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(248 S.W.)

"A false statement as to a patient's present condition is treated by the courts as a statement of fact, but one made as to a patient's future condition is essentially an expression of opinion or prediction as to the future. The first may be the basis for a charge of fraud, but the second may not."

"Question No. 4: Do you find from a preponderance of the evidence that, at the time of obtaining said release, Charles Brann, the claim agent of defendant, knew that such false representation had been made by said Dr. B. F. Stevens, if same was made and same was false, and that plaintiff believed and relied thereon? Answer 'Yes' or 'No.' Answer: Yes. "Question No. 5: Do you find from a preponThe petition charges and the court finds that the physician stated that the plaintiff derance of the evidence that such false reprewas not (then) seriously or permanently in-sentation, if same was made and same false, was a material inducement to plaintiff in the jured. This is a statement as to the plain-execution of the release in question? Answer tiff'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 statement was false. And there is testimony sufficient to support the findings. That the representations were made in good faith, or whether the claim agent acted in good faith at the time he paid the compromise sum and took the release of future claims, is immaterial. Houston & T. C. R. Co. v. Brown (Tex. Civ. App.) 69 S. W. 651; Alenkowsky v. Texas & N. O. R. Co. (Tex. Civ App.) 188 S. W. 956. Innocent misrepresentations of an existing fact which induce a party to act to his disadvantage are the basis of relief as well as if they had been intentionally made. Pendarvis v. Gray, 41 Tex. 329. So it was not error to refuse special charge requested by appellant to that effect.

Appellant invokes the rule that a false representation by a railway surgeon as to the physical condition of an injured party will not justify the avoidance of a release of damages, where the surgeon had no connection with the settlement, and the claim agent was ignorant that such representations had been made. The jury made a finding to the effect that the physician and claim agent did not act together in procuring the release. However, they made the following findings:

"Question No. 1: Do you find from a preponderance of the evidence that Dr. B. F. Stevens represented to plaintiff, just prior to the signing of the release introduced in evidence, that the injuries of plaintiff were not serious or permanent, and that plaintiff would be as well as he ever was and able to go to work by July 31, 1921? Answer 'Yes' or 'No.' Answer: Yes.

"If you answer the foregoing question in the affirmative, then, but not otherwise, answer this additional question: Question No. 2: Was such representation, if same was made, true or false? Answer by the use of the word 'False' or 'True,' as you find from the evidence. Answer False' if you find same was false from a preponderance of the evidence, otherwise answer same "True.' Answer: False.

"If you have answered question No. 1 in the affirmative, and question No. 2 by the use of the word 'False,' then, but not otherwise, answer this additional question: Question No. 3: Did plaintiff, at the time of executing such release, believe such false representation, if same was made and was false, and rely thereon in executing the release? Answer: 'Yes' or 'No.' Answer: Yes.

The first finding is that the representations were made by the physician just prior to the signing of the release, and the fourth is that the claim agent knew of the false representations at the time. True, the physician was not present at the time, but it would seem that these findings as a whole required the cancellation of the release. M., K. & T. Ry. Co. v. Ellison (Tex. Civ. App.) 185 S. W. 1020.

We conclude that it was not error to refuse to submit the question, Did the physician make the representations for the purpose of inducing the plaintiff to enter into a compromise settlement? because the findings are sufficient to require judgment for plaintiff, even though it be a fact that the physician had no such purpose in making the statements.

[2] The following question is attacked as leading:

"I will ask you to state whether or not, if you had known that your injuries were serious and you would not be well as you ever were and able to work by the 1st of July, 31st of July, you would have executed this release."

In I. & G. N. Ry. Co. v. Dalwigh; 92 Tex. 655, 51 S. W. 500, in discussing leading questions, the Supreme Court, through Gaines, Chief Justice, said:

"The rule has, however, been so modified by this court, so as to hold that a question is not necessarily leading because it admits of a direct affirmative or negative answer, but that to make it objectionable when but a single fact is sought to be elicited it must also suggest the desired answer."

Appellee relies upon this quoted test. That the vice in the question may be fully portrayed we quote the bill of exceptions, as follows:

"Q. Now I will ask you to state what, if anything, induced you to sign this release? A. That I wanted to make the trip to Tennessee, and that I would have my job back when I was able to go to work, when I returned. "Q. Anything else?

