to a profit of $100 on my $1,500, which would make him due me $1,600. In settlement of this he made me a deed to the North Main street property, and gave me his note for $600, due in six months." Appellant, after testifying that Collins & Dulaney held their property at $1,500, and had given him an option on same at that amount, and agreed not to quote the price to a buyer sent them by him at less than $2,000, testified as follows: "I then saw Bray, and told him about the Collins & Dulaney lot, and proposed that we buy it together; that I would put in $500 if he would put in the balance, and we would own it in the proportions paid by each. He agreed to this. We agreed that Bray should go to them, and do the buying, and buy at the lowest figure he could. This was to be a cash transaction, and each was to pay the money for his part. Nothing was said about buying it partly on time, and incumbering the property with a vendor's lien for $1,000. I saw Bray two or three times after this, and asked him about the trade for the Collins & Dulaney lot, and he said he could not buy it; that they wanted $2,500 for the lot. In the meantime I saw Mr. Collins, and he first told me that they had agreed on a trade, and that Bray had put up $100 to bind it pending an investigation by him of the title. Afterwards, Bray having again told me that he had not bought the property and could not buy it, I went to Mr. Collins, and asked him about it, and he said the trade was closed; that Bray paid them $1,000 cash, had the deed made to one Priddy, and Priddy made a note for $1,000, which Bray had also signed; and that Mr. E. S. Connor had taken up the note. They paid me $500 as per our contract. I don't know Priddy, had never heard of him, and certainly was not willing to have my property in his name. I went to Bray and asked him why he had left me out on this deal, and he said that he had to pay $2,500 for the property, and he did not think I wanted it at that figure. As he had incumbered the property for $1,000, and had not bought it according to our agreement, I did not insist on claiming an interest in the Collins & Dulaney lot. I had tried to sell Bray's note for $600, that I had, and had failed to do so. In order to get this note paid, I proposed to Bray to buy another lot he owned on North Main street, adjoining the first one, that I had already bought from him. I asked him what he would take for it, and he first asked me $1,000. I offered him $900, to be paid by surrendering his note for $600, and paying him $300 in cash, and we traded on that basis. I gave him his note and paid him $300, and he made the deed to me." We are of the opinion that the testimony of appellant quoted raised the issue above mentioned, and thereby created a conflict in the testimony as to the right of appellee to recover, and that therefore the case should have been submitted to the jury under appropriate instructions upon the is

sues raised by the pleadings and the evidence of both parties. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63; Johnston v. Drought (Tex. Civ. App.) 22 S. W. 290; Royall v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) 32 S. W. 186.

For the error pointed out, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded. .

2. MASTER AND SERVANT-INJURIES TO SERVANT-RAILROAD FELLOW SERVANTS—DUTY ТО KЕЕР WATCH.

The fact that a locomotive engineer knew that the conductor was riding on the pilot did not charge him with the duty of keeping a continuous watch upon the conductor's movements, or require him to anticipate that the conductor would fall from the engine, and to be on the lookout for such an emergency, to the neglect of other duties requiring him to keep watch in another direction; but he was entitled to assume that the conductor knew the insecurity of his position, and was bound only to be careful not to do anything to increase the danger to which the conductor was subjected.

Appeal from District Court, San Augustine County; Tom C. Davis, Judge.

Action by Maggie Cardwell, individually and as next friend of her minor child, V. O. Cardwell, against the Gulf, Beaumont & Great Northern Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. Felton Lane, W. T. Davis, and Makemson, Hudson & Lord, for appellant. J. W. Terry and F. J. & R. C. Duff, for appellees.

PLEASANTS, J. This is a suit by appellant, Maggie Cardwell, for herself and as next friend of her minor child, V. O. Cardwell, to recover damages for the death of her husband, the father of said minor. The suit is against the Gulf, Beaumont & Great Northern Railway Company, the Gulf, Beaumont & Kansas City Railway Company, the Gulf, Colorado & Santa Fé Railway Company, and the Old Colony Contracting Company. The petition alleges, in substance, that the deceased, V. O. Cardwell, met his death on the 10th day of October, 1902, while in the employment of some or all of the defendants in the capacity of conductor of a railroad train owned and operated by some or all of the defendants, and plaintiff is in*Writ of error denied by Supreme Court.

