Sayles' Ann. Civ. St. 1897, art. 4447. Upon the filing of this statement the county judge is required to appoint three disinterested freeholders as commissioners to assess the damages, who, after having issued a notice in writing to each of the parties of the time and place selected for the hearing, are authorized to proceed to fully hear said parties, and to assess such damages as will be sustained by the owner. And while it is provided that, "If either party be dissatisfied with the decision of such commissioners he may within ten days after the same has been filed with the county judge file his opposition thereto in writing setting forth the particular cause or causes of his objection, and thereupon the adverse party shall be cited, and said cause shall be tried and determined as in other civil causes in said court," still we find nothing in the statute that would require either party in his pleadings to define the limits or extent of the holding of the owner whose property is sought to be condemned. This we take to be a matter wholly of proof. For it is contemplated by the very letter and spirit of the statute that the owner is entitled to recover, not only the market value of the land actually taken, but, in addition thereto, the damages sustained as to the remaining portion. In this case there is no admission that appellant's land consisted of only 850 acres, and there is evidence indicating that it contained much more. Το allow him damages upon 850 acres only is to compensate him in part only for the loss sustained.

There was also error in the following part of the court's charge: "I therefore charge you as the law that you may consider, in estimating the damages, if any, sustained by defendant, the proposed construction of a depot and switch at the intersection of the plaintiff's railroad and that of the Denver Railroad," etc. This charge is clearly upon the weight of the evidence, in that it assumes that the proposed construction of a depot and switches at the intersection of the plaintiff's railroad and that of the Denver Railroad constitutes a special benefit to appellant's land. At most, it is a question of fact, to be determined by the jury trying the case, what is or is not a special benefit. Under the facts as the record is presented to us, it is extremely doubtful if the erection of a depot and switches at the point designated, which is one-half a mile from appellant's land, can in any event be considered a special benefit. Rather, we think it is one of those benefits which appellant receives in common with the community generally. This benefit is by virtue of the fortuitous circumstance of the depot's being located in his vicinity, and not in any sense because of the condemnation of, and the construction of the railroad across, his particular parcel of land. He would receive this benefit if the railroad never crossed his land, and could not, of course, be required to pay for it. Why, then,

should he be required to pay merely because a part of his land is condemned for right of way, to the injury of the remaining portion? Pochila v. Railway (Tex. Civ. App.) 72 S. W. 255, and authorities there cited.

It follows from this that the court erred in admitting the testimony complained of in the seventh, eighth, ninth, and tenth assignments of error, relating to the proposed establishment of a depot and town at the intersection of the two roads.

We understand the statute to lay down a clear rule of damages in this character of case, which itself will constitute a sufficient guide for the trial court upon another trial. Article 4459 is: "Said commissioners shall hear evidence as to the value of the property sought to be condemned, and as to the damages which will be sustained by the owner thereof by reason of such condemnation, and as to the benefits that will result to the remainder of such property belonging to such owner, if any, by the construction and operation of such railroad, and shall according to this rule assess the actual damage that will accrue to such owner by said condemnation." Article 4461 provides: "In estimating either the injuries or the benefits when only a portion of a person's real estate is condemned the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner as to the remaining portion of such real estate; whether such remaining portion is increased or diminished in value by such condemnation, and the extent of such increase or diminution, and shall assess the damages accordingly." And, finally, article 4462 declares that: "In estimating either the injuries or the benefits, as provided in the preceding article, those injuries or benefits which the owner of such real estate sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate." When tested by the rule as here laid down, the charge of the court in this case in several respects is erroneous, but we deem it unnecessary to call further attention to the same.

The testimony elicited from the witnesses Neece, Williams, and others with reference to the extent of the injury to appellant's lands, if considered as segregated and as separate parcels, was probably admissible upon cross-examination. We think, however, there was error in allowing the witness Pyron to testify as to particular purchases made by him, unless it had been further shown that these lands were similar in situation and otherwise to those of appellant.

The court should not have heard testimony one way or another as to the damage to the 100 acres of wheat land caused to overflow by the construction of appellee's embankinent. The statute requires every railway company in the construction of its line to

provide necessary culverts and sluiceways, and, for any failure so to do, an injured party has his remedy in a suit at law. Such issue is independent of, and should not be confounded with, a condemnation proceeding which contemplates a proper construction and operation of the proposed railway. Gregory v. Gulf, etc., Railway Company (Tex. Civ. App.) 54 S. W. 617.