"Judge Goggin: We object to counsel leading the witness.

"The Court: Overrule the objection.

"Q. State to the jury why you signed this 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 witness for the final one made the basis of the assignment. For this reason the case must be reversed for a new trial.

"Q. I will ask whether or not you relied on the statement of Dr. Stevens

"Mr. Brown: We object, before he finishes; it is improper.

"The Court: I can hardly tell, I didn't hear the question.

"Judge Goggin: I think there was enough for the court to have seen it was leading.

"The Court: Go ahead and propound the question, but if you propound it in a leading form, you won't interrogate him along that line further.

Bavonsett denied that she had stated to a [3] Upon cross-examination witness Mrs. Mrs. Evans that plaintiff, while riding a horse in Tennessee, had suffered an injury to his spine by falling from the horse. Defendant placed Mrs. Evans on the witness stand to contradict the witness by testimony 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. lease, what induced you to sign it? A. I relied upon Dr. Stevens' statement that I would be as well as I ever was and able to go to work by July 31st, and on Mr. Brann's statement that I would have my job when I came back and was able to go to work.

"Q. I will ask whether or not, if you had known

"Judge Goggin: It is manifest that is going to be leading. The other was a question he has repeated time and time again, until it became leading. Now he is manifestly going to

ask a leading question.

"Q. I will ask you to state whether or not, if you had known that your injuries were serious

"Judge Goggin: We except.

"Q. And you would not be as well as you ever were and able to go to work by the 1st of July, the 31st of July, you would have executed

this release?

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It seems clear that by a succession of suggestive questions the witness was led up to the desired answer, and then by the question quoted in the assignment all the different elements composing plaintiff's charge of fraud in obtaining the compromise and release are combined, and by the simple answer "No" the plaintiff has brought his case within the rules of law which enabled the jury to find in his favor upon this issue, and without which the jury would not have been justified in their findings. So it is not a case where a single fact was sought to be elicited by the question, but three ultimate and controlling facts were called for, and, if in fact the answer was not suggested by the

This was not error, because the witness would have testified that he said he had such an accident, and that his spine was injured in some way. The injury in the instant case is to the hip and ankle, so the matter was collateral and immaterial. Dooley v. Boiders (Tex. Civ. App.) 128 S. W. 690.

The next and last proposition is:

"The proximate cause of plaintiff's injuries was not the fact, if a fact, that the eyebolt securing the cross-bar was insecurely fastened, or because of the absence of a cotter key or nut, but the failure of the plaintiff to release his hold on the wire when severed, thus allowing himself to be thrown to the ground by the weight of the wire."

This is a question of fact about which, in view of another trial, we express no opinion.

Reversed and remanded.

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2. Railroads

303 (1)-Cannot escape duty

of restoring railway at road or street crossIngs over which it operates, whether by purchase, lease, or otherwise.

Where a railroad is operating its trains over the track and road constructed by another railway company, whether by purchase, lease, or otherwise, it cannot escape the duty of restoring the railway over which it operates its cars across any public street or road, and the drty of restoring a road crossing, if it has not theretofore been restored, devolves upon it with like force as upon the railroad company originally constructing the road.

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

3. Trial 253 (9)-Refusal
charge restricting issue as to cause of acci-
dent held not erroneous.

1

(248 S. W.) of requested Valley Railway Company, and the Abilene & Northern Railway Company, alleging 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 plainhorse 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 have been caused by the general unsafe condition of the crossing.

4. Railroads 348 (1)—Evidence held sufficient to support verdict for injuries on defective crossing.

In an action for injuries to the horse and rider caused by the fall of the horse on a defective railroad crossing, evidence that only a portion of the crossing had been properly restored, and that such part could not well be used because of an obstruction, held sufficient to sustain a verdict for the plaintiff.

5. Trial ——233(2)-Reference to pleadings in charge where no issue presented not contained therein or without evidence to support

It held not error.

Where no issue was presented not contained in the pleadings or without evidence to support it, a mere reference in the charge that the jury in retirement would have the pleadings to better aid them in understanding the issues, but not to consider as evidence, was not error, under Rev. St. art. 1957.

