement to the purchase of the land. It is of the land and that the formation of the not claimed in the motion for rehearing that partnership was the chief inducement to appellee did not swear that the partnership the purchase of the land. Appellee pleaded was formed before the sale of the land was and proved the theory upou which he sought consummated, and was the chief inducement to recover, and he will not be permitted to thereto; but Black, the man who misled and
recover on a theory made by the evidence of
an intervener, who had conspired with him deceived appellee, is the sole reliance upon which the verdict is hinged. Not only this, offered to sustain such a position, and none
as against the principal. No case has been but Black is represented as a plaintiff, al will be, because it is contrary to all rules though he came in as an intervener, and his of law and right applicable to the ques. allegations as to the partnership being form
tion. ed after the contract was made are quoted
There is not one word of testimony tendand relied on, although each and every one ing to show that Binder knew of the partof them were denied by appellee in a supple-nership between Black and appellee, but all mental answer. The allegation, however, of of the testimony shows that he did not. AlBlack, shows that a verbal agreement was though it is so stated in the motion for remade as to the partnership before the sale hearing, Black did not swear that he inwas perfected; his allegation being as to the formed Binder about the partnership. What written contract which was executed on May he said about informing Binder was before 27, 1911, just two weeks after appellant had the partnership was mooted, and was in resold the land to appellee. The written con- gard to an interest that Black had in the tract recites the existence of a verbal agree-land being kept by him. In order to show ment of partnership in the land.
that Binder knew about the transaction, evi. While appellee cites authority to show dence of Black, to the effect that at the that the opposing party may by his evidence very start of the negotiations appellee tried explain or even disprove the existence of a to get Black to defraud his principle and fact testified to by a plaintiff, and the jury "stand in” with him, is cited with approval might take the evidence of the defendant by appellee. upon which to base a verdict for the plain The defense pleaded in this case was not tiff, he fails to cite any case that holds that contemplated in the first answer, but was the evidence of the defendant contrary to set up about four months after the suit had one of the main points relied upon in the pe been filed, and in the third amended answer, tition for a recovery and supported by the upon which the cause was tried, there was deliberate careful testimony of the plaintiff no plea of failure of consideration, as is can be taken in the face of such allegation stated in the original opinion; but we find and proof as a basis for a finding in favor that a plea of failure of consideration was
filed as a second trial amendment on April 12. APPEAL AND ERROR 1170(3)-HARMLESS 14, 1917, about four days before the cause
ERROR-OVERRULING EXCEPTIONS. was submitted to the jury. The cause was tion concerning defendant's liability in the event
Though allegations of the supplemental petisubmitted to the jury on the theory of dam- that plaintiff was at the time of his injury in ages arising from fraud and not on failure the service of an independent contractor were of consideration. The jury so understood it mere conclusions and not statements of facts,
the overruling of an exception was not reversible and stated:
error under rule 62a (149 S. W. x), providing “We find that defendant Millikin is entitled that no judgment shall be reversed and a new to recover damages as an offset in the nature trial ordered for errors at the trial unless the of a credit on said notes, and find as such dam- appellate court shall be of the opinion that the ages the sum of $125,756.52, which is the dif- error was such a denial of appellant's rights as ference between the amount for which the land was reasonably calculated to cause, and proband personal property sold, to wit, $300,000, ably did cause, the rendition of an improper and the market value of such land and personal judgment, where the jury found upon sufficient property on May 25, 1911, etc."
evidence that plaintiff was in defendant's service.
