
    GULF, C. & S. F. RY. CO. v. STEWART.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.
    Rehearing Denied March 14, 1914.)
    1. Carriers (§ 320) — Actions for Injuries— Questions for Jury.
    In an action for injuries sustained while traveling on a freight train with a car of cattle, evidence held sufficient to justify the submission of the question as to unnecessarily checking or jerking the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217. 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    2. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for injuries sustained, while traveling on a freight train with a car of cattle, an instruction that, unless defendant’s employes negligently caused the train to suddenly and unnecessarily check up or jerk, thereby causing the injury, to find for defendant, that if the jury believed that plaintiff voluntarily entered the cattle car with the intention of ré-maining therein and working with the cattle while the train was running, that he thereby assumed the risk ordinarily incident to riding in such car, or if such conduct on his part was negligence proximately causing or contributing to his injuries, or that he was injured by being butted by a calf and not by negligent jerking of the train, if any, to find for defendant, and that if plaintiff did voluntarily go into the car with the intention of riding there and working with the cattle while the train was running, he thereby assumed the risks ordinarily incident to riding in that way, but did not assume the' risk of the negligence, if any. of defendant’s employés, was not on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    3. Trial (§ 244) — Instructions—Emphasizing Issues.
    Such instruction was not erroneous as placing too great emphasis on the question of negligence in handling the train.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    4. Trial (§ 296) — Instructions—Confused or Misleading Instructions.
    While the first part of such instruction was somewhat confused as to whether the court intended to permit the jury to determine whether it was negligence for plaintiff to ride in the cattle car, the latter part of the charge told the jury that such conduct was negligence, and this apparent discrepancy was harmless.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig.: § 296.]
    
      5. Trial (§ 253) — Instructions—Ignoring Issues.
    An instruction, to find for plaintiff under certain circumstances, unless the jury found for defendant “under other instructions herein given,” was not erroneous as precluding the consideration of the affirmative defenses presented in the special charges given at defendant’s request, as “herein given” included all. of the court’s charge, whether main or special, for the defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    6. -Carriers (§ 345) — Injury to Person Ac-
    ■ COMPANYING STOCK — CONTRIBUTORY NEGLIGENCE — EVIDENCE.
    In an action for injuries - sustained while traveling on a freight train with a car of cattle, where plaintiff pleaded a custom with defendant’s road to ride in the cattle car while defendant, though it pleaded contributory negligence, did not plead the provision of the contract of transportation, requiring plaintiff to remain in the caboose when the train was in motion, evidence that plaintiff had frequently traveled with freight trains which were transporting his cattle, and that it was his custom to get into the car when the train was stopped to get the cattle up, and to ride therein to the next station if the train started without waiting for him to get out, was properly admitted, and the court did not err in submitting this question of custom, and in refusing to charge that if plaintiff’s act in riding in the cattle ear was the proximate cause of his injury, he could not recover.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1400; Dec. Dig. § 345.]
    7. Evidence (§ 364) — Private Writings— Mortality Tables.
    In an action for personal injuries, a standard mortality table, used generally for years by reputable life insurance companies, was properly admitted to show plaintiff’s life expectancy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1520; Dee. Dig. § 364.]
    8. Evidence (§ 558) — Experts—Cross-examination — Irrelevant Matters.
    In an action against a railroad company for personal injuries, a question on the cross-examination of a physician, who had testified frequently for plaintiff in similar suits against railroad companies as to his custom relative to proportioning his fees for services to the amount of recovery, was properly excluded; the witness’ custom in other cases being immaterial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. § 558.]
    9. Trial (§ 260) — Instructions—Requests— Matters Covered by Those Given.
    In an action for injuries sustained while riding on a freight train with a car of cattle, a requested instruction to find for defendant if its servants operated the train in such manner and with such movements as men of ordinary caution and prudence would have used was sufficiently embraced in the court’s main charge, by which, in order to find for plaintiff, a finding was required that defendant’s servants suddenly and unexpectedly checked and jerked the train with unusual and unnecessary violence, and that this was negligence proximately causing the injury, and a finding for defendant was required unless its employes negligently caused the train suddenly and unnecessarily to check up and jerk, and by which ordinary care, negligence, and proximate cause were defined.
    . [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10. Appeal and Error (§ 1068) — Harmless Error — Refusal of Instructions.
    In an action for personal injuries, the refusal of an instruction not to allow compensation for a hernia if it could have been cured by a surgical operation, and if a man of ordinary caution and prudence would have had such operation performed, was harmless, where there was no complaint that the verdict was excessive, as it could have affected only the amount of the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    11. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    The erroneous admission of evidence did not require a reversal, where the evidence was not of such a nature as to affect the result of the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Olin W. Stewart against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Evans & Carpenter, of Greenville, for appellee.
    