6. Negligence 4-"Ordinary care" defined. "Ordinary care" is that degree of prudence that an ordinarily prudent person would exercise under the same or similar circumstances. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]

7. Negligence "Negligence" defined.

A definition of "negligence" as a "failure to exercise ordinary care; it is the doing of that which an ordinarily prudent person would not do in the same or similar circumstances;

or it is the failure to do that which an ordinarily prudent person would do in the same or similar circumstances," was correct, and not objectionable for use of "prudence" instead of "care."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Negligence.]

taining their track at the crossing in question, and in failing to restore the street to its original condition, or in such a condition as not to unnecessarily impair its usefulness, and in failing to construct a crossing at said street and to repair and maintain the same, but, on the contrary, had permitted said crossing to become defective and out of repair, thus causing the horse to stumble and fall, with the resulting injuries set out in the record.

Defendants answered by general and special exceptions, general denial, a denial of the partnership alleged, and averred that they had constructed and maintained a crossing

on the said street of sufficient width to accommodate the public that might travel thereon, and had kept the same in repair; that the defects complained of by plaintiff were obvious, and plaintff was guilty of contributory negligence in failing to avoid the same, and in crossing at an unsafe place when he could have crossed at a place that was safe and in good condition.

The court instructed the jury to return a verdict for the Abilene & Northern Railway Company, of which no complaint is made on this appeal, and submitted the case as to the Wichita Valley Railway Company in a general charge. The jury returned a verdict in favor of the plaintiff for $690, judgment was rendered accordingly, and from such judgment the Wichita Valley Railway Company has duly appealed.

The principal questions presented on this appeal are those arising upon the objections to the following clause of the court's charge, to wit:

"Now as the law applicable to this case, I give you in charge the following: That if the streets in the city of Abilene were in existence prior to the construction of the defendant's line of railway, you are instructed that the de

Appeal from District Court, Taylor Coun- fendants had the right to construct their railty; W. R. Ely, Judge.

Suit by H. E. Meyers against the Wichita Valley Railway Company and another. From a judgment for plaintiff, the named defendant appeals. Affirmed.

way along and across said streets, but it was their duty to restore said streets to their former state, or to such a state as to not necessarily impair their usefulness, and to keep the crossing where said railroad crossed said streets, in repair, and failure to perform this duty would be negligence. 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 CONNER, 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

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 thereby the usefulness of said street is unnecessarily impaired."

The court further charged the jury that a failure to observe the duties required by the law as thus given would constitute negligence, etc. The charge was objected to upon the grounds,. in substance, that the evidence showed that the line of railway had been constructed by the Abilene & Northern Railway Company, and not by the Wichita Valley Railway Company, which was only operating the line, and therefore not charged under the law with the duty of restoring the roadbed, crossings, etc. The insistence is that in so charging the court charged upon an issue not raised by the evidence, in that, as stated, there was no evidence that "showed that the defendant, the Wichita Valley Railway Company, built the line of railway along the street as complained of by the plaintiff."

the highway crossed to a proper condition: but it is the duty of the company subsequently to keep and maintain the crossings in a safe and suitable state of repair, including not only the crossing of the tracks, but also the approaches thereto. This is a common-law duty."

[2] And it was held by our Supreme Court in the case of Railway Company v. Morris, 67 Tex. 692, 4 S. W. 156, that a corporation organized for public purposes cannot, except with the consent of the political authority which created it, render itself incapable of performing its corporate duties to the public, whether this be attempted by contract of lease, sale, or otherwise. To the same effect is the decision in the case of Railway Company v. Morris & Crawford, 68 Tex. 49, 3 S. W. 457.

The record fails to disclose the character of right, if any, under which the Wichita Valley Railway Company is operating its 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 states."

Article 6485 provides that:

"Such corporation shall have the right to construct its road across, along, or upon any stream of water, water course, street, highway, plank road, turnpike, or canal which the route of said railway shall intersect or touch; but such corporation shall restore the stream, water course, street, highway, plank road, turnpike, or canal thus intersected or touched to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair."