As the case is now presented to us, there is practically but one question to be presented to the jury upon another trial, and that is the amount of appellant's damages to be determined by the rule of the statute above quoted, for in the present state of the evidence there is little or no testimony tending in any way to show any special benefits to appellant's land by reason of the condemnation and use of the right of way in question.

For the errors discussed, the judgment is reversed, and cause remanded for another trial.

INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE. Where, in an action for personal injuries, plaintiff seeks recovery solely on the ground that at the time he was injured he was in a position of peril, which defendant discovered in time to have prevented the injury by the exercise of ordinary care, contributory negligence is no defense.

[Ed. Note.-For cases in

Cent. Dig. Negligence, $ 115.Point, see vol. 37,

4. APPEAL STATEMENT OF FACTS-BILL OF EXCEPTIONS.

Under the express provisions of Sayles' Ann. Civ. St. 1897, art. 1362, where evidence in the statement of facts would explain or show the relevancy of evidence embraced in the bill of exceptions, it is sufficient for the bill to refer to such evidence as it appears from the statement of facts, without setting it out.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, §§ 13-17.] 5. NEGLIGENCE ACTION-EVIDENCE-RELE

VANCY.

In an action for personal injuries, in which plaintiff alleged that the injuries had impaired his memory, defendant offered evidence that before the accident, and while plaintiff was a conductor on one of its cars, he had had an altercation with a passenger, in which he had sworn at her, and treated her harshly. This evidence was excluded. On cross-examination

*Rehearing denied June 14, 1905.

plaintiff was asked if conductors were not required by rule of the company to treat passengers courteously, and stated that he did not remember. There was no direct evidence that there was any such rule. Held, that it did not appear that the testimony excluded had any tendency to show that plaintiff's memory was poor before the accident, and hence was properly excluded as irrelevant.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by J. K. Yates against the Northern Texas Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins, D. Upthegrove, and Edward G. Perkins, for appellant. W. P. Finley, for appellee.

EIDSON, J. This was an action brought by the appellee for damages for personal injuries alleged to have been caused by the negligence of appellant, its agents and servants. Appellant answered by general denial, and pleaded contributory negligence upon the part of appellee. The trial resulted in a verdict and judgment for appellee in the sum of $2,000.

Appellant's first assignment of error and propositions thereunder complain of the charge of the court upon the grounds that it assumed that appellee was injured, and that he was in a dangerous position at the time of such injury. It appears from the record that the court in its charge did assume these facts; but there was no error in this action of the court, as the uncontroverted evidence, according to the record, shows that appellee was injured, and that at the time he was injured he was in a position of peril. Railway Co. v. Stewart, 57 Tex. 166; Railway Co. v. Pearce, 75 Tex. 281, 12 S. W. 864; Railway Co. v. Bowen, 95 Tex. 366, 67 S. W. 408; Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway Co. v. Dalwigh (Tex. Civ. App.) 48 S. W. 528.

By its second assignment of error appellant complains of the following paragraph of the main charge of the court, to wit: "If you find that plaintiff is entitled to a verdict, then the amount of your verdict, if any, should be such sum of money as, in your best judgment, with the light of the testimony before you, will be a reasonable pecuniary compensation to plaintiff for all such physical pain, if any, and mental suffering, if any, and impairment of his nervous system, if any, and impairment of his memory, if any, and impairment of his ability to earn money, if any, and expense, if any, incurred by plaintiff for the reasonable value of such services of a physician as it may have been reasonably necessary for him to incur for the treatment of the wound on his head as plaintiff may have sustained as the direct result of the injuries sustained by him in falling off of said car on the 13th of October, 1902." Appellant's contention is that the charge quoted is

misleading, confusing, and authorizes a double recovery, for the same injuries. The alleged vice in the charge, according to appellant's contention, arises from the authority given to the jury to allow compensation for impairment of his nervous system and impairment of his memory in addition to the compensation the jury are authorized to allow appellee on other grounds stated in the charge. We do not think appellant's contention is sound. We are of the opinion that appellee, under his pleadings and the evidence, was entitled to compensation for impairment of his nervous system and memory, independent of and in addition to the compensation he was entitled to upon the other grounds stated in the charge. And therefore, there was no error in the court's so instructing the jury. Railway Company v. Warner (Tex. Civ. App.) 54 S. W. 1064; Railway Co. v. Boehm, 57 Tex. 152; Railway Co. v. Greenlee, 62 Tex. 344; Railway Co. v. Randall, 50 Tex. 261.

