after the accident, plaintiff was complaining all the time, and that he finally had to quit work.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by P. A. Boyle against the Wells, Fargo & Company Express and another. From a judgment in favor of plaintiff, the express company appeals. Reversed.

Alexander & Thompson, for appellant. Evans & Elder and A. H. McKnight, for appellees.

BOOKHOUT, J. Appellee, as plaintiff, in his first amended original petition declared for damages in the sum of $20,000 against the Wells, Fargo & Company Express and the Houston & Texas Central Railway Company in the district court of Hunt county, Tex., alleging that while in the service of the express company, at Dallas, on 7th day of October, he sustained personal injuries while engaged in handling a truck upon which was loaded express packages; that parcels of said express matter fell from the truck, and struck and injured him; that this was due to negligence of the defendant in permitting and causing the platform over which the truck was handled to have a hole or gully therein, and the truck furnished and used by plaintiff was defective and out of repair, in that the tongue was out of repair so that the truck could not be safely guided, and the wheels and axles of the truck were worn, which caused the wheels to wabble on the axles; that said injuries occurred on the platform of the Houston & Texas Central Railway Company, in the city of Dallas, which, under some arrangement between the railway company and the express company, the latter was permitted to use. Negligence was alleged with respect to light or lack of light on platform, but this issue was not submitted to the jury, nor insisted upon by plaintiff. The Houston & Texas Central Railway Company urged a plea of personal privilege to be sued in a county in which it had an agency, and the railway company was by verdict and judgment discharged hence on its plea of privilege. The express company, besides a general denial, answered specially (1) that such injuries as plaintiff sustained were due to his own want of care; (2) that his injuries were the result of assumed risk in course of his employment; (3) that his injuries were the result of negligence of fellow servants and plaintiff's concurring negligence. A trial of the case resulted in a verdict in favor of the railway company on its plea of privilege, and also resulted in a verdict in favor of plaintiff against the express company. From a judgment in favor of plaintiff, defendant appealed.

1. Error is assigned to the action of the court in admitting in evidence, over defendant's exceptions, the testimony of plaintiff's witnesses Drs. Morrow and Spaulding that plaintiff had trouble with his eyes and eye

sight. The objection to the testimony was that there was no allegation in the pleading that plaintiff's eyes or eyesight were injured. After alleging the particular acts of negligence, the petition further alleged that "by either or all of said causes the express matter was caused to topple and fall on plaintiff, striking him on the head, left shoulder, crushing him with considerable violence to the ground, and continued to fall on him after he fell to the ground, falling on his breast, hip, and bowels, seriously and permanently injuring him in his head, shoulder, breast, lungs, stomach, back, spine, spinal column, kidneys, and legs; injuring, bruising, lacerating the bones, muscles, ligaments, tendons, nerves, and blood vessels of all of the said parts of his body." Dr. Morrow testified that: "He has also complained considerably of his eyes. He complained of his eyes-that he could not see. At times the pupil of one eye would be much larger than the other. Sometimes dilated and sometimes contracted. There is an irregularity in the pupil, and he frequently complains of dizziness and of seeing something that looks like spots to him." Dr. Spaulding testified as follows: "He has complained of disturbance of vision, and his eyes I have examined quite a number of times. I did not discover this other injury right at first, but had to hunt for it some time. There was quite a variation in them. Sometimes he could see very well, and at other times there was quite a disturbance in his vision, and occasionally the lids would be swollen and red. At other times there would be no swelling in the lids. There was a sensational disturbance as to pain. It was distributed all over the left side specially. This led me to make an examination of the head. I found a depression on the right side of the head-a depression of the skull. I think it is about three-fourths of an inch in diameter. The depression is not very great. There is no depression in the same area on the other side. This depression is over the area of sight partially, and partly in the sense of pain and sensitiveness." Are the injuries alleged in the pleading sufficient to admit evidence of an injury to the plaintiff's eyes and eyesight? The injuries to the eyes and eyesight, not having been expressly alleged, must be the natural and necessary result of those complained of in the pleading, to justify the admission of the evidence. Southern Pac. Co. v. Martin (Tex. Sup.) 83 S. W. 675. Appellee contends that the allegation in the petition of injury to the "head, spine, and nerves" was sufficient to authorize the admission of evidence of injuries to the eyes and eyesight. We do not concur in this contention. We do not think the evidence shows that injuries to the eyes and eyesight are the necessary result of the injuries to the head, spine, and nerves. The testimony was improperly admitted.