3. TRIAL C350(6) SPECIAL ISSUES ACTlowever, the plea of failure of considera TIONS FOR PERSONAL INJURIES. tion was verified by affidavit and filed as ing to prove that plaintiff worked intermittent
Where defendant introduced testimony tenda second trial amendment, and the state-ly for it and for F., a special issue as to whethment made in our former opinion to the con er plaintiff at the time he was injured was entrary is hereby corrected. This will not gaged in doing any service for defendant was alter the disposition of the cause.
material to the contention insisted upon by de
fendant as material. Black wrote Binder on April 26th, just aft- 4. TRIAL C-350(6), 351(5)—SPECIAL ISSUESer the preliminary contract was closed, that ACTIONS FOR PERSONAL INJURIES - ISSUES appellee had taken all of the land when at ALREADY SUBMITTED. that very time he had entered into the part in defendant's employ when the injury occurred
A special issue as to whether plaintiff was nership and retained one-half the property was properly submitted, and while the court and on the next day, April 27, 1911, he tele- might have submitted the issue in that form, or graphed appellee, at Tulsa, Okl., asking him in the form requested, as to whether he was in to write a letter stating that appellee would submitted it in one form it was not error to re
the contractor's employ when injured, having sell Black a half interest in the land. It is fuse to submit it in the requested form. contended that the testimony was an inno- 5. TRIAL 330(1) - SPECIAL ISSUES - QUEScent scheme on the part of Black to get a
TIONS TO BE SUBMITTED. bonus from some one, but the fact remains charge that each group of facts pleaded and
The rule in cases submitted by a general that one month after that one-half the land supported by testimony should be affirmatively was contracted by appellee to Black. That submitted to the jury does not apply when the contract recites the existence of the verbal case is submitted upon special issues. agreement to convey one-half the land, and 6. TRIAL Em 350(6) SPECIAL ISSUES AC
TIONS FOR PERSONAL INJURIES. the evidence shows that the verbal agreement
A special issue as to whether plaintiff at the must have been made before appellee left Santime he was injured was engaged in the disAntonio, and before the preliminary contract charge of his duties as defendant's employé was was signed, because just as soon as that not objectionable as submitting a question of
law. contract was signed appellee left for Tulsa,
7. TRIAL 350(6) SPECIAL ISSUES Acand remained there until and after the con
TIONS FOR PERSONAL INJURIES—“QUESTION tract of partnership with Black was signed. OF FACT." It is not claimed that the verbal contract A special issue as to whether a box car was made by telephone, and consequently which plaintiff was boarding when a brake wheel it could not have been made while Black gave way and permitted him to fall belonged to
defendant at the time of the injury submitted a was in San Antonio and appellee was in question of fact, and not one of law, within Tulsa. There is no escape from this conclu- Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, sion.
providing that the special verdict must find the
facts established by the evidence. The motion for rehearing is overruled.
[Ed. Note.- For other definitions, see Words and Phrases, Second Series, Question of Fact.]
8. TRIAL 351(5) - SPECIAL ISSUES RESAN ANTONIO, U. & G. R. CO. V. DAW
Where the court submitted a special issue SON. (No. 5945.)
as to whether the car belonged to defendant at (Court of Civil Appeals of Texas. San Antonio. the time of the injury, it was not error to refuse Jan. 30, 1918. On Motion for Rehear to submit an issue as to whether it belonged to ing, March 6, 1918.)
an independent contractor at such time. 1. MASTER AND SERVANT Om 263 ACTIONS 9. TRIAL 352(5)-SPECIAL ISSUES-FORM
FOR INJURIES PLEADING SUPPLEMEN "SIMPLE SENTENCE.”
A special issue as to whether at the time In a railway conductor's action for injuries, of the injury such car was being moved by dein which the answer denied that plaintiff was fendant in the operation of its railroad or in in defendant's employ at the time of the injury, work incidental to such operation was not oband alleged that he was employed by and work- jectionable as submitting two issues in one reing for F., an independent contractor engaged quiring two answers, as the sentence in constructing defendant's road, an allegation simple sentence," under the rules of syntax, in in the supplemental petition that F. was de- which only one principal statement was made, fendant's president was not irrelevant.