      
      For other oases see same topic and section. NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   RAINEY, C. J.

Appellee brought this suit against appellant to recover damages for personal injuries while he was traveling on a freight train with a car of cattle. The allegations of plaintiff’s petition are, in effect, that while traveling on a freight train with a ear of cattle, and while in the car with the train in motion, attempting to get some of the cattle on their feet, those in charge of said train negligently and carelessly stopped or jerked the same suddenly and unexpectedly, and with unusual violence, and threw the plaintiff down and backward against the end of the car, throwing a calf against him as the result of which he received serious and permanent injuries. Defendant answered by general denial, and specially, “that as the plaintiff was traveling upon free transportation on his undertaking to look after the cattle while in transit, and upon a contract which exempted the defendant from the care of the cattle while in transit, and by the terms of which the plaintiff assumed upon his own initiative to look after the cattle; that, he being an experienced shipper and having often traveled on cars loaded with cattle, he assumed the risk of the danger in entering or remaining in the car loaded with cattle while in motion; that he did not request defendant’s employés to hold the train still while he looked after the stock; that the cattle were wild and unruly, which fact was known to plaintiff. The train was handled carefully. Riding on freight trains is necessarily rougher than on passenger trains, and more danger incident thereto, all of which was well known to the plaintiff!; if lie bad suffered bernia as result of entering this car, tbat be could and would with tbe exercise of ordinary care and tbe employment of competent surgeons bave bad tbe same entirely cured, but tbat. be bad negligently failed to bave tbe same treated, and tbat in this regard he was guilty of negligence.” Tbe result of tbe trial was a verdict and judgment for appellee, from which this appeal is taken.

Tbe appellant was transporting a car of cattle for appellee under a shipping contract, wherein appellee was to be transported with tbe shipment, and be was to care for and look after tbe cattle en route,- but was to remain in tbe caboose when the train was moving. When Coleman Junction was reached some of tbe cattle were down, and appellee went into tbe car to get them up. Tbe train started before be bad gotten all of them up, and be did not succeed in getting them up before reaching Valeria, tbe next station. He then got out of tbe cattle car and went back to get a drink of water, when be told tbe conductor tbat be was going back in tbe cattle car, and asked him to tell tbe engineer to handle his train lighter. He went back into the cattle car, when there were two or three yearlings down, after tbe train left Valeria, and while it was running and appellee still working to get the cattle all up; tbe train was running rapidly, and suddenly came to a momentary stop with such violence as to throw appellee against tbe ear and one of tbe cattle against him with such force as to produce hernia. In describing tbe stop the witness said: “When the jerk came while I was in tbe car it was like as if tbe engineer had put his brakes on; I don’t know what be did, but there was a kinder quick, sudden jerk, stop, and tbe cars bumped and dashed me against tbe end of tbe car and the cattle all came tbat way, towards the front end of the car and towards me. In my experience in riding on freight trains with cattle I never rode on a freight train tbat stopped as quick as tbat one did, and with such an unusual jerk. I do not mean tbat it came to a dead stop; it was running pretty tolerable fast, and it just stopped kinder for a second, kinder crashed on tbe couplings and popped, and then moved on again. It was a very violent jerk, it bad this much force about it. I was stooping over and bad tbe young calf by the bead, and tbe jerk bad force enough to dash me against tbe end of tbe car and it threw tbe largest yearling in all tbe 60, bead against tbe end of tbe car, and be did not get up again, his shoulder was broken or dislocated. I do not know whether it was broken or dislocated — I am no veterinary surgeon — but be could not walk any more, they bad to drag him out of tbe car at San Angelo, and be bad been standing up until tbe sudden jerk threw him against tbe end of the car. After tbat we continued our journey to San Angelo.” It was customary for attendants on tbe trips to remain in tbe cattle cars when necessary to get tbe cattle up while tbe train was moving.

Tbe first error assigned is to tbe giving of tbe fifth paragraph of tbe court’s charge, which reads: “Unless you believe from tbe evidence tbat tbe defendant’s employe negligently caused tbe train upon which plaintiff was riding to suddenly and unnecessarily check up or jerk, and thereby caused tbe injury complained of by plaintiff, you will find for tbe defendant; and, if you believe from tbe evidence tbat plaintiff voluntarily entered said car at Valeria with the intention of remaining therein and working with tbe cattle while tbe -train was running, that be thereby assumed tbe risk ordinarily incident to riding in tbat way, or if you find tbat such conduct on bis part, if any, was negligence which proximately caused or contributed to bis injuries, or tbat plaintiff was injured by being butted in tbe abdomen by a calf tbat was down in said car, and which be was trying to get up while tbe train was running, and not by negligent jerking of tbe train, if any, you will find for defendant. In this connection I instruct you tbat if plaintiff did voluntarily go into said car with tbe intention of riding there and working with bis cattle while tbe train was running, be thereby assumed tbe risks ordinarily incident to riding in tbat way, but be did not assume the risk of tbe negligence, if any, of defendant’s employés.” It is urged that this charge is on tbe weight of the evidence, in that there was no evidence that tbe ear in which the plaintiff was riding was. unnecessarily checked up or jerked. Tbe evidence of plaintiff as to tbe jerking, etc., of the train warranted a charge on this issue, and the court did not infringe upon tbe rule by charging on tbe weight of tbe evidence.