2. Upon the trial, Eb Johnson, a witness for plaintiff, was asked by the plaintiff's

counsel: "What has been his [plaintiff's] condition since he came back to Greenville from Dallas, in October, 1902, with reference to his being able to work?" Defendant objected because the witness was not qualified to answer as an expert, and it involved the conclusion of the witness. The court overruled defendant's objection, and the witness answered, "Well, he has not been able to do much." Defendant objected to the ruling, and took a bill of exception. The witness had not qualified as an expert. The fact that he had lived near plaintiff, and had known him for a long time, did not qualify him to give an opinion as to plaintiff's ability to work. The answer was a conclusion, and, to render it admissible, the witness must have qualified as an expert.

3. Ike Hartsel, a witness for plaintiff, was permitted to testify, over the objection of the defendant, that while working with a thresher plaintiff was complaining all the time; that he would very frequently come back when he was off for a little while, and complain to witness, who was running the engine; and that plaintiff finally had to quit work. This testimony was objected to by defendant on the ground that it was the selfserving declaration of plaintiff, and therefore not admissible. The exception was overruled, the evidence admitted, and the ruling properly preserved by bill of exception. The evidence fails to show what appellant complained of, or that the complaints were the expression of present pain then existing as the result of injuries received in the accident complained of. Wheeler v. Ry. Co., 91 Tex. 356, 43 S. W. 876. The evidence was selfserving, and its admission was error.

The assignments not discussed have been considered, and are not believed to present reversible error.

For the errors pointed out, the judgment of the court below as to appellee Boyle is reversed, and the cause remanded. The judgment of the court below as to appellee Houston & Texas Central Railroad Company is affirmed.

1. Objection to a question, asked plaintiff on cross-examination in an action for injury from the mule which he was driving being frightened by defendant's engine at a crossing, whether he drank any whisky the day of the accident, that it should be limited to some time before the accident, should have been sustained, it being immaterial, on the question of contributory negligence, whether he drank after the accident.

2. The giving of a charge, in an action for injury from negligence, that if the jury find certain facts, all of which are averred in the

petition, they should find for plaintiff, is not error, though he may be entitled to recover on a part only of such facts.

3. The requested instructions of plaintiff, in an action for injury from the mule which he was driving being frightened by defendant's engine at a crossing, on the subjects of negligence in not having a watchman at the crossing and imminent peril, issues on which were presented by the petition and evidence, should have been given.

4. Where plaintiff was entitled to recover for injury from negligence if certain facts alleged in the petition were true, and the charge only authorized recovery if those and other facts alleged in the petition were found to be true, a requested instruction to find for plaintiff if such facts were found should have been given.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by Albert Crowder against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant. Plaintiff appeals. Reversed.

A. J. Gates and Mulkey & Hamilton, for appellant. E. B. Perkins and Templeton, Crosby & Dinsmore, for appellee.

KEY, J. Albert Crowder and one John Kelly were riding in a buggy drawn by a mule. They were traveling a street in the town of Commerce, and, while crossing the track of the St. Louis Southwestern Railway Company, an engine which was near by started in the direction of the crossing, and the mule became frightened, ran away, and threw Crowder out of the buggy, thereby inflicting upon him certain injuries. Crowder brought this suit against the railway company, charging that the employés who were operating the engine "suddenly, and without warning or notice of any kind to plaintiff, started toward plaintiff and said Kelly at a rapid rate of speed, and at the same time the steam from said engine was permitted to escape in great quantities, and said locomotive was permitted to make a great deal of unusual, unnecessary, and unreasonable noises; that said acts were done and permitted in a negligent manner by defendant's agents in charge of and operating said locomotive; that said locomotive came very near colliding with said vehicle in which plaintiff and said Kelly were riding, and that said locomotive, and the steam and smoke escaping therefrom, and the noises made by the same, caused the mule attached to said buggy to become suddenly frightened and to run away; that being badly frightened by said locomotive, and in order to escape from being struck by said locomotive, the said mule ran down the track in front of the same, and caused the said buggy to be suddenly jerked in such a violent manner that the plaintiff was thrown therefrom," etc.

