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(248 S.W.) "A false statement as to a patient's pres "Question No. 4: Do you find from a preent condition is treated by the courts as a ponderance of the evidence that, at the time of statement of fact, but one made as to a pa- obtaining said release, Charles Brann, the tient's future condition is essentially an ex-claim agent of defendant, knew that such false pression of opinion or prediction as to the fu- representation had been made by said Dr. B. ture. The first may be the basis for a charge F. Stevens, if same was made and same was of fraud, but the second may not."

false, and that plaintiff believed and relied

thereon? Answer 'Yes' or 'No.' Answer: Yes. The petition charges and the court finds

"Question No. 5: Do you find from a preponthat the physician stated that the plaintiff derance of the evidence that such false repre

sentation, if same was made and same false, was not (then) seriously or permanently in

was a material inducement to plaintiff in the jured. This is a statement as to the plain-l execution of the release in question? Answer tif's present condition, relied upon, to the 'Yes' or 'No.' Answer: Yes." extent of being induced thereby to'sign the release, and the jury have found that the The first finding is that the representations statement was false. And there is testimony were made by the physician just prior to the sufficient to support the findings. That the signing of the release, and the fourth is representations were made in good faith, or that the claim agent knew of the false repwhether the claim agent acted in good faith resentations at the time. True, the physician at the time he paid the compromise sum and was not present at the time, but it would seem took the release of future claims, is imma- that these findings as a whole required the terial. Houston & T. C, R, Co. v. Brown cancellation of the release. M., K. & T. Ry. Tex. Civ. App.) 69 S. W. 651; Alenkowsky v. Co. v. Ellison (Tex. Civ. App.) 185 S, W. Texas & N. 0. R. Co. (Tex. Civ App.) 188 s. 1020. W. 956. Innocent misrepresentations of an We conclude that it was not error to refuse existing fact which induce a party to act to submit the question, Did the physician to his disadvantage are the basis of relief make the representations for the purpose of as well as if they had been intentionally inducing the plaintiff to enter into a commade. Pendarvis v. Gray, 41 Tex. 329. So promise settlement? because the findings are it was not error to refuse special charge re sufficient to require judgment for plaintiff, quested by appellant to that effect.

even though it be a fact that the physician Appellant invokes the rule that a false had no such purpose in making the staterepresentation by a railway surgeon as to ments. the physical condition of an injured party [2] The following question is attacked as will not justify the avoidance of a release leading: of damages, where the surgeon had no con

"I will ask you to state whether or not, if nection with the settlement, and the claim you had known that your injuries were serious agent was ignorant that such representations and you would not be well as you ever were and had been made. The jury made a finding to able to work by the 1st of July, 31st of July, the effect that the physician and claim agent you would have executed this release.” did not act together in procuring the release. Howerer, they made the following findings: In I. & G. N. Ry. Co. y. Dalwigh; 92 Tex. "Question No. 1: Do you find from a pre- I tions, the Supreme Court, through Gaines,

655, 51 S. W. 500, in discussing leading quesponderance of the evidence that Dr. B. F. Sterens represented to plaintiff, just prior to

Chief Justice, said: the signing of the release introduced in evi “The rule has, however, been so modified by dence, that the injuries of plaintiff were not this court, so as to hold that a question is not serious or permanent, and that plaintiff would necessarily leading because it admits of a direct be as well as be ever was and able to go to aflirmative or negative answer, but that to work by July 31, 1921? Answer 'Yes' or 'No.' make it objectionable when but a single fact.is Answer: Yes.

sought to be elicited it must also suggest the
"If you answer the foregoing question in the desired answer."
afirmative, then, but not otherwise, answer
this additional question: Question No. 2: Was Appellee relies upon this quoted test.
such representation, if same was made, true That the vice in the question may be fully
or false? Answer by the use of the word portrayed we quote the bill of exceptions,
"False' or 'True,' as you find from the evidence.

as follows:
Answer "False' if you find same was false from
a preponderance of the evidence, otherwise an-

“Q. Now I will ask you to state what, if swer same "True.' Answer: False.

anything, induced you to sign this release? A. "If you have answered question No. 1 in That I wanted to make the trip to Tennessee, the affirmative, and question No. 2 by the use and that I would have my job back when i of the word 'False," then, but not otherwise, was able to go to work, when I returned. answer this additional question: Question No. "Q. Anything else? 3: Did plaintiff, at the time of executing such "Judge Goggin: We object to counsel leads release, believe such false representation, if ing the witness.