but with adverbial phrases modifying the prediFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
cate, while, in order to be subject to the objec-Jer plaintiff was in defendant's employ when intion made, the sentence must be a compound jured, an issue as to who gave plaintiff instrucsentence composed of two co-ordinate clauses. tions to do the work at which he was injured, 10. MASTER AND SERVANT 284(1) AC- and other instructions requiring a finding of the TIONS FOR INJURIES-QUESTIONS FOR JURY. evidence by which the fact of employment was
In a railway conductor's action for injuries, to be determined and not the fact of employa peremptory instruction requested by defendant ment itself, were properly refused.. was properly refused if there was any evidence | 18. APPEAL AND ERROR O 692(1)-RECORDthat plaintiff was an employé of defendant at MATTERS PRESENTED BY REVIEW. the time of his injury, and was at that time per- An assignment of error complaining of the forming the duties of his employment, and that sustaining of an objection to a question will be defendant's negligence proximately caused his overruled where the bill of exception does not injuries.
show what answer the witness would have made. 11. MASTER AND SERVANT 277-SUFFICIEN- 19. EVIDENCE 471 (30)-FACTS OR COXCLUCY OF EVIDENCE-EXISTENCE OF RELATION. SIONS-AGENCY.
In a railway conductor's action for injuries, Testimony that a witness was collecting in which defendant claimed that plaintiff was money and tickets for a named railroad comworking for an independent construction con- pany stated facts, and not the conclusions of the tractor, evidence held sufficient to sustain a find- witness. ing that he was defendant's employé and was 20. APPEAL AND ERROR 500(3)-RECORDengaged in the performance of the duties re- RULINGS-NECESSITY OF SHOWING. quired of him by defendant when injured.
The failure to exclude testimony on motion 12. APPEAL AND ERROR Ow1001(1)-REVIEW, will not be considered where the bill of excepCONCLUSIVENESS OF VERDICT.
tion does not affirmatively show that the court Though there was direct and circumstantial ruled on the motion. testimony to prove that plaintiff was in the 21. EvIDENCE C116-ADMISSIBILITY-MATservice of the independent contractor, the jury's TERS EXPLANATORY OF FACTS IN EVIDENCE, determination in favor of plaintiff on sufficient Where, in a railway conductor's action for evidence bound the Court of Civil Appeals. injuries, defendant alleged and attempted to 13. TRIAL 194(9) INSTRUCTIONS ON prove that the relation of master and servant
WEIGHT OF EVIDENCE INJURIES TO Em- did not exist between it and plaintiff, and in PLOYÉ.
this connection introduced evidence that plainUnder Vernon's Sayles' Ann. Civ. St. 1914, tiff took orders from, made reports to, and art. 1971, providing that the court shall not was paid by certain persons claimed by it to be charge or comment on the weight of the evi- agents of an independent construction contracdence, an instruction, in an action for injuries, tor; testimony that these agents represented that the making of an application for employ- both the contractor and the railroad company ment, and an agreement proved as to plaintiff's was relevant. seniority on defendant railroad company's list 22. EVIDENCE 155(1) - ADMISSIBILITY BY of conductors, did not constitute an employ- REASON OF ADMISSION OF OTHER EVIDENCE. ment by the railroad company, was properly Where defendant introduced in evidence the refused, where it was not in explanation of any business relationship between it and the conlegal terms used in the special issues.
tractor, it was proper for plaintiff to develop 14. TRIAL Om 251(8) -- INSTRUCTIONS AP- the details of such relationship, especially on PLICABILITY TO ISSUES.
cross-examination. Where the special issues did not ask wheth- 23. APPEAL AND ERROR Ow499(1)-RECORDer plaintiff was an employé or defendant an em- PRESENTATION OF OBJECTIONS. ployer, though one of the issues asked whether
An assignment of error complaining of the plaintiff was in defendant's employ, a request: argument will be overruled where the bill of exed instruction defining the words "employer” ception states no reason for the objection to the and "employé". was not pertinent and
was argument, especially where it appears therefrom properly refused.
that the argument was entirely within the rec 15. TRIAL 251(8) INSTRUCTIONS AP- ord and proper. PLICABILITY TO ISSUES.