The first assignment complains of the ruling of the court as to the admissibility of certain testimony. The bill of exception shows that, while the plaintiff was on the stand

testifying in his own behalf, he was asked by the defendant's counsel on cross-examination if he drank any whisky on the day of the accident. The plaintiff's counsel objected to the question, on the ground that it was too general and should be limited to some time prior to the accident. The court overruled the objection, and the plaintiff answered that he had taken a dram that day; that John Kelly had a bottle in the buggy, and the plaintiff took a drink therefrom; but it was shown that that occurred after the happening of the accident. We think the court should have sustained the objection to the question. The fact that the plaintiff drank whisky after the accident occurred was wholly immaterial. As bearing on the question of contributory negligence, it might have been permissible to show that he had been drinking before the accident occurred, but it was immaterial to show that he had drunk intoxicating liquor after the accident. Whether or not the ruling here complained of would require a reversal of the judgment need not be decided, as we hold that other grounds for reversal are shown.

The fourth paragraph of the court's charge reads as follows: "(4) Therefore, if you be lieve from the evidence that plaintiff and one John Kelly were on and driving across Sycamore street, in the city of Commerce, as alleged by him, and that an engine which was standing on the track of defendant's railroad, as alleged by plaintiff, in charge of defendant's servants, suddenly, and without warning or notice of any kind to plaintiff, started towards plaintiff and said Kelly; and if you believe that plaintiff and the said Kelly were in full view of the servants of defendant operating said engine; and if you believe that said servants saw the situation of said plaintiff, or by the use of ordinary care, as above defined, they would have seen his situation; and if you believe that, while the plaintiff was so situated, said servants of the defendant in starting said engine, if they did so start it, caused said engine to emit steam in great quantities, and to make a great deal of unusual, unnecessary, and unreasonable noises; and if you further believe that such noises, if any, made by the discharge of the steam, if any, was, under the circumstances, reasonably calculated to frighten the mule driven by plaintiff and said Kelly; and if you believe that such noise caused by the discharge of said steam, if any, and the approach of said engine, if it did approach, was reasonably calculated to endanger the safety of plaintiff; and if you believe that the danger, if any, to plaintiff from the discharge of said steam, if any, and the approach of said engine, if it did approach, was known to said servants, or could have been known to them by the exercise of ordinary care; and if you further find that the making of such noise, if any, by the discharge of steam, if any, and the starting of

said engine, if it did start, toward said plaintiff, if there was such starting of such engine and such discharge of steam, was negligence, as that term has been heretofore defined; and if you believe that such negligence, if any, caused the mule driven by plaintiff and the said Kelly to become frightened and unmanageable and to run away, and that plaintiff was thereby thrown from the vehicle and injured, as alleged by him, in his foot, ankle, and leg; and if you believe that the negligence of the defendant, if any, in the matters herein submitted to you, was the proximate cause of plaintiff's injury, if any -you will find for the plaintiff, unless you find for the defendant under other issues submitted to you." This charge is assigned as error, counsel for the plaintiff contending that it required the jury, in order to find for him, to find that he was in full view of the servants operating the engine, and also to find that the servants of the defendant, in starting the engine, caused it to emit steam in great quantities, and to make a great deal of unusual, unnecessary, and unreasonable noises. The contention is that the charge required the jury to find more facts than the plaintiff was required to prove before they could find a verdict for him. According to the views of our Supreme Court, as expressed in Railway Co. v. Brown, 78 Tex. 397, 14 S. W. 1034, Railway Co. v. Wood, 69 Tex. 679, 7 S. W. 372, and Railway Co. v. Hill, 95 Tex. 629, 69 S. W. 136, the charge is not subject to the criticism urged against it. In the cases cited it is held that a charge instructing the jury, if they find a certain group of facts, to find for the plaintiff or the defendant, as the case may be, is not erroneous, although the party might be entitled to a verdict on a finding of one or more of the facts referred to. The charge here complained of followed the averments contained in the plaintiff's petition, and, following the cases cited, we overrule the assignment complaining of this charge.

We overrule all the other assignments which complain of the court's charge. However, we sustain the fifth and sixth assignments, which complain of the action of the court in refusing special instructions requested by the plaintiff. The plaintiff alleged that the defendant was guilty of negligence in not having a flagman or watchman at the place where the accident occurred; and without commenting on the testimony, or indicating any opinion as to what should be the finding thereon, we think it was sufficient to require the issue to be submitted to the jury, and that appellant's requested instruction on that subject should have been given.

We also hold that the instruction requested on the subject of imminent peril, set out under appellant's sixth assignment of error, should have been given. The plaintiff's petition and the testimony submitted thereunder presented that issue.