formed and believes, and, so believing, charges, that the railroad and train in the operation of which the said V. O. Cardwell was killed was then and there owned and operated by the defendant Gulf, Colorado & Santa Fe Railway Company, and the said Cardwell's death was caused by the negligence of the employés of said defendant. It is then alleged that, if plaintiff is mistaken in the above allegation as to the ownership of said railroad and the responsibility for its proper operation, it was owned and operated by some one or all of the named defendants, and judgment is asked against the defendant or defendants found to be responsible for the death of said Cardwell. The allegations as to the circumstances under which Cardwell was killed are, in substance, that while engaged in the work of switching a train on defendant's road, and acting in the capacity of conductor, brakeman, and switchman, it became proper for him, in the discharge of his duties, to get upon the pilot of the engine which was drawing said train, and that while so riding upon the engine, or in attempting to step therefrom, he slipped and fell, and was caught and dragged by the engine for a distance of 50 feet, and his body was thereby so crushed and mangled as to then and there cause his death. The negligence alleged, and upon which the right of recovery is based, was the failure of the engineer and fireman to use proper care to stop the engine after they discovered that Cardwell had fallen therefrom, and, in the alternative, the failure of said employés to keep a proper lookout, and, as a consequence, their failure to discover Cardwell's peril in time to stop the engine before it struck him, and the failure of the defendant to have its train properly equipped with the appliances necessary to stop it suddenly in case of emergency. The amount of damages claimed in the petition is $40,000. The defendants answered by general denial, and by special pleas, which, among other defenses, charged that the deceased was guilty of contributory negligence in riding upon the pilot of the engine, and that he assumed the risk incident thereto. Upon the trial below, after hearing the evidence, the trial judge instructed the jury to find a verdict for the defendants; and, upon the return of such verdict, judgment was rendered in accordance therewith.

The evidence shows that the deceased, V. O. Cardwell, was killed on October 10, 1902, in the manner and under the circumstances alleged in the petition. The engine which ran over deceased was being operated by D. D. Barfield, engineer, and Frank Flores, fireman. Cardwell was conductor of the train, and it was being switched to allow a train that was meeting it to pass. He was performing the duties of switchman as well as conductor, and had gotten on and off the pilot of the engine several times, presumably for the purpose of placing the switch. As the two trains were passing each other, he was

seen to slip or fall from his position on the engine, and was caught and killed in the manner stated in the petition. At the time he fell the train was moving at the rate of four or five miles an hour going up a slight grade. He fell just in front of the train, and his body was pushed along by the engine for a distance of 24 feet. The engine was stopped about 65 feet beyond the point at which he fell. It was equipped with proper appliances for stopping it, and these appliances were in good condition. There is evidence that the engine could have been stopped within 3 or 4 feet by the use of the automatic brakes with which it was equipped.

There is no testimony from which the jury could have found that either the fireman or the engineer saw Cardwell fall, or knew of his having fallen, until after he had been killed. The engineer testified that at the time the accident occurred his engine was passing the engine of the other train on the side track, and was moving in the opposite direction. He further testified: "I thought this engine was going south of this switch stand to take up a water pump there, and I knew that I would have to take care of my engine some way. So I holloaed to ask if he was going to take up the pump. I knew that I could tell by the way his mouth worked whether he was going to move the pump or not. While waiting for his answer, it was then that Mr. Cardwell fell from the pilot of my engine. He stepped up on the pilot, and fell off in front of the pilot in a sitting position, with his back toward the pilot; and, the engine moving at the rate of four or five miles per hour, he was struck in the back by the pilot, crushed down, and, the engine passing over his body, he was killed. I was looking out on the left-hand side of the cab of my engine, at the engineer of the other engine on the side track, waiting for his answer to a question I had asked him. The other engineer was standing in what is known as the 'gangway.' The last time that I saw Mr. Cardwell, before his injuries, he was standing on the right side of the pilot, erect, with one hand on the hand-hold. I did not see him fall. The first time I saw him was after he fell-was after they got him out from under the engine. I first knew of the accident by hearing the conductor of the other train holloaing in a tone of voice that warned me that something was wrong. I applied the emergency brake and stopped the train as quickly as brakes could be applied. Mr. Cardwell's body, when I saw him, was by the first front wheel of the tender. On my engine I could not see a person lying or sitting on the ground immediately in front of the pilot without getting up off the box, and I did not and could not see Mr. Cardwell in that position any time after he fell. Did not know that he had fallen until I heard Mr. Bennington holloa. The fireman on my engine could not, from