Nor do we think tbe court erred in repeating or placing too great emphasis upon tbe question of negligence in handling tbe train. On tbe proposition tbat tbe fifth paragraph of tbe charge was confusing and misleading in telling tbe jury in tbe first part of tbe charge, in effect, tbat whether riding in tbe cattle car was negligence, was a question for their determination, and in tbe last paragraph submitting it as a question of law.

Tbe charge may be somewhat confusing as to whether tbe court, in tbe first part, intended to convey to tbe jury that it was a question for them to determine, or intended to instruct them tbat tbe riding in a cattle car was negligence per se. However, the latter part of said charge does tell them that such conduct is negligence. Tbe charge was intended as tbe converse of paragraph No. 4, in which tbe court submitted tbe theory upon which plaintiff was entitled to recover, and we think tbe apparent discrepancy worked no harm to appellant.

Appellant’s second assignment is tbat tbe court erred in the fourth paragraph of its charge, which is as follows: “If you believe from the evidence in this case that at the time alleged by the plaintiff he was in the car of cattle at Valeria to care for his stock, and that the train was started while he was in the car, without notice to him, before he finished getting his cattle up, and that he continued to ride in said car and to work with his cattle from Valeria to Talpa; and if you find that it was dangerous to attempt to get out of same while running, and that a person in the use of ordinary care, under the circumstances, would have remained in said car, and that the conductor in charge of said train knew that plaintiff went into and was riding in said car; and if you find that it was customary for persons in charge of stock to ride in the car with them while moving when necessary, to get up and take care of the cattle; and if you further believe from the evidence that plaintiff was acting^with ordinary care for his own safety, while in said ear, and that while he was working with a calf in said car the agents or servants of the defendant in chargé of said train suddenly and unexpectedly to plaintiff checked and jerked said train with unusual and unnecessary violence, and that by said check or jerk of the train (if there was such check or jerk) was negligence, and such negligence (if any) proximately caused plaintiff to be thrown down and backward against the end of the car, and the calf he was handling to be thrown against his abdomen, and he was thereby injured in any of the respects alleged by him — then you will find in favor of the plaintiff, unless you find for the defendant under other instructions herein given you.”

One objection is that: “This charge was prejudicial to the defendant and erroneous, in that the jury was precluded from considering the affirmative defenses which were presented in the special charges given at its request, as in this fourth paragraph the jury were directed to find in favor of the plaintiff, etc., unless they found for the defendant under other instructions herein given.” We do not see the force of this contention, for the main charge, together with special charges given by the court, is to be considered as a whole, and the jury could not have been prejudiced by the language, “unless they found for the defendant under other instructions herein given.” The words, “herein given,” included all of the court’s charge, whether main or special, for the defense, and precluded none.

The second objection to paragraph 4 of the court’s charge above quoted is that: “It was erroneous for the court to submit in this ease the issue as to whether or not it was customary for persons in charge of stock to ride in the car with them while moving. The contract under whieh this shipment moved was offered in evidence, and was unimpeach-ed, and thereunder it was contracted that the plaintiff would remain in the caboose while the train was in motion.” In this connection we will also consider the third assignment of error, complaining of the admission of plaintiff’s testimony, which was admitted under the following circumstances: “After the plaintiff had testified that he had frequently traveled with freight trains which were transporting his cattle in car load lots, and that cattle on the car would sometimes get down on the floor of the car, and that he would get the cattle up, and had further testified that usually when his cattle got down he, when the train would stop to meet another train, to take water or anything of that sort, would get out of the caboose and go to the car and punch the cattle up, and if he could not get them up that way, he sometimes had to get in the car and straighten them up, plaintiff’s counsel asked plaintiff this question: ‘What do you say was your custom; what you usually did about getting stock up in the car?’ To this question the defendant objected because the matter was immaterial and irrelevant, and because any custom of plaintiff was not binding upon the defendant, and because it had not been shown that the defendant had information about what plaintiff usually did, or what his custom was, and because it had not been shown that the defendant had acquiesced in the conduct of the plaintiff, or in what he usually did. The court overruled the objection, and permitted the witness to answer and say, and he did answer and say: T would get in the car and get them up, and if it happened that they did not wait for me to get out of the car and started off with mé, I would stay in the car until we got to the next station, and I got the cattle up, and then I would get out and go back to the caboose.’ ” The plaintiff had pleaded such a custom with appellant’s road. Appellant had pleaded contributory negligence, but had not pleaded plaintiff’s contract to remain in the caboose when the train was in motion. The testimony was admissible to be considered by the jury in determining the issue of contributory negligence, and whether or not the provision in the contract had been waived, and the court did not err in presenting it in his charge. Railway Co. v. Cook, 12 Tex. Civ. App. 203, 33 S. W. 669, and authorities cited therein.