"The Court: Overrule the objection. same was made and was false, and rely there

"Q. State to the jury why you signed this on in executing the release? Answer: 'Yes' Or No. Answer: Yes.

release. A. So I would have money to make

the trip on and money to take care of my fam- , last question, by all the preceding questions ily.

they clearly had been, so as to prepare the "Q. I will ask whether or not you relied on witness for the final one made the basis of the statement of Dr. Stevens

the assigninent. For this reason the case "Mr. Brown: We object, before he finishes; must be reversed for a new trial. it is improper. “The Court: I can hardly tell, I didn't hear Bayonsett denied that she had stated to a

[3] Upon cross-examination witness Mrs. the question.

"Judge Goggin: I think there was enough for Mrs. Evans that plaintiff, while riding a the court to have seen it was leading.

horse in Tennessee, had suffered an injury to "The Court: Go ahead and propound the his spine by falling from the horse. Dequestion, but if you propound it in a leading fendant placed Mrs. Evans on the witness form, you won't interrogate him along that line, stand to contradict the witness by testimony further.

that she made the statement. The court sus. "Q. I will ask you to state whether or not tained an objection to the question; this is state again, in detail, why you signed this re

assigned as error. This was not error, be. lease, what induced you to sign it? A. I re

cause the witness would have testified that lied upon Dr. Stevens' statement that would be as well as I ever was and able to go to work he said he had such an accident, and that his by July 31st, and on Mr. Brann's statement spine was injured in some way. The injury that I would have my job when I came back in the instant case is to the hip and ankle, so and was able to go to work.

the matter was collateral and immaterial. "Q. I will ask whether or not, if you had Dooley v. Boiders (Tex. Civ. App.) 128 S. W. known

690. "Judge Goggin: It is manifest that going The next and last proposition is: to be leading. The other was a question he

"The proximate cause of plaintiff's injuries has repeated time and time again, until it became leading. Now he is manifestly going to was not the fact, if a fact, that the eyebolt ask a leading question.

securing the cross-bar was insecurely fastened, “Q. I will ask you to state whether or not, or because of the absence of a cotter key or if you had known that your injuries were se put, but the failure of the plaintiff to release

his hold on the wire when severed, thus allowrious

ing himself to be thrown to the ground by the "Judge Goggin: We except. "Q. And you would not be as well as you ever

weight of the wire." were and able to go to work by the 1st of

This is a question of fact about which, in July, the 31st of July, you would have executed view of another trial, we express no opinion. this release?

Reversed and remanded. "Mr. Brown: We object to that. "The Court: Your ground is it is leading?

“Mr. Brown: Yes, sir; and we except to the asking of the question itself.

"The Court: Overrule the objection. (Erception.)

WICHITA VALLEY RY. CO. V. MEYERS. "A. No, sir; I wouldn't have signed it if I

(No. 10075.) had known I wouldn't have been well and wouldn't have been permitted to go to work.

(Court of Civil Appeals of Texas. Fort Worth. "Q. State whether or not you relied upon

Dec. 2, 1922. Rehearing Denied what Mr. Brann had told you, as well as the

Jan. 20, 1923.) doctor? A. Yes, sir.

1. Railroads 303(1)-Duty to keep right of “Mr. Brown: The same objection and excep

way across public road or street in proper tion.

condition. “The Court: All right; it will be overruled. Go ahead."

It is the duty of a railroad, under both the statute (Rev. St. art. 6494) and the common

law, to keep its roadbed and right of way across It seems clear that by a succession of sug- a public road or street in proper condition and gestive questions the witness was led up to in safe and suitable state of repair for the traythe desired answer, and then by the question eling public. quoted in the assignment all the different

2. Railroads mm 303(1)-Cannot escape duty elements composing plaintiff's charge of of restoring railway at road or street crossfraud in obtaining the compromise and re Ings over which it operates, whether by pur. lease are combined, and by the simple an chase, lease, or otherwise. swer "No" the plaintiff has brought his case Where a railroad is operating its trains within the rules of law which enabled the over the track and road constructed by another jury to find in his favor upon this issue, and railway company, whether by purchase, lease, without which the jury would not have been or otherwise, it cannot escape the duty of rejustified in their findings. So it is not a case storing the railway over which it operates its

cars across any public street or road, and the where a single fact was sought to be elicited- dyty of restoring a road crossing, if it has not by the question, but three ultimate and con- theretofore been restored, devolves upon it trolling facts were called for, and, if in with like force as upon the railroad company fact the answer was not suggested by the originally constructing the road.

