Pacific Co. v. Winton (Tex. Civ. App.) 66 S. W. 477; Bonn v. G. H. & S. A. Ry. Co. (Tex. Civ. App.) 82 S. W. 808; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 469, 31 Am. St. Rep. 537. To have given special charge No. 7 requested by defendant would have been to ignore this principle.

Special charge No. 8 requested by appellant was directly upon the weight of the evidence, in that it declared that, if the water car was inspected in the afternoon of February 21, 1904, or before it left Douglas on the morning of February 22, 1904, by defendant's inspector, and he exercised ordinary care in the inspection, and failed to discover the absence of the nut, the verdict should be for defendant. It was for the jury to say, notwithstanding such an inspection may have been made at Douglas, whether, in, view of the testimony of the inspector that a nut, though securely fastened, might work off in running a car the distance from Douglas to Osborne, another inspection should have been made after it reached there before plaintiff was put to work on the car. And it could not be assumed as a matter of law that such inspection as was made,

though ordinary care may have been exercised in making it, at Douglas, was sufficient, and relieved defendant from any further inspection between the time it was made and the occurrence of the accident.

We deem it unnecessary to discuss the remaining assignments of error, but will say that we believe none of them is well taken.

On account of the errors indicated in the tenth paragraph of the court's charge, the judgment is reversed and the cause remanded.

SENGERS-PLEADING.

Where, in an action for injuries to a passenger by the fall of an elevator, the petition, after specifically alleging wherein the elevator and its appurtenances were defective, alleged that as the proximate result of such defectsspecifically naming a number of them, and among them the negligence of the defendant in failing to keep the elevator and its appurtenances, or their respective parts, in repairadded the phrase, "and by reason of the other negligence herein alleged" the elevator on specified date fell with great force while plaintiff was a passenger, seriously and permanently injuring her, such allegations were sufficient to allege the causal connection between the acts of negligence specified and the injuries complained of.

a

2. PERSONAL INJURIES - PLEADING-SPECIFICATIONS.

Where, in an action for injuries, the uncontroverted evidence showed that the only injuries sustained by plaintiff, and on which she sought a recovery, were internal and invisible, her allegation that she was seriously and per

Rehearing denied June 28, 1905, and writ of error denied by Supreme Court.

manently injured in her womb and ovaries, causing prolapsus of the uterus and menstrual derangement, impairing the sexual organs, and her kidneys and urinary organs, causing her to suffer great physical and mental pain, etc., was not subject to exception for indefiniteness. 3. SAME-EARNING CAPACITY-PREJUDICE.

Where no evidence was offered of any sum that plaintiff would have been capable of earning in the future, because she was steadily growing more perfect in her profession, had she not been injured, defendant was not prejudiced by the overruling of a special exception to so much of her petition as alleged that she was earning $50 per month at the time of her injury; that she was steadily becoming more proficient, and would in a short time, not specified, but for the injuries, have been capable of earning a greater sum, not stated.

4. TRIAL STATEMENT Of Court.

Where, in an action for injuries by the fall of an elevator, on plaintiff's examination of a juror on his voir dire with reference to his examination of the elevator, defendant objected to such examination in the presence of the other jurors, a remark by the court, in the hearing of the entire panel, that he thought the jurymen had sense enough to know that the statement made by the witness in answer to such questions was not evidence, and, if defendant's counsel thought they did not have sense enough to know, the court would give them instructions, was not objectionable.

5. APPEAL-PREJUDICE.

Where the power by which an elevator was operated was changed after plaintiff had sustained injuries by a fall thereof, and a witness testified that at the time of the accident the elevator was set to run at a speed of 150 feet per minute, and that there was no change with respect to the elevator or its operation after the accident, until the substitution of power, defendant was not prejudiced by the sustaining of objection to a question with reference to the speed at which the elevator was set to run.

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

Action by Annie B. McGaffey against C. H. Alexander and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This was a suit brought by Annie B. McGaffey, through her next friend, Chas. N. McGaffey, against C. H. Alexander and C. H. Beauchamp, for damages on account of personal injuries alleged to have been sustained by Annie B. McGaffey while a passenger on an elevator owned and operated by appellants in an office building known as "North Texas Building," situated on Main street, in the city of Dallas. Annie B. McGaffey, having become of age pending this suit, filed an amended petition, by leave of the court, on April 28, 1904, alleging that she had arrived at her majority, and dropped the name of her next friend from the petition. For cause of action, she