We also sustain the seventh assignment, which complains of the action of the court in refusing to give the following requested instruction: "You are instructed that if you believe from the evidence that the defendant's locomotive was standing near a public crossing, as alleged by plaintiff, and that the plaintiff believed that the said engine would remain standing until he would have time to drive across the tracks, and that, so believing he drove or was driven on to the tracks of defendant; and if you further believe that when he had reached a point near the said engine, if he did, that the said engine started to moving towards him, and that the mule attached to the buggy in which he was riding became frightened at the movement of the engine and the noise attending its movement, if it moved, and if it made any noise, and that such movement, if any, by the employés in charge of the locomotive at said time and place, was negligence, as that term is defined in the court's main charge; and if you further believe that the plaintiff was not guilty of contributory negligence you will find for the plaintiff." This instruction, if given, would have authorized a verdict for the plaintiff upon a finding of some, but less than all, of the facts grouped together in the court's charge. The plaintiff would be entitled to a verdict on a finding of the facts referred to in his requested instruction, and, as the court's charge did not so instruct the jury, it was error to refuse this instruction.

The judgment of the court below will be reversed, and the cause remanded. Reversed and remanded.

MISSOURI, K. & T. RY. CO. OF TEXAS v. ALLEN.

(Court of Civil Appeals of Texas. April 29, 1905.)

CARRIERS-CARRIAGE OF LIVE STOCK-NEGLIGENCE-MEASURE OF DAMAGES-PETITION.

1. Act May 20, 1899 (Laws 1899, p. 214, c. 125), provides that, whenever any freight has been transported over two or more railroads, a suit for damages to such freight may be brought against any one or all of such roads in any county in which either extends or is operated. Held that, where an action for damages to live stock in transportation was brought in a county where one of the carriers operated its line, it was not necessary, in order to authorize the joinder of the other carriers, that the petition should have alleged a partnership, a joint contract, or the damages resulting from the negligence of each separate carrier, but it was sufficient to allege transportation over each of the lines, and that they were the agents of and for each other.

2. Under Rev. St. 1895, art. 320, forbidding the restriction of the common-law liability of a common carrier, a provision in a contract of shipment of cattle that no recovery could be had for damages to the cattle unless notice in writing should be given of the claim for damages before removal of the cattle from the cars was void.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 933-938.]

3. In an action against a carrier for damages to a shipment of horses, it not appearing that the carrier was notified that plaintiff intended to use the horses for the purpose of putting in a crop, he could not recover damages because of his failure to put in as much of a crop as he otherwise would have done, nor recover the value of extra time and trouble in moving the crippled horses from the place of destination to the place where he was putting in the crop.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 600, 963, 964.]

4. In an action against a carrier for damages to live stock in transportation, the difference between the market value of the stock in the condition in which they would have arrived at the place of destination and their market value at that place in the condition in which they did arrive was the proper measure of damages.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 963, 964.]

5. In an action against a carrier for damages to a shipment of live stock, it was error to permit a witness to give his estimate as to the market value at the place of destination, such estimate being based on his knowledge of the market value at another place.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 959.]

6. In an action against a carrier for damages to a shipment of live stock, it was the owner's duty, after delivery of the stock in an injured condition at the place of destination, to exercise reasonable care to prevent enhancement of damages, and hence he was entitled to recover the value of time and medicine devoted to that purpose.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, §§ 90, 91.]

Appeal from County Court, Deaf Smith County; W. B. Boyd, Judge.

Action by R. H. Allen against the Missouri, Kansas & Texas Railway Company of Texas and others. From a judgment in favor of plaintiff, and against defendant the Missouri, Kansas & Texas Railway Company, it appeals. Reversed.

T. S. Miller, Spoonts & Thompson and Marshall Spoonts, for appellant. S. H. Madden and Otis Trulove, for appellee.

CONNER, C. J. Appellee instituted this suit in the county court of Deaf Smith county on the 3d day of February, 1904, against the Pecos & Northern Texas Railway Company, the Ft. Worth & Denver City Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the International & Great Northern Railway Company, for the recovery of damages to 20 head of horses shipped by him from Round Rock, Tex., to Hereford, Tex. Appellee alleged negligence in the failure to furnish a proper car, and in a failure to exercise the proper care in the transportation, whereby the said horses were injured in the particulars described in his petition, and damaged in a total sum of $435. Among the items of damage alleged are the following: Seventy-five dollars for "the time that they were unable to work on account of their injury; five dollars time lost in doctoring said horses and mules; fifteen dollars unloading and reloading said horses and mules at Ft. Worth; ten dol

lars for medicine used, and time and trouble of moving crippled horses from Hereford, Tex., to Running Water, Tex." The trial resulted in a verdict and judgment in favor of all of the railway companies named save appellant, against which appellee recovered the sum of $175.