24. TRIAL O352(5)-SPECIAL ISSUES-ISSUES Under Vernon's Sayles' Ann. Civ. St. 1914,
ASSUMING FACTS. art. 1984a, providing that in submitting special In a railway conductor's action for injuries, issues the court shall submit such explanations in which defendant claimed that plaintiff was and definitions of legal terms as shall be neces- working for an independent construction consary to enable the jury to properly pass upon tractor, a special issue as to whether it was negand render a verdict on such issues, an instruc- ligence "on the part of defendant railroad com, tion in a railway conductor's action for injuries pany to have and permit said brake wheel that a person named was an independent con- and its attachments to be in such insecure and tractor, and that defendant was not liable for defective condition, though, standing alone, subhis negligent acts, was properly refused, where ject to the objection that it assumed that the it was not an explanation or definition of any
car was defendant's property and that plaintiff term used in any special issue given.
was in defendant's employ, was not misleading, 16. Trial Ow350(8)—SPECIAL ISSUES-UNDIS- where in preceding issues the jury were asked PUTED FACTS.
whether plaintiff was in defendant's employ Under Vernon's Sayles' Ann. Civ. St. art. when injured, whether such car was being 1985, providing that the special verdict must moved in the operation of the railroad by defind the facts established by the evidence, and fendant when he was injured, whether it was that it shall be the duty of the court, when it defendant's property, and whether the brake submits a case to the jury upon special issues, wheel and attachments were insecurely fastened to submit all the issues made by the pleadings, and in a defective condition. undisputed facts should not be submitted in special issues.
On Motion for Rehearing. 17. TRIAL 350(6) SPECIAL ISSUES — Evi- 25. DAMAGES 132(10) EXCESSIVENESS DENTIARY OR ULTIMATE FACTS.
PERSONAL INJURIES. Under Vernon's Sayles' Ann. Civ. St. 1914, A railway conductor 45 years old, and havart. 1985, providing that the special verdict ing an earning capacity of about $125 a month, must find the facts established by the evidence, was thrown under a car and badly crushed, neand not the evidence by which they are estab? | cessitating the amputation of one leg and three lished, where there was a dispute as to wheth- l operations on the other, in which so much of
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
the bone was taken out that it was in danger of defendant company wholly failed to use any care
In its first amended original answer the
Appellant's answer generally denied the
allegations of the first amended original Appeal from District Court, Bexar County; R. B. Minor, Judge.
petition; and specially denied each of the maAction by G. R. Dawson against the San terial allegations; and, further, in defense,
averred: Antonio, Uvalde & Gulf Railroad Company.
“That on or about the 29th day of November, From a judgment for plaintiff, defendant ap- 1913, at the time the plaintiff is alleged to have peals. Affirmed.
been injured, this defendant company was not J. A. Germany, of Dallas, and J. C. Hall place of the alleged accident; that it was not
operating its trains or any of its cars at the and Mason Williams, both of San Antonio, a common carrier of freight for hire through for appellant. Perry J. Lewis, Champe G. the town of Mathis, Tex., on the date alleged Carter, Randolph L. Carter, and H. C. Carter, plaintiff was not, at the time he alleged to have
by the plaintiff when he was injured; that the all of San Antonio, for appellee.
been injured an employé of this defendant com
pany; that at the time the injury is alleged to SWEARINGEN, J. This is a suit for dam- have occurred this defendant company had a
written contract with J. E. Franklin, of St. ages for personal injuries brought by G. R. Louis, Mo., under the terms of which written Dawson, appellee, against the San Antonio, contract the said J. E. Franklin agreed, as an Uvalde & Gulf Railroad Company. Special independent contractor, to construct for this issues were submitted to a jury, upon the defendant railroad company that part of the
road upon which the plaintiff is alleged to have verdict of which judgment for $30,000 was been injured; that this defendant alleges, upon rendered against appellant.