Article 6494 reads:

the railway over which it operates its cars across any public street or road. The duty to so restore a road crossing, if it has not theretofore been restored, devolves upon it with like force as upon the railroad company originally constructing the railroad. It is so said, in effect, in 33 Cyc. p. 280. The author there says:

"The duty of restoring, maintaining, and repairing highways crossed by a railroad is a condition inseparable from the right to cross, and attaches to whatever person or company exercises the franchise, and is therefore binding upon the successors of the company by which the crossing was originally effected, including purchasers at judicial sales. This duty is not affected by the fact that the railroad "It shall be the duty of every railroad comcompany may be insolvent and in the hands of pany in this state to place and keep that pora 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 highway 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 involved in a suit in the name of the county in which the cause of action accrued.”

**

[1] The duty of the railroad company to keep its roadbed and right of way across a public road or street in proper condition for the use of the traveling public, as prescribed by article 6494, is in accord with the decisions generally. See 33 Cyc. 273, par. C. It is there said:

Our Supreme Court in the case of G., C. & S. F. Ry. Co. v. Newell, 73 Tex. 334, 11 S. W. 342, 15 Am. St. Rep. 788, in speaking on this subject declared:

"If its charter imposes upon it [the railroad] obligations and responsibilities continuous in uals, as distinguished from the public, have their nature, in the discharge of which individan interest, then such duties and obligations rest upon it in the hands of whomsoever may become the owner of its property and fran

(248 S. W.)

chise; and such subsequent owner would be bound by any covenant running with the property purchased."

Other authorities to the same effect might be quoted, but we think it apparent from the very nature of the subject that the duty of the appellant in this case to restore and maintain its highway across the street in question rested upon it with like force as upon the Abilene & Northern Railway Company, which constructed the road. It would be unreasonable and impracticable to hold that it could escape liability to its own passengers or to others having a right to use the crossing for a failure to so do merely because of the construction of the railroad by some person or corporation other than that of the person or corporation actually operating the line. No reversible error, therefore, was committed by the court in charging the jury that it was the duty of the appellant company to so restore and maintain the crossing in question as to not unnecessarily impair its usefulness and safety.

ciently supported by the evidence. It is true the evidence shows that at the crossing in question some 14 feet of the roadbed had been restored and was reasonably safe for the passage of travelers, and that, had appellee chosen to cross upon such restored part of the street, he might have avoided the injury that occurred. But it further appears that the restored portion of the crossing could not well be used, and was not used, by the traveling public because of an obstruction which rendered it reasonably necessary for travelers to detour from the restored portion of the crossing over and along that part of the track and crossing which had been left exposed, uncovered, and with projecting spikes, and the evidence showed that at the time of the fall of appellee's horse he was immediately upon that portion of the traveled way used by the

public.

[5] A further contention of error is predicated upon an assignment objecting to that portion of the court's charge which instructed the jury thus:

"In your retirement you will have the pleadings of the plaintiff and the defendants with you, to better aid you in understanding the issues, but you cannot consider the same as

evidence."

[3] For like reasons the court properly refused the special instruction of the appellant which eliminated from the consideration of the jury the question of the failure of the appellant to restore the street in question 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 appellant'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 his 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 lee 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. Several wit-be held to constitute reversible error. nesses testified to the effect that at the

crossing as used by the public generally the ties were left uncovered and exposed, with one or more spikes projecting. Appellee also testified to the effect that his horse stumbled and fell upon him, and, while he thought the cause of his fall was from the hoof of his horse being caught in a projecting spike, nevertheless at the time he was so badly hurt he was not certain of this. And we think it was for the jury, under all of the circumstances, to weigh the evidence and determine therefrom what caused the fall, and appellant did not have the right to have the issue restricted as sought by the charge.

[4] We also think that the court's charge on the issue of appellee's alleged contributory negligence was sufficiently comprehensive, and sufficiently guarded appellant's rights, and. further, that the verdict of the jury in appellee's favor on this issue is suffi

Article 1957, Rev. Statutes, reads, so far

as pertinent:

"The jury may take with them in their retirement the charges and instructions in the cause, the pleadings and any written evidence, except depositions of witnesses."

The legislative purpose in so enacting seems difficult of explanation upon any other theory than that it would not be improper for the jury to refer to pleadings in order, as the court charged, to better understand the issues. At all events, under the circumstances of this case, as before stated, we find no error in the charge of the court in this respect.

[6, 7] Nor do we find error in the court's definition of "ordinary care." The charge was:

"Ordinary care' is that degree of prudence that an ordinarily prudent person would exercise under the same or similar circumstances."

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