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(248 S.W.) 3. Trial 253(9)-Refusal of requested Valley Railway Company, and the Abilene charge restricting issue as to cause of acci- & Northern Railway Company, alleging dent held not erroneous.

them to be partners, for injuries alleged to In an action for injuries caused by the fall- have been sustained by him, and also for ing of a horse upon which plaintiff was riding injuries to the horse which he was riding, on an alleged defective railroad street crossing, the refusal of a charge that the jury by the horse falling with him on the railroad should find for defendant unless they found track of the defendant at a street crossthat plaintiff and his horse were injured by the ing in the city of Abilene, Tex. The plainborse hanging his shoe on a spike projecting tiff alleged that the defendants were negfrom defendant railway's track held not erro- ligent in not properly constructing and mainneous, in view of evidence that accident might taining their track at the crossing in question, have been caused by the general unsafe condi- and in failing to restore the street to its origtion of the crossing.

inal condition, or in such a condition as not 4. Railroads w348(1)-Evidence held suffi- to unnecessarily impair its usefulness, and in cient to support verdict for Injuries on de- failing to construct a crossing at said street fective crossing.

and to repair and maintain the same, but, In an action for injuries to the horse and on the contrary, had permitted said crossrider caused by the fall of the horse on a de- ing to become defective ard out of repair, fective railroad crossing, evidence that only a

thus causing the horse to stumble and fall, portion of the crossing had been properly restored, and that such part could not well be with the resulting injuries set out in the used because of an obstruction, held sufficient record. to sustain a verdict for the plaintiff.

Defendants answered by general and spe

cial exceptions, general denial, a denial of the 5. Trial 233(2)-Reference to pleadings in charge where no issue presented not con partnership alleged, and averred that they tained therein or without evidence to support bad constructed and maintained a crossing It held not error.

on the said street of sufficient width to Where no issue was presented not con:

accommodate the public that might travel tained in the pleadings or without evidence to thereon, and had kept the same in repair; support it, a mere reference in the charge that that the defects complained of by plaintiff the jury in retirement would have the plead- were obvious, and plaintff was guilty of conings to better aid them in understanding the tributory negligence in failing to avoid the issues, but not to consider as evidence, was not same, and in crossing at an unsafe place error, under Rev. St. art. 1957.

when he could have crossed at a place that 6. Negligence "Ordinary care" defined. was safe and in good condition.

"Ordinary care” is that degree of prudence The court instructed the jury to return

that an ordinarily prudent person would exer a verdict for the Abilene & Northern Railcise under the same or similar circumstances.way Company, of which no complaint is

(Ed. Note.-For other definitions, see Words made on this appeal, and submitted the case and Phrases, First and Second Series, Ordi- l as to the Wichita Valley Railway Company nary Care.]

in a general charge. The jury returned a 7. Negligence I"Negligence" defined. verdict in favor of the paintiff for $690,

A definition of “negligence" as a "failure judgment was rendered accordingly, and to exercise ordinary care; it is the doing of from such judgment the Wichita Valley Railthat which an ordinarily prudent person would way Company has duly appealed. Dot do in the same or similar circumstances;

The principal questions presented on this or it is the failure to do that which an ordi- appeal are those arising upon the objections narily prudent person would do in the same or similar circumstances," was correct, and not to the following clause of the court's charge, objectionable for use of "prudence" instead to wit: of "care."

"Now as the law applicable to this case, I (Ed. Note.-For other definitions, see Words give you in charge the following: That if the and Phrases, First and Second Series, Negli- streets in the city of Abilene were in existence gence.)

prior to the construction of the defendant's line

of railway, you are instructed that the deAppeal from District Court, Taylor Coun- fendants had the right to construct their railty; W. R. Ely, Judge.

way along and across said streets, but it was

their duty to restore said streets to their forSuit by H. E. Meyers against the Wichita mer state, or to such a state as to not necesValley Railway Company another. sarily impair their usefulness, and to keep the From a judgment for plaintiff, the named crossing where said railroad crossed said defendant appeals. Affirmed.

streets, in repair, and failure to perform this

duty would be pegligence. It was the duty of Kirby, King & Keeble and Harry Tom the defendants to put said streets in such con King, all of Abilene, for appellant.