Appellant's third, fourth, fifth, sixth, seventh, and twenty-second assignments of error relate to the refusal of the court to submit to the jury the question of contributory negligence on the part of appellee as the proximate cause of the injury, and the exclusion of testimony offered by appellant to show such contributory negligence. Appellee's action being predicated solely upon the allegations that he was in a position of peril, and that appellant, its agents and servants, discovered his perilous position in time to have prevented injury to him by the exercise of ordinary care, contributory negligence on the part of appellee was not involved or properly an issue in the case; and therefore could not be availed of by appellant as a defense. Railway Co. v. Breadow, supra; Railway Co. v. Bowen, supra.

There was no error in the action of the court complained of in appellant's twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments of error. The answers of the witness to the cross-interrogatories mentioned in these assignments are not subject to the objections interposed to them by appellant. They were practically responsive to the interrogatories, and were as positive and complete as was practicable, in view of the witness' knowledge and information relative to the matters inquired about as gathered from the entire deposition; and the deposition, when considered in its entirety, furnishes appellant with the information desired to be elicited by the cross-interrogatories, the answers to which it claims were evasive, and not responsive; and therefore the action of the court complained of was not error. Cohen v. Oliver, 9 Tex. Civ. App. 38, 39, 29 S..W. 81.

We overrule appellant's twentieth assignment of error. The witness whose answers are complained of, while using the word "believe" in answering the interrogatories, evi

dently was testifying according to his best recollection, and such testimony was admissi

ble.

Appellant's twenty-fifth assignment of error is as follows: "The court erred in excluding the testimony of the witness Mrs. Jessie Vesta Lytle, because the testimony was material and relevant, and in contradiction of plaintiff's testimony on material issues in this case, and was not an attempt to impeach plaintiff on collateral matters." And its proposition thereunder is as follows: "In a suit brought by a party, in which he claims that the injuries received affected his mind by weakening his memory, it is reversible error for the court to refuse to allow the defendant to show the condition of his mind and memory prior to the time of the alleged injury." The only allegation in appellee's petition which charges that his mind was affected as a result of the injuries received by him, is the allegation that the cut on his head affected his mind by weakening his memory, and this allegation does not charge that his mind was affected in any respect except as to his memory, and that was alleged to have been weakened. From appellant's bill of exceptions, upon which this assignment is based, it appears that it sought to prove by the witness Mrs. Jessie Vesta Lytle as follows: "That on Sunday, August 24, 1902, she was a passenger on one of defendant's cars; that said witness knew plaintiff J. K. Yates; that on the afternoon of that day witness got on an east-bound car at Arlington and handed the conductor, Mr. Yates, her transportation, which was a request in writing, 'given me by the conductor that carried me past stop 17, and told him that I had been carried by stop 17, and wanted to get off there. He did not say anything else to me until we got to stop 17 and I started to get off, but the car had passed the stop 75 or 100 yards, and when I got to the bottom step of the car I found there was no one to meet me, and told Mr. Yates I would not get off, but would go on to Dallas. He told me to either get off or get on the car. The car at this time was out in the middle of a field, 75 or 100 yards from the stop, and it was dark. I went back in the car, and he asked me for my fare to Dallas. I told him I had paid my fare to stop 17, and that the car had failed to stop, and I thought he ought to take me to Dallas, as I had no one to meet me at stop 17 at that time of night. He then left me, but came back in a short while, and again asked me for my fare, and told me if I did not pay it he would stop the car and put me off. He again threatened to put me off, and I appealed to the motorman in the car, and he told me that he would see that Mr. Yates did not put me off. While I was talking to the motorman, Mr. Yates came to me, and caught hold of my arm, and ordered me back to my seat, and said

