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use ordinary care in doing so they would be guilty of negligence, and that if plaintiff failed to have train No. 104 under control in approaching Pilot Point, he would be guilty of negligence and he could not recover. The undisputed evidence shows that the main track was clear and this was seen by the plaintiff. The only other requirement of the rule is that on approaching such a station the train must be under control, and on this last point the court correctly instructed the jury. The court's charge sufficiently covers the points covered by the special charges, and it was not error to refuse to give them.

3. The court correctly charged the jury on contributory negligence, and it was not error to refuse the requested charges on this issue.

4. The court did not err in refusing appellant's requested charges relating to the custom of leaving switches open. Some of the witnesses testified that it was the custom for train crews to leave switches open when trains were switching as was done under the circumstances by the crew of No. 67. It was not shown that plaintiff had any knowledge of such a custom. On the contrary, he and the fireman on 104 testified that a different custom prevailed. Under the facts the requested charge was not warranted.

5. Under the allegations of plaintiff's petition it was not error to admit testimony showing injury to the muscles of the bladder, incontinence of his urine, etc. The allegations were that he was injured "by having his ribs broken, by having his back sprained and wrenched, and received other painful and permanent injuries to his arms, shoulders, chest, abdomen, kidneys, hips, and legs, which render him a permanent cripple for life. It was shown that the urinary organs are contained in and a part of the abdomen. This also disposes of the other assignments of error relating to the admission of evidence as to the character of appellee's injuries. Railway v. Edling, 45 S. W. Rep., 406; Railway v. White, 51 S. W. Rep., 366; Railway v. McMannewitz, 70 Texas, 78; Railway v. Kelton, 28 Texas Civ. App., 137; Railway v. Bibolet, 24 Texas Civ. App., 4.

6. Over the objection of appellant the court permitted plaintiff to introduce in evidence the following rule of defendant, viz: "11. When trains are to meet or pass each other, the train having the right to the road will occupy the main track between the switches, and the train having to take the siding will go in at the nearest end and not run by and back in; but if obliged from any cause to pull up and back in at the farthest end of the switch, a man must be first sent ahead a sufficient distance to flag approaching trains.” The testimony of appellee and his witnesses shows that this rule had been interpreted as requiring a flagman to be placed at an open switch to warn approaching trains when trains were switching as was No. 67, and we are not prepared to say that it was susceptible of such a construction. Anyway it was properly admitted on the question of contributory negligence, in view of said testimony.

7. The admission of the following rule was not error, viz: “Station agents will be responsible for the proper position of all switches on the main track at stations where no yard crews are employed.” There was no yard crew employed at Pilot Point. It being the duty of the station agent to see that switches were in proper position was a circumstance that was proper for the consideration of the jury on the issue of contributory negligence.

8. It was competent to show the rate of speed of other trains passing through Pilot Point. The issue was made that appellee had violated the rules in not having his train under control and running at too great a rate of speed. The evidence conflicted on this issue, and the testimony complained of tended to show the customary rate of other trains, and was a circumstance proper to be considered by the jury in determining whether the published rules of the company relating to having “trains under control” in operating trains at stations had been disregarded sufficiently to constitute a waiver thereof by the management, which was pertinent on the issue of negligence of appellee in violating the rules of the appellant in the operation of the train. Whether the rules had been habitually disregarded by the employes was an issuable fact for the jury, and if the appellant knowingly permitted their nonobservance it is in no attitude to complain of a nonobservance in this case.

9. The evidence warranted a finding that appellant's employes were negligent in leaving the switch open under the circumstances and that appellee was not guilty of contributory negligence.

10. Under the evidence we do not feel warranted in holding that the verdict, though large, was excessive.

11. We find no reversible error in the record, and the judgment is affirmed.



Decided May 10, 1902. 1.-Railway Company-Air Brakes-Degree of Care.

Where the air brakes of a car were sufficient so long as the car was attached to the train, the fact that they were not in such a high degree of efficiency as to stop the car in time to prevent a collision where, by the act of a drunken passenger, the car had been uncoupled from the train while in motion, did not, as matter of law, render the company liable for a resultant injury, but it was for the jury to determine whether such an unauthorized act by a passenger should have been anticipated. 2.-Same.Statute Construed.

The article of the statute requiring a brake and a competent brakeman on the rear coach of trains applies only to mixed trains, and not to those that are exclusively passenger or freight trains. Rev. Stats., art. 4517.

Appeal from Lamar. Tried below before Hon. Ben H. Denton.

T. J. Freeman and Head & Dillard, for appellant.

Dudley & Sturgeon, for appellee.

TEMPLETON, ASSOCIATE JUSTICE.—G. W. Storey sued the Texas & Pacific Railway Company and the Texas Midland Railroad to recover damages on account of personal injuries received by his wife in an accident which occurred on December 20, 1900, at a point on the line of the Texas & Pacific Company about ten miles east of Paris, Texas. jury trial resulted in a judgment against the Texas & Pacific Company, and it has appealed. The Midland Railroad was held not liable.

Mrs. Storey was a passenger on an excursion train en route from Enloe, Texas, to Huntsville, Ala. The coach in which she was riding was carried by the Texas Midland from Enloe to Paris. It was there attached to a train of the Texas & Pacific Company, being the rear coach of said train. Soon after the train left Paris, and while it was in rapid motion, a drunken passenger, in a spirit of recklessness and wantonness, uncoupled the said coach from the rest of the train. This caused the air brakes all over the train to be set automatically. The main part of the train, which consisted of an engine and eleven coaches, stopped sooner than did the coach which had been cut loose and the said coach ran into the cars ahead of it. The shock of the collision threw Mrs. Storey against a seat and injured her.