A. R. Bonder information and belief, that at the time of the and Duval West, receivers of the property of the said J. E. Franklin, who was an independ
plaintiff's alleged injury he was employed by the railroad, were made parties, in whose ent contractor for the San Antonio, Uvalde & favor judgment was rendered.
Gulf Railroad Company, and at the time the The cause alleged in appellee's first amend plaintiff is alleged to have been injured he was
working for the said J. E. Franklin and not for ed original petition was that appellee, while this defendant company; that at the time of in the employ of the appellant railroad com- the plaintiff's alleged injury this defendant company in the capacity of railroad conductor, pany had no supervision over the plaintiff, and and while in the performance of his duties had it the right to hire or discharge the plain
had no right to control him in his work, neither as such conductor, was seriously and perma- tiff at the time of his alleged injury, but he at nently injured by the negligence of appellant. said time was under the immediate control and The negligence alleged is:
supervision of the said J. E. Franklin, an inde
pendent contractor. “That while one of said cars was being moved, in the discharge of his duty plaintiff got upon Furthermore, the answer averred J. E. the end thereof in order to make his way to the Franklin's residence to be in St. Louis, Mo., opposite side of the train; that upon the end of said car, at the point where it was necessary but that he could be often found in Bexar for the plaintiff to have a handhold, there was county, Tex., and personal service of citano handhold, but there was a brake wheel that tion could be had upon him. The answer was used by defendant company's trainmen to sustain themselves in passing over said car; concluded with the words: that in passing over said car, as was proper, "In the event, however, judgment should be right, and usual, plaintiff took hold of said rendered against this defendant company, then brake wheel, in order to sustain himself; that it prays that it have judgment over against J. when the plaintiff took hold of said brake wheel E. Franklin for any amount recovered against the wheel and its attachment gave away, and it, and for costs and general and special relief." caused the plaintiff to be thrown headlong in front of the moving car; that plaintiff charges J. E. Franklin was not a party to the suit. that it was defendant company's duty to use In a first supplemental petition appellee ordinary care to see that said brake wheel and demurred to the averments of the answer, genits attachments were properly fastened, but, notwithstanding this duty, said defendant com erally denied them and specially traversed pany negligently caused and permitted said the averments that appellant was not operbrake wheel, the staff thereof, and the bolts and ating the train, did not own the defective fastenings that should secure the same, to become loose, insecurely and defectively fastened, car, and was not the master of appellee, as and by reason of this said brake wheel and its follows: attachments, by reason of defendant's negli
“The plaintiff says that J. E. Franklin, who gence, was insecurely and defectively attached is alleg to be an independent contractor at to said car, and by reason of said defects said the time the plaintiff was injured, was the presibrake wheel and its attachments gave away dent of the San Antonio, Uvalde & Gulf Railwith the plaintiff, and this negligence of the rond Company; that the plaintiff was employed defendant company directly caused his injuries, by the defendant railroad company as a conwithout fault on the plaintiff's part.