that he (Mr. Yates) was running that car. I started to go back to my seat, and the motorman told me that he should not put me off. Mr. Yates told the motorman that it was none of his God damn business. The motorman told him that he would stop at the first telephone station, and talk to headquarters for instructions, which they did, and both of them got off of the car, and the motorman came back to me with Mr. Yates, and told me to stay on the car, which I did. He was exceedingly rough when he first demanded my fare after he had passed stop 17, and he was angry all the time while talking to me, and then he cursed while I was talking to the motorman, and for some time previous he had been very rough with me. I was worried and harassed and humiliated and mortified and embarrassed greatly, and can't say how long. I sued the company, and the case was settled by them paying me $300.'" There is nothing in this bill of exceptions, when considered by itself, to show the relevancy or materiality of this testimony; and, thus considered, it clearly appears to relate to a collateral matter. There is nothing in it tending to show that appellee's memory was not weakened by the injury. It does not tend to show that he has a good memory now, or that he had a defective memory prior to the injury. It does show that he acted discourteously, rudely, inconsiderately, and very harshly towards this lady, but such conduct does not necessarily proceed from a defective memory. When the evidence in the statement of facts would explain or show the relevancy and materiality of the evidence embraced in the bill of exceptions, it would be sufficient for the bill to refer to such evidence as it appears in the statement of facts, without setting it out; but if there is any evidence in the statement of facts which would explain or show the relevancy or materiality of the testimony set out in the bill of exceptions, the bill makes no reference thereto. Sayles' Ann. Civ. St. 1897, art. 1362. If, however, we are permitted to look to the statement of facts for such evidence, without a reference thereto in the bill of exceptions-which is not conceded—an examination of the statement of facts does not, in our opinion, disclose any evidence showing the relevancy or materiality of the testimony sought to be introduced by appellant. The only matter embraced in the statement of facts claimed by appellant to in any wise tend to show the relevancy or materiality of the testimony excluded is contained in the following answers of appellee and question propounded to him on cross-examination: "They have printed rules and regulations with reference to the management of the business. I had one of the books. I should think I was familiar with those rules at the time. I tried to learn them as I was working for the company, and should think

I probably familiarized myself with them. I suppose at that time I was familiar with the rule of the company in reference to the ejection of passengers. I can't say now what that rule was. Question: Now, to refresh your memory, wasn't it that you should treat passengers in a courteous manner, and not have any disturbances with them, or any trouble with them on the car? Answer: Well, any gentleman would be courteous, you know. I had no trouble with my passengers, that I know of. I don't remember having what you would call trouble with a young lady by the name of Miss Potts. I had some difference with a young lady on my car. The best I can remember, she got on the car, and wanted to get off at a certain place, and there was no one there to meet her, and it was night, and she said she would go to Dallas, and refused to pay her fare from there on. I insisted on her paying her fare, is all. I did not talk a little raw to her. I did not swear in her presence, or at her, or swear at the motorman in her presence. I did not call her a dead beat, or tell her I would throw her off of the car in the dark, and did not make the young lady cry, and call for protection from the passengers on that car, and tell her I would throw her off of the car. I did not know that the young lady filed suit against the company for my conduct toward the young woman. I swear that the above things enumerated did not happen on my car. I told the young lady, unless she paid her fare, she would have to get off at Grand Prairie." Appellee's objections to the testimony sought to be introduced by appellant of the witness above named were that said testimony was irrelevant and immaterial, and was an attempt to impeach the witness appellee upon collateral matters concerning which the apperlant by its questions and the answers of appellee was concluded and barred; and that said testimony was an attempt to introduce into the case prejudicial matters, which were calculated to injure the appellee's case before the jury; and that the exclusion of said testimony in no manner interfered with the proper and legitimate examination as to the party's mental capacity; and further, that the court had already sustained an exception to the cross-action of the appellant, which involved the same state of facts. Appellant contends in its argument under this assignment that it appears from appellee's testimony above quoted that he knew what the rule of appellant was in reference to the ejection of passengers from its cars at the time he was working as conductor, and that said rule was that passengers should be treated in a courteous manner, if it became necessary to eject such passengers from the car. It will be observed that while appellee testified that at the time he was conductor he supposed he was familiar with the rules of the company in reference to the ejec

tion of passengers, he testifies that he at the time of testifying could not say what the rule was, and in answer to the question intended to refresh his memory on the point he does not say that he then knew what the rule was. Hence there is no proof in the record to show what the rule was. If the proof had shown that the rule required conductors to treat passengers, under the circumstances mentioned, courteously, it is possible that a part of the testimony excluded might have been admissible as tending to show that he had forgotten his duty, as required by the rules, and thus been relevant on the question as to the injury weakening his memory; because, if he had a defective memory prior to the injury, it would be a circumstance which the jury might consider in determining whether his memory was impaired by the injury at all. But when the character of testimony excluded is considered it is a matter of great speculation whether it tended to show defective memory in any degree. It does show a harsh, inconsiderate, and ungentlemanly disposition upon the part of appellee.