As alleged, the county court of Deaf Smith county had jurisdiction over appellant. All of the railway companies named were connecting carriers, and participated in the transportation involved. It was alleged that the Pecos & Northern Texas Railway Company had an agent and operated part of its line in the county of the suit. There was no plea of privilege other than by demurrer, and we think the petition brought the case within the letter and spirit of the act of 1899. See Gen. Laws 1899, p. 214, c. 125; also A., T. & S. F. Ry. Co. v. Williams, 86 S. W. 38, 12 Tex. Ct. Rep. 570. In such case it was not necessary, in order to authorize the joinder of appellant, that the petition should have alleged a partnership, a joint contract, or the precise amount of damages resulting from the negligence of each separate carrier. The petition did comply with the act stated in alleging the transportation over each of the lines named, and that they were agents of and for each other in such transportation. We therefore think the exceptions to the petition properly overruled.

Under the eighth, ninth, and tenth assignments, appellant seeks to avail itself of a special provision in its contract of shipment, to the effect that, as a condition precedent to appellee's right to recover, he should give notice in writing of his claim of damages to the officers of the company named before the horses were removed from the car in which they were transported. It appears notice, of which no complaint is made, was in fact given to the agent of the terminal railway company, but no claim for damages was presented to any officer of the appellant company. The provision of the contract mentioned was a limitation on the liability of the carrier at common law, and hence unenforceable. See Rev. St. 1895, art. 320; Railway Company v. Harris, 67 Tex. 166, 2 S. W. 574. The assignments mentioned in this connection are therefore overruled.

We find no satisfactory answer, however, to the third, fourth, and fifth assignments, all involving substantially the same question, viz., the proper measure of damage. Without proof that there was no market value at Hereford, Tex., the final destination of the shipment, and without knowledge on appellee's part of the market value of such horses at Hereford, appellee was permitted to testify that when the horses were delivered to him at Hereford he proceeded to his home in Running Water, Hale county, some 50 miles distant; that while he did not know of any horses or mules selling at Hereford, and made no inquiries as to prices, he knew of horses and mules selling at Running Water

shortly after the time he reached there, and he estimated the damages done to his horses and mules "at their difference in value as fixed by what they were selling at down there in Hale county shortly after I arrived there." Appellee then proceeded to give his estimate of the difference in the value of the horses and mules injured in the condition they were at the time of delivery at Hereford and in the condition they would have been in had the transportation been properly made, such difference aggregating $330. He was also permitted to testify, over the objection of appellant, that by reason of the injury to his horses he was unable for some time to use them for the purpose intended, to wit, planting a crop, "and, by reason of this loss of the use of the said horses and mules at the time when I needed them, I estimate that I was damaged at least as much as $75." We think the court committed error in the particulars named. It is not alleged, nor is it shown, that at the time of the shipment appellant or any of the carriers was notified of the fact that appellee intended to proceed from Hereford to Running Watei, and intended to use his horses and mules for the purpose stated. It seems clear, therefore, that the damage done because of appellee's failure to put in "as much crop" as he "otherwise would have done," and the value of the "extra time and trouble in moving" the crippled horses and mules from Hereford to Running Water, was not recoverable. Railway Company v. Belcher, 89 Tex. 428, 35 S. W. 6; Harmon v. Callahan (Tex. Civ. App.) 35 S. W. 706, and authorities there cited. It is also well settled that, in order for a witness to testify as to market values of live stock, he must be acquainted with the market values at the market concerning which he is called upon to testify. The difference between the market value of appellee's horses and mules in the condition in which they would have arrived at Hereford but for the negligence shown, and their market value at that place in the condition which by reason of said negligence they did arrive, constituted in the main the proper rule for appellee's damages. See Railway Company v. Stanley, 89 Tex. 42, 33 S. W. 109. Appellee, therefore, should not have been permitted to give his estimate of the differences in value, as he did, which was based upon a market other than Hereford, it not having been shown that there was no market at the latter point. It was appellee's duty under the law, after delivery of the horses and mules in their injured condition to him at Hereford, to exercise reasonable care and prudence to avoid further loss or enhancement of damages, and hence we see no reason why he should not be permitted to recover the reasonable value of the time and medicine devoted to that purpose, should the jury believe that in so doing he acted as a man of reasonable prudence. See 2 Sedgwick on Damages (8th Ed.) §§ 435, 437; Wa