his box, sce a man standing on the pilot, on the right-hand side of the pilot. I heard the voice of Mr. Bennington, and knew there was something wrong, and stopped as quickly as air brakes could stop. I applied the brakes the minute I heard him holloa. I took it to be danger. There would have been no danger to myself and fireman to stop that train as quickly as possible, at the rate we were running. I did not hear Mr. Cardwell cry out. The fireman was on his seat box. I supposed that Frank Flores was looking out for the car I had called his attention to. I told him to keep a lookout until all the cars were clear. A body could not be seen from that engine if lying right in front of the pilot of the engine. It would be something like 15 feet ahead of the engine that a person on the track could be seen by the engi-. neer and fireman. On last Saturday afternoon I made the test as to whether or not a man in front of the pilot of the engine could be seen from the engine. I could see about that much [about six inches below the waist line] of the body of a man standing on the pilot." The fireman, Flores, was not a witness in the case. No witness testifies that either the engineer or fireman saw Cardwell fall, or that either of them was looking towards the front of their train at the time he fell, and the evidence is undisputed that he could not have been seen by a person on the engine after he fell upon the track.

We think it clear that the evidence does not raise the issue of discovered peril. The principle upon which the doctrine of discovered peril is based has no application in the absence of actual knowledge on the part of the person causing the injury of the peril of the person injured in time to prevent the injury by the use of the means within his reach. Ry. Co. v. Breadow, 90 Tex. 27, 36 S. W. 410; Ry. Co. v. Staggs, 90 Tex. 461, 39 S. W. 295; Ry. Co. v. Shetter, 94 Tex. 197, 59 S. W. 533; Ry. Co. v. Haltom, 95 Tex. 113, 65 S. W. 625; Ry. Co. v. Townsend (Tex. Civ. App.) 82 S. W. 804.

There is no evidence to sustain a finding of negligence on the part of the railroad company or the operatives of the train upon either of the other grounds alleged in the petition. All of the evidence shows that the appliances for stopping the train were of the proper kind and in good condition, but, were the facts otherwise, no liability would be shown, because, under the undisputed evidence, the peril of the deceased was not discovered in time to have prevented his death by the use of any possible means.

We do not think the evidence shows any negligence on the part of the engineer or fireman in failing to sooner discover the fact that deceased had fallen from the engine. It is true that the engineer knew that Cardwell was riding on the pilot of the engine, and he was charged with knowledge of the fact that this was an insecure and

dangerous position, but it is clear from the evidence that at the time he fell the duties of both the engineer and fireman required them to look in a different direction from the front of the train. Cardwell was the conductor and directed the movements of the train, and the fact that he may have placed himself in a more dangerous position than the proper discharge of his duties required did not charge the operatives of the train with the duty of keeping a continuous watch upon his movements, to the neglect of other duties of their employment, the performance of which the situation might demand. They could assume that Cardwell understood the insecurity and danger of his position upon the engine, and would take every precaution to keep from falling therefrom; and, while they were required to be careful not to do anything to increase his danger, they were not required to anticipate that he would probably fall while the train was being operated in a careful manner, and to be on the lookout for such an emergency. There is neither allegation nor proof that the train was not being operated in a careful manner at the time the deceased fell.

We are of opinion that the evidence raised no issue of liability against any of the defendants, and the trial court properly directed a verdict in favor of them all. Such being our conclusion, it follows that the judgment of the court below should be affirmed, and it has been so ordered. Affirmed.

- TITLE PAROL EXPLANATIONWhere notes given for the purchase money of land were payable, as to the principal, to the grantor's children, and the interest to her, in an action by the heir of one of the payees of the principal for partition of the notes, parol evidence was admissible to show that the payees held the legal title to the principal in trust for their mother during her life. 2. WITNESSES

TRANSACTIONS WITH DECEDENT-DISCLAIMER OF INTEREST.

Where the heir of one of the payees of the principal of notes sued for partition of the notes, defendants who disclaimed any interest in the notes were competent to testify as to transactions with plaintiff's ancestor.

3. SAME INCOMPETENT WITNESS.

In an action by an heir of one of the payees of the principal of notes for partition of the notes, a defendant was incompetent to testify as to transactions with plaintiff's ancestor, owing to Sayles' Rev. Civ. St. 1897, art. 2302, prohibiting testimony as to transactions with a decedent.

4. APPEAL-HARMLESS ERROR-RECEPTION OF INCOMPETENT EVIDENCE.

The admission of incompetent testimony is not reversible error in a case tried before the court, there being ample competent testimony to authorize the judgment.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

Action by C. J. Jones against Ledger Day and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. L. Wood, for appellant. R. T. Wilkinson, for appellees.