dition as the use of the same by the public E. M. Overshiner, of Abilene, for appellee. would not be materially interfered with, nor

the streets rendered less safe or convenient for CONNOR, C. J. The appellee, H. E. Mey- persons passing over them, except in so far as ers, instituted this suit against the Wichita) the diminished safety or convenience are un

Bmw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

avoidable from any crossing of a railroad. “It is not sufficient for a railroad company And this duty is not discharged by restoring properly to construct a crossing and to restore said street for only a part of its width if there- the highway crossed to a proper condition: by the usefulness of said street is unnecessarily but it is the duty of the company subsequently impaired.”

to keep and maintain the crossings in a safe

and suitable state of repair, including not only The court further charged the jury that the crossing of the tracks, but also the apa failure to observe the duties required by proaches thereto. This is a common-law duty.” the law as thus given would constitute negligence, etc. The charge was objected to

[2] And it was held by our Supreme Court upon the grounds, in substance, that the in the case of Railway Company v. Morris, evidence showed that the line of railway 67 Tex. 692, 4 S. W. 156, that a corporation had been constructed by the Abilene & North- organized for public purposes cannot, except ern Railway Company, and not by the with the consent of the political authority Wichita Valley Railway Company, which was which created it, render itself incapable of only operating the line, and therefore not performing its corporate duties to the pubcharged under the law with the duty of re- lic, whether this be attempted by contract storing the roadbed, crossings, etc. The in- of lease, sale, or otherwise. To the same sistence is that in so charging the court effect is the decision in the case of Railway charged upon an issue not raised by the Company v. Morris & Crawford, 68 Tex, 49, evidence, in that, as stated, there was no 3 S. W. 457. evidence that "showed that the defendant, The record fails to disclose the character the Wichita Valley Railway Company, built of right, if any, under which the Wichita the line of railway along the street as com-, Valley Railway Company is operating its plained of by the plaintiff."

trains over the track and road constructed Article 6481, Rev. Statutes, provides that: by the Abilene & Northern Railway Com“Any railroad corporation shall have the pany; but, whatever may be the right acright to construct and operate a railroad be- quired, whether by purchase, lease, or othertween any points within this state and to con- wise, it cannot escape the duty of restoring nect at the state line with railroads of other the railway over which it operates its cars states."

across any public street or road. The duty

to so restore a road crossing, if it has not Article 6485 provides that:

theretofore been restored, devolves upon it "Such corporation shall have the right to with like force as upon the railroad comconstruct its road across, along, or upon any pany originally constructing the railroad. stream of water, water course, street, highway, it is so said, in effect, in 33 Cyc. p. 280. The plank road, turnpike, or canal which the route author there says: of said railway shall intersect or touch; but such corporation shall restore the stream, wa

*The duty of restoring, maintaining, and reter course, street, highway, plank road, turn- pairing highways crossed by a railroad is a pike, or canal thus intersected or touched condition inseparable from the right to cross, to its former state, or to such state as not to and attaches to whatever person or company unnecessarily impair its usefulness, and shall exercises the franchise, and is therefore bindo keep such crossing in repair.”

ing upon the successors of the company by

which the crossing was originally effected, inArticle 6194 reads:

cluding purchasers at judicial sales. This duty

is not affected by the fact that the railroad "It shall be the duty of every railroad com

company may be insolvent and in the hands of pany in this state to place and keep that por a receiver, or the fact that a street railroad tion of its roadbed and right of way over or company whose tracks run along the highway across which any public county road may run, is also under obligation to keep the higbway in proper condition for the use of the travel between the rails of its tracks in repair; nor ing public; and, in case of its failure to do so does the fact that the charter of the railroad for thirty days after written notice given to company imposes certain requirements as to the section boss

where such work or crossings prevent the application of general repairs are needed by the overseer of such pub- statutory provisions not inconsistent therewith, lic road, it shall be liable to a penalty of ten or, in the absence of a contrary intention, exdollars for each and every week such railroad press or implied, affect any common-law duties company may fail or neglect to comply with of the railroad company in this regard.” the requirements of this article, recoverable in any court having jurisdiction of the amount in Our Supreme Court in the case of G., C. volved in a suit in the name of the county in & S. F. Ry. Co. v. Newell, 73 Tex. 334, 11 which the cause of action accrued."