It is further to be observed that the appellee was interrogated about his conduct towards and treatment of a Miss Potts, and there is nothing in the record or bill of exceptions tending to show that she and the person whose testimony was excluded were the same persons. If we consider the identity of Miss Potts and Mrs. Lytle to be shown, this testimony, in connection with that quoted of appellee, would tend equally as much to show defective memory at the time of trial as a desire to tell those matters favorable to him and omit those unfavorable to him, and to that extent would have been unfavorable to appellant. It appears from the record that appellant was given great latitude in the introduction of evidence tending to negative impairment of appellee's memory as a result of the injury. As stated in Railway Co. v. Johnson, 86 S. W. 34, 12 Tex. Ct. Rep. 76, by Chief Justice Fisher, quoting from Railway Co. v. Lester, 84 S. W. 401, 11 Tex. Ct. Rep. 817: "It is the rule in Texas, established by a long line of decisions, that a bill of exceptions should state the facts in regard to the matter of which complaint is made in such a manner as to exclude any reasonable hypothesis upon which the decision of the trial court can be explained. Every point in the bill of exceptions must be so clear and full that nothing will be left to inference or implication." Following this rule, and in view of the suggestions above mentioned, we conclude that there was no reversible error in the action of the court of which complaint is made in this assignment.

The verdict of the jury is supported by the evidence, and is not excessive in amount. All assignments of error are overruled, and the judgment of the court below is affirmed. Affirmed.

HORSTMAN et al. v. LITTLE.* (Court of Civil Appeals of Texas. April 12, 1905.)

1. FRAUDULENT CONVEYANCES-ATTACHMENT -BOND-TRIAL OF RIGHT OF PROPERTY.

After an insolvent had transferred property in fraud of creditors, certain creditors attached it, and the transferees gave a bond and commenced proceedings to try the right of property. After the property had been returned to them under the bond, they sold it. The attachment suit was subsequently dismissed. Held, that the dismissal of the attachment suit terminated all liability on the bond, so that the second purchasers were not entitled to hold the property as against creditors of the insolvent.

2. SAME EVIDENCE OF FRAUD.

On an issue whether a transfer by an insolvent was fraudulent, evidence that, shortly before the transfer, the insolvent had transferred other property to another party for less than it was worth, was admissible.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, § 842.] 3. BANKRUPTCY PREFERENTIAL TRANSFERS

-RIGHTS Of CreditorS-SURETIES.

A surety is a creditor, within the meaning of the provision of the bankrupt act condemning preferential transfers to creditors.

4. SAME CONSIDERATION FOR TRANSFER.

Where an insolvent transferred property under an agreement that the transferee should pay a debt owing by the insolvent to a bank, and the transferees again transferred, receiving no consideration except an agreement by their transferees to pay the debt to the bank, and the bank received payment with the knowledge of the various agreements, it was guilty of receiving a preferential transfer, within Bankr. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], declaring such transfers void.

5. SAME-UNSECURED CREDITORS.

The fact that a debt owing by an insolvent is secured does not prevent a transfer of property by the insolvent to pay it from being preferential as to creditors not secured.

6. TRIAL-SUBMISSION OF SPECIAL ISSUESFINDINGS-PRESUMPTIONS.

Under the statute regulating the practice when cases are submitted upon special issues, the court must be presumed to have found in favor of the prevailing party upon an issue which was not submitted to the jury, but as to which there was evidence justifying its submission.

7. TRIAL-ADMISSION OF EVIDENCE-RESTRICTION TO SPECIAL PURPOSE.

Where, in an action against several defendants to recover property transferred by a bankrupt in fraud of his creditors, certain testimony given by the bankrupt in a proceeding before the referee was read by agreement between the plaintiff and certain of the defendants, the court stating to the jury that it was only to be considered as against such defendants, other defendants, whose liability rested upon issues not affected by the testimony, were not prejudiced.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by Sam G. Little, as trustee in bankruptcy of Francis M. Johnson, against H. Horstman and others. From a judgment for plaintiff, defendants appeal. Affirmed. See 83 S. W. 679.

*Rehearing denied June 14, 1905.