EIDSON, J. This suit was brought by appellant against the appellees, Ledger Day, Della Day, J. J. Bennett, Sarah Bennett, W. E. Riddle, and Alice Riddle, for partition of three promissory notes, each for the sum of $400, of date August 1, 1901, due, respectively, January 1, 1904, 1905, and 1906, signed by the defendant W. E. Riddle, and payable to Lydia Bennett, Alice Riddle, and Della Day; said notes bearing 10 per cent. per annum interest, payable annually to appellee Sarah Bennett. It is alleged that the defendants J. J. Bennett and Sarah Bennett are husband and wife, and that Lydia Bennett, Della Day, and Alice Riddle were their only children; that Ledger Day is the husband of Della Day, and that W. E. Riddle is the husband of Alice Riddle; that Lydia Bennett married the appellant, C. J. Jones, after the notes were executed, and died without issue; that said notes were given in consideration of a tract of land deeded by J. J. Bennett, Sarah Bennett, Lydia Bennett, Ledger Day, and Alice Day to W. E. Riddle on the same day the notes were executed, and the vendor's lien retained; that the principals of these notes belong to appellant, Alice Riddle, and Della Day, and the interest thereon to Sarah Bennett; and appellant prays for partition. Alice Riddle and W. E. Riddle answered, confessing the facts as set up in appellant's petition, and joined him in the prayer for partition. J. J. Bennett, Della Day, and Ledger Day, on the day of and before the trial, filed disclaimers. Sarah Bennett answered, claiming to be the owner of the three notes, and denied the appellant's right to partition. She admitted that the principals of the notes were expressly made payable to her said children, and that the interest was expressly made payable to her, but alleged that there was a contemporaneous parol agreement that the principals of the notes should not be paid to the children during her life, but were to be paid to her, as well as the interest. Sarah Bennett also alleged in her answer that the notes described in appellant's petition were given as the purchase money for land that was her separate property and her homestead, and that the parties named as payees in said notes had no interest in said land, and that it was agreed by all parties that the notes were not to be paid to the payees therein named, except in the event of her death before maturity of them; that said notes were negotiable and were delivered to her, and that she had had possession of them all the time since their execution, and that said notes constitute the only property she has. It was shown by the evidence that at the

time of the execution of said notes, since and at the date of the trial, the said Sarah Bennett and her husband, J. J. Bennett, were separated and not living together. The case was submitted to the court without a jury, and judgment was rendered in favor of Ledger Day, Della Day, and J. J. Bennett on their disclaimers and in their favor for costs, and that appellant, plaintiff below, take nothing by his suit, and that Sarah A. Bennett is the legal and equitable owner of the notes described in appellant's petition, and in her favor for costs of suit against appellant, plaintiff in the court below, and W. E. Riddle and Alice Riddle, defendants in the court below.

Appellant's first, second, third, and fourth assignments of error are presented together, and are as follows: "(1) The court erred in admitting in evidence the following testimony of R. L. Day: 'I remember the circumstances of this deed having been made. I know why the notes were made payable as they were. They were made payable this way to pacify Mrs. Bennett. At that time Mr. and Mrs. Bennett were separated. She did not want him to have any of the land or any of the proceeds of the land. These notes were made payable to the children to keep him from getting any of it after Mrs. Bennett's death. They were made payable to the children to make them their property as long as she lived'-over plaintiff's objection, as shown by bill of exception No. 1. (2) The court erred in admitting in evidence, over plaintiff's objection as shown by bill of exception No. 2, the following testimony of Sarah A. Bennett, to wit: 'It was understood by all the parties that the notes were to be paid to me if I was alive, but, being in bad health, I had them made payable to my children, in order that J. J. Bennett could not collect them at my death. I was to own them during my lifetime. They were placed in my possession by agreement of all the parties as my property. It was not intended that said notes should be collected by these parties during my lifetime. I did not intend to give these notes or the money to my children during my lifetime. I fixed it in this way in order that I might have the interest on this money to support me during my lifetime, and, in case of my death, the balance, if any remained, would go to my children.' (3) The court erred in admitting in evidence over plaintiff's objections, as shown by bill of exception No. 3, the following testimony of Della Day, to wit: 'It was understood by all the parties that these notes were the property of our mother, Sarah A. Bennett; that it was not a gift to the children, and they were not to collect them during her lifetime, and only in case of her death. Sarah A. Bennett was to own the notes during her lifetime, and she took possession of them immediately after their execution, by consent of all parties.' (4) The court erred in admitting in evidence over plaintiff's ob

jection, as shown by bill of exception No. 4, the following testimony of J. J. Bennett, to wit: My children told me they were willing to deed it [the land] back to me. They did not state anything about claiming any interest in it. They said they did not claim it; did not claim any interest in these notes. They all stated to me that they did not claim any interest in the notes. They all claimed that it was their mother's.'"