S. W. 342, 15 Am. St. Rep. 788, in speaking

on this subject declared: [1] The duty of the railroad company to keep its roadbed and right of way across a

"If its charter imposes upon it (the railroad) public road or street in proper condition for obligations and responsibilities continuous in the use of the traveling public, as prescribed their nature, in the discharge of which individby article 6494, is in accord with the decisions an interest, then such duties and obligations

uals, as distinguished from the public, bare generally. See 33 Cyc. 273, par. C. It is rest upon it in the hands of whomisoever may

as

(248 S.W.) chise; and such subsequent owner would be , ciently supported by the evidence. It is bound by any covenant running with the prop- true the evidence shows that at the crossing erty purchased."

in question some 14 feet of the roadbed had Other authorities to the same effect might been restored and was reasonably safe for be quoted. but we think it apparent from the the passage of travelers, and that, had apvery nature of the subject that the duty of pellee chosen to cross upon such restored the appellant in this case to restore and part of the street, he might have avoided the

But it further apmaintain its highway across the street in injury that occurred. question rested upon it with like force as pears that the restored portion of the crossupon the Abilene & Northern Railway Com- ing could not well be used, and was not pang, which constructed the road. It would used, by the traveling public because of an be unreasonable and impracticable to hold obstruction which rendered it reasonably that it could escape liability to its own pas- necessary for travelers to detour from the sengers or to others having a right to use the restored portion of the crossing over and crossing for a failure to so do merely because along that part of the track and crossing of the construction of the railroad by some which had been left exposed, uncovered, and person or corporation other than that of with projecting spikes, and the evidence the person or corporation actually operating showed that at the time of the fall of apthe line. No reversible error, therefore, was pellee's horse he was immediately upon that committed by the court in charging the jury portion of the traveled way used by the that it was the duty of the appellant com- public.

[5] A further contention of error is predipany to so restore and maintain the crossing in question as to not unnecessarily impair cated upon an assignment objecting to that its usefulness and safety.

portion of the court's charge which instructed (3) For like reasons the court properly re

the jury thus: fused the special instruction of the appellant

"In your retirement you will have the pleadwhich eliminated from the consideration ings of the plaintiff and the defendants with of the jury the question of the failure of the you, to better aid you in understanding the isappellant to restore the street in question sues, but, you cannot consider the same

evidence." to its original condition, or in such condition as not to necessarily impair its usefulness.

It has been held to constitute reversible Nor do we think there was error in refusing error to refer the jury to the pleadings to appelant's special charge to the effect that ascertain the issues in cases where the the jury should find for the defendant unless pleadings contained several grounds of negthey found from the evidence that plaintiff ligence, of which one or more were without and his horse were injured by the horse evidence to support them. But in this case hanging bis shoe on a spike projecting from the court distinctly submitted the issues of the defendant's railway track. While it is negligence presented by the plaintiff's petitrue that there was evidence tending to show tion, and those issues are supported by the that the injury thus occurred, and the appel- | evidence, and no issue was presented not Tee himself so stated in a writing signed contained in the pleadings or without eviby him soon after the injury, yet there was dence to support it. Under such circumevidence also tending to show that it might stances, a mere reference to the pleadings as have occurred by reason of the general un contained in the charge cannot reasonably safe condition of the crossing.

be held to constitute reversible error.

Several witnesses testified to the effect that at the

Article 1957, Rev. Statutes, reads, so far crossing as used by the public generally the

as pertinent: ties were left uncovered and exposed, with "The jury may take with them in their retireone or more spikes projecting. Appellee also ment the charges and instructions in the cause, testified to the effect that his horse stumbled the pleadings and any written evidence, except and fell upon him, and, while he thought

depositions of witnesses." the cause of his fall was from the hoof of The legislative purpose in so enacting bis horse being caught in a projecting spike, seems difficult of explanation upon any other nevertheless at the time he was so badly theory than that it would not be improper hurt he was not certain of this. And we for the jury to refer to pleadings in order, think it was for the jury, under all of the as the court charged, to better understand circumstances, to weigh the evidence and de- the issues. At all events, under the circumtermine therefrom what caused the fall, and stances of this case, as before stated, we appellant did not have the right to have the find no error in the charge of the court in issue restricted as sought by the charge. this respect.

14] We also think that the court's charge [6,7] Nor do we find error in the court's on the issue of appellee's alleged contribu- definition of "ordinary care.” The charge tory negligence was sufficiently comprehen- was: sire

, and sufficiently guarded appellant's " "Ordinary care' is that degree of prudence rights

, and further, that the verdict of the that an ordinarily prudent person would exerjury in appellee's favor on this issue is suffi- cise under the same or similar circumstances."

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