ductor of its trains at the time and place he was **(5) The plaintiff charges that the aforesaid injured, and he had no knowledge whatever of defects in said brake wheel and its attachments being in the employ of any one save the defendcould have been discovered by the defendant ant railroad company; that if the defendant company by the use of ordinary care, but said railroad company or its receivers should offer
any testimony tending to show that the plaintiff, that J. E. Franklin was an independent conwas in the employ of J. E. Franklin, an inde-tractor. pendent contractor, that said testimony would not be true, and at best said untrue testimony would
 The second exception is that specified only tend to show that the said plaintiff was in allegations in the supplemental petition were the joint employ of both the said defendant mere conclusions and not statements of facts. railroad company and said J. E. Franklin, and, The criticism is probably correct; but the should it be found that the plaintiff was in the joint employ of said defendant railroad company conclusions were concerning questions that and said J. E. Franklin, such a finding would did not affect the verdict or the judgment be no defense to the plaintiff's cause of action, and, in accordance with rule 62a (149 S. W. and in event such a finding is made the plaintiff x), if error, would not be reversible error. says that, even under such facts, the defendant railroad company would still be liable to this The conclusions complained of were concern. plaintiff; that the defective car mentioned in ing the liability of the railroad company ip plaintiff's petition, as well as the other cars and the event appellee was, at the time of his the locomotive in the train being handled, were owned or operated by the defendant company, injury, in the service of J. E. Franklin, an inand it was said defendant company's duty to dependent contractor. The jury found, upon use ordinary care to maintain said car in a rea- sufficient evidence, that appellee was in the sonably safe condition to be handled by those service of the railroad company and the whose duty it was to handle it; that, regardless of plaintiff's employment, it was negligence judgment was based upon that finding. on the part of the said defendant company to Both assignments are overruled. permit said car to be in such defective condition,  The third assignment contends that the and as aforesaid plaintiff was handling said car first special issue should not have been given. in the discharge of his duty, and therefore the said defendant company is liable to the plain-The issue is: tiff for the damages which its negligence direct “At the time the plaintiff, G. R. Dawson, ly produced.”
claims to have been injured, on November 22,
1913, was he engaged in doing any service for Appellant addressed, in a supplemental an- the defendant, San Antonio, Uvalde & Gulf swer, a general demurrer and two special ex
Railroad Company?". ceptions to the first supplemental petition, all The objection to the instruction is that of which were overruled. Error in overrul- it submits an immaterial issue. ing the two special exceptions is assigned for The issue made by the pleadings is, Who our review.
was the master of appellee when injured? The facts are that on November 29, 1913, To determine this issue, appellant introduced appellee was a train conductor, and while in testimony tending to prove that appellee the performance of his duties found it neces- worked intermittently for appellant and sary to use a brake wheel on car No. 173 as for Franklin, an independent construction a handhold; that the brake wheel and its at contractor. Appellant's testimony tended to tachments on said car were insecurely fas- furnish a certain test from which the jury tened, and were in a defective condition as could determine who was the master at the alleged, which constituted negligence, which moment of the injury. That test was, Whose negligence directly caused the injuries suf- service was appellee engaged in at the time? fered by appellant; that the injuries were Appellant's testimony tended to prove that serious and permanent, causing appellee the service was that of construction, and great pain and impairing his earning ca- for Franklin; while appellee's testimony pacity.
tended to prove the service was transportaIn addition to the foregoing facts, the tion of passengers and freight, and therejury found that appellee at the time of his fore for the railroad company. The issue injury was "engaged in doing service for submitted, therefore, was material to the the" appellant railroad company, was in the contention insisted upon by appellant as employ of same, and was injured while en material. The third assignment is overgaged in said employment. The jury fur- ruled. ther found that at the time of the injury the  The fourth assignment complains that car No. 173 was being moved by the appel- it was error to ask the jury if appellee was lant railroad company either in the opera- in the employ of appellant when the injury tion of its railroad or in work incidental to occurred. The seventeenth assignment comsuch operation, and that the car No. 173 be- plains that it was error to refuse to submit longed to the appellant company. There was the question in another form, viz., Was apevidence to sustain these facts found by the pellee in the employ of the contractor when jury, and, in deference to the verdict, we the injury occurred? The issue of who was find them as facts established by the evi- the master was made by the pleadings and dence in this cause.
became sharply contested by the evidence,  Assignments numbered 1 and 2 com- and was properly submitted. The language plain of the decree overruling two special used is not subject to criticism. The same is. exceptions to the first supplemental petition. sue could have been submitted in either the The first exception is that the allegation form given or in the form refused, but, be that J. E. Franklin was the president of the ing given in one form, it was not error to appellant railroad company was injurious refuse to give it in the refused form. and irrelevant. We think the allegation was  The real contention presented by asrelevant, in view of appellant's contention signments 4 and 17 is that each group of