One of the theories of the plaintiff was that the air brake on the coach in question was defective, and that had the same been in good condition the coach would have been stopped by the automatic action of the air brake before it collided with the cars in front. On this issue the court charged the jury as follows: “If you believe from the evidence before you that the defendant the Texas & Pacific Railway Company's train was not provided with a good and sufficient air brake, or if you find that such air brake so provided on said train, was not in proper working order so that same was operative on the coach in which Mrs. Storey was riding, and you further believe that the failure to so provide said train with a proper air brake, or the failure of the same to operate or properly work, was the proximate cause or one of the proximate causes of her injury, if any, then if you find such to be the facts you will return a verdict for the plaintiff against the Texas & Pacific Company.” The uncontroverted evidence was that the air brake on said coach was in working order and that when the cars were uncoupled the brakes were set automatically on the detached coach. The plaintiff, however, attempted to show that had the air brake been in a higher state of efficiency the coach would have been stopped sooner than the main portion of the train and the collision thereby averted. So long as the coach remained attached to the train, the condition of the air brake did not endanger the safety of the passengers. The equipment of the train was sufficient for the safe operation thereof while the said coach was coupled to the rest of the train. The coupling appliances

provided were sufficient to hold the coach in position. But for the intervening act of the drunken passenger in uncoupling the cars, the accident would not have happened. Unless the company ought to have anticipated the occurring of such an event, it can not be held guilty of negligence on account of the condition of the air brake. Under all circumstances other than those brought about by the unwarranted act of a third person, the air brake was sufficient. The company was not negligent in having the air brake in such condition, unless it should have foreseen that a necessity might arise for having the same in more perfect condition. Such necessity could be created only by the unauthorized act of a stranger, and if there was no reason to apprehend such an act, negligence could not be predicated on the condition of the air brake. It was not necessary, in order to show negligence, that the company should have anticipated the very event which transpired; that the cars would be uncoupled at the time and place and in the manner they were, and by the particular drunken passenger. But it was necessary to show that the company should have foreseen that some such person would, by the same wrongful or negligent act, render the appliances which had been provided for the safety of the train insufficient for that purpose before negligence would be established on the ground that the air brake, otherwise sufficient, was defective. Our conclusion is that the trial court erred in giving the charge under consideration and in refusing to submit to the jury the issue whether the company should have anticipated the happening of an event like that which caused the accident. Railway v. Bigham, 90 Texas, 223; Packet Co. v. White, 41 S. W. Rep. (Tenn.), 583.

Another contention of the appellee is that the hand brake on the coach in question was defective and that there was no brakeman on the said coach; that had the hand brake been in good condition and had a brakeman been present, the accident could have been prevented. On this issue the court instructed the jury, in substance, that if the hand brake was defective and a competent and trustworthy brakeman was not on the said coach, and the accident could have been averted by such brakeman by the use of the hand brake, then the plaintiff was entitled to recover. The charge is evidently based upon article 4517, Revised Statutes, which requires railway companies to provide the rear coach of all trains transporting passengers and merchandise with a good and sufficient brake and to station on such coach a competent and trusty brakeman, and fixing a penalty, recoverable by the State, for a failure to comply with such requirements. The Fort Worth Court of Civil Appeals, in Railway v. Shetler, 58 Southwestern Reporter, 179, and the Austin Court of Civil Appeals in State v. Railway, 4 Texas Court Reporter, 773, have held that this article of the statute applies only to mixed trains transporting both passengers and merchandise, and does not apply to trains carrying either passengers alone or merchandise alone. We concur in the opinions of our sister courts, and conclude,

that as the train in question was a passenger train and not a mixed train, the statute is without application in this case and that the trial court erred in giving said charge.

The judgment as to the Midland Railroad is affirmed. The judgment as to the Texas & Pacific Company is reversed and the cause remanded.

Reversed and remanded.



Decided May 17, 1902.

1.-Appeal-Reversal—Preponderance of Evidence.

The appellate court will not, in a case where the evidence is conflicting, reverse the judgment because the verdict is contrary to the preponderance of the evidence. See evidence not warranting a holding on appeal that the verdict was against the manifest truth of the case. 2.-Evidence-Mortuary Tables.

Where it is shown in an action for personal injuries that plaintiff has been in part permanently disabled in his earning capacity, mortuary tables of life expectancy are admissible in evidence 3.-Contributory Negligence-Charge.

In an action for personal injuries received by a servant, a requested charge that if plaintiff's act in attempting to get on the engine, the steps of which gave way, was negligence under all the circumstances of the case, he could not recover, was properly refused for want of the qualification that the negligence must have contributed to the injury. 4.-Charge of Court_Request-Omission.

Where the court has failed to charge on an issue, the request for a special charge which is incorrect will suffice to call attention to the omission and to require a proper charge on the issue; but where the main charge gives a correct general presentation of the issue, a party desiring a fuller charge thereon must request a correct one, and if, as requested, it be incorrect, the court is not bound to submit a further charge.

Appeal from Johnson. Tried below before Hon. William Poindexter.

J. W. Terry and Ramsey & Odell, for appellant.

S. C. Padelford and Henry, Patton & Brown, for appellee.

RAINEY, CHIEF JUSTICE.—This suit was brought by the plaintiff, A. D. Mangham, in the District Court of Johnson County, Texas, against the defendant, the Gulf, Colorado & Santa Fe Railway Company, for damages resulting from injuries inflicted on him by the negligence of the defendant, which injuries caused him the loss and amputation of his right leg. At the time of the injury plaintiff was in the employ of the defendant as cinder pit and roundhouseman, and on the morning of his injury was ordered by his superior to perform the duties of assistant hostler in carrying the engines from the roundhouse to the depot in Cleburne, and in car

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