It was not error to admit in evidence the “American Experience Tables of Mortality,” showing the average life expectancy, and for plaintiff to show therefrom his life expectancy. The table was shown to be a standard one, and used generally by reputable life insurance companies for years.

Dr. J. A. Smith, a witness for plaintiff, after testifying to having treated appellee, and as to the nature of his injuries, and after testifying on cross-examination that for several years he had been called as a witness very frequently by plaintiff in suits against railway companies for personal injuries to testify, and that he had never been called as a witness in any case by defendant, he was asked by defendant’s counsel “if in these cases it had been bis custom in tbe past to proportion bis fees for services on tbe amount of recovery”; objection was interposed by plaintiff and sustained. Tbe defendant bere complains at tbe rule of tbe court. We think tbe ruling of tbe court was proper. What Dr. Smith’s custom was in other cases was immaterial. It would have been proper to have inquired what his contract was, or conduct would be, as regarding his fee in this case, but this was not done.

Tbe nineteenth assignment is: “Tbe court erred in refusing to give to tbe jury defendant’s special charge No. 1, which special charge is as follows: The proximate cause of an event is that cause which, operating in a natural and continuous sequence, unbroken by any independent cause, produces the event, and without which the event would not have happened. The uncontroverted evidence shows that the plaintiff was riding on the train upon a contract which obligated him to remain in the caboose while the train was running, and shows that plaintiff at the time he alleges he was injured was riding in a cattle car and not in a caboose, and there is no evidence showing that the defendant had waived the contract requiring plaintiff to ride in the caboose. Therefore you are instructed that, if you believe from the evidence that plaintiff’s riding in the cattle car at the time he was injured was the proximate cause of his injuries, if he was injured, then the plaintiff is not entitled to recover in this case, and you will return a verdict for the defendant.” This, in effect, would have been telling the jury to find for the defendant, and it was properly refused. Plaintiff had introduced testimony raising the issue as to the waiver of the contract prohibiting plaintiff from riding in a cattle car when moving, and the court had sufficiently submitted that issue.

Appellant’s assignments from 20 to 24, inclusive, relate to appellee’s entering and remaining in the cattle car while it was moving, etc.; that is, to the issues of contributory negligence and assumed risk. We think what we have said under nineteenth assignment just preceding is a sufficient answer to these assignments.

The twenty-fifth assignment complains of the refusal of a charge which instructs the jury that if they believe the servants were operating the train in such manner and with such movements only as men of ordinary caution and prudence would have used in operating a freight train under the circumstances, to find for defendant. The court in the fourth paragraph of the charge, in effect, required a finding that defendant’s servants suddenly and unexpectedly checked and jerked the train with unusual and unnecessary violence, and that same was negligence, proximately causing the injury, and in the fifth paragraph, requiring a finding for defendant, unless the jury believed the employSs negligently caused the train suddenly and unnecessarily to check up and jerk and injure plaintiff. The court also defined ordinary care, negligence, and proximate cause, which leads ds to the conclusion that appellant’s requested charge was sufficiently embraced in the court’s main charge, and it did not err in failing to give the requested charge.

The twenty-sixth assignment is as follows: “The court erred in refusing to give to the jury defendant’s special charge No. 9, which special charge is as follows: ‘If you believe from the evidence that the plaintiff, at the time alleged, sustained a hernia, and if you believe that the hernia was caused by any negligence of defendant’s servants operating its train, and if you believe that by a surgical operation the plaintiff’s hernia would probably have been cured, and if you further believe that a man of ordinary caution and prudence, situated as plaintiff was and’has been since he had such hernia, would have had a surgical operation performed for the cure of said hernia, then and in that event the plaintiff is not entitled to recover compensation for any disability or suffering which he probably would have avoided or escaped, if any, by such surgical operation.’ ” This charge, had it been given, could only have affected the amount of the verdict; and, as there is no complaint of its being excessive, the failure to give said charge will be considered harmless.

There are several assignments complaining of the admission of testimony, the majority of which we think without merit. There are one or two of which, strictly speaking, have merit, and the testimony should not have been admitted, but its admission we regard as of such a nature, under the facts of the case, as not calculated to affect the result of the case, and not such as to require a reversal of the case.

The judgment is affirmed.  