Appellant's first proposition under the above assignments of error is to the effect that, it appearing on the face of the notes that their principals were payable to Lydia Bennett, Alice Riddle, and Della Day, and the interest payable annually to Sarah Bennett, the testimony of Sarah Bennett, J. J. Bennett, Ledger Day, and Della Day that there was a contemporaneous agreement that said notes were not to be paid as provided in the notes, but were to be paid to Sarah Bennett, varied and contradicted the terms of the notes, to which they were all parties, and hence was inadmissible. The uncontroverted testimony showed that the notes sought to be partitioned were given for the purchase money of a tract of land the separate property of appellee Sarah Bennett; and hence, if appellant was entitled to any Interest in them, it was by reason of the gift by the said Sarah Bennett of the consideration of the sale of said land to her daughters, Lydia Bennett, Della Day, and Alice Riddle. The testimony, the admission of which is complained of, showed that the payees in the notes held the legal title to the principals thereof in trust for Sarah Bennett during the period of her natural life. Parol evidence was admissible to prove this fact, and hence the court did not err in admitting the testimony. Thompson v. Caruthers, 92 Tex. 530, 50 S. W. 331.

Appellant, by his second proposition under said assignments of error, contends that as this suit was an action by him as heir of Lydia Bennett, deceased, and Sarah Bennett, J. J. Bennett, Ledger Day, and Della Day being parties to the suit, their testimony to the effect that there was a parol contract and understanding between J. J. Bennett, Sarah Bennett, Lydia Bennett, deceased, Ledger Day, Della Day, W. E. Riddle, and Alice Riddle, that the principals of the notes were not to be paid to Lydia Bennett, Della Day, and Alice Riddle, but were to be the property of Sarah Bennett, was inadmissible, when offered over appellant's objections. The witnesses J. J. Bennett, Della Day, and Ledger Day having before the trial disclaimed any interest in the notes sought to be partitioned, their testimony was admissible. Easthman v. Roundtree, 56 Tex. 110; Markham v. Carothers, 47 Tex. 21.

This being an action by the appellant as heir at law of his deceased wife, formerly Lydia Bennett, the testimony of Sarah Bennett as to transactions with or statements by the deceased, Lydia Bennett, relating to

material issues in the case, was inadmissible, being in contravention of article 2302, Sayles' Rev. Civ. St. 1897. However, the action of the court in admitting her testimony is not reversible error, the case having been tried before the court without a jury, and there being ample competent testimony, as shown by the record, to authorize the judgment of the court. Clayton v. McKinnon, 54 Tex. 206-213; Lindsay v. Jaffray, 55 Tex. 640; Bank v. Oil Co. (Tex. Civ. App.) 60 S. W. 828; Wells v. Burts, 3 Tex. Civ. App. 436, 22 S. W. 419.

There being no reversible error pointed out in the record, the judgment of the court below is affirmed.

Affirmed.

TEXAS CENT. R. CO. v. WEST et al. (Court of Civil Appeals of Texas. June 14, 1905.)

1. CONTRACTS-NON EST FACTUM-PLEADING -VERIFICATION.

It is not necessary that the execution of a written contract be denied under oath in order to avoid it for duress, fraud, or mistake. 2. CARRIERS-INJURY TO FREIGHT-EVIDENCE -QUESTION FOR JURY.

In an action against a carrier for damages to a shipment of cattle, evidence held to justify submission to the jury of the question whether any of the damage occurred on defendant's line.

3. SAME-INSTRUCTIONS.

In an action against a carrier for damages to a shipment of cattle, caused by delay, it was not necessary for the court to define negligence.

4. SAME-WITNESSES-COMPETENCY.

In an action for damages to a shipment of cattle it was proper to allow a witness, who stated that he knew the freight rate between the terminals of the shipment, because he had paid it a number of times, and had been told by the agent what it was, to testify from his own knowledge as to the freight rate. 5. APPEAL-HARMLESS ERROR.

The admission of incompetent evidence tending to establish a fact proven by other uncontradicted and competent evidence is harm

less.

Appeal from Eastland County Court; S. A. Bryant, Judge.

Action by R. L. West and others against the Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Earl Conner and Clark & Bolinger, for appellant. J. R. Stubblefield and D. G. Hunt, for appellees.

JAMES, C. J. The court, by its charge, submitted the case for recovery by plaintiff West against the Texas Central Railroad Company on the theory of an oral contract of shipment of cattle, alleged to have been made by the agent of appellant, Texas Central Railroad Company, to transport the cattle from Mathews Station to Ft. Worth, and to have them at Ft. Worth by a certain time; that is, in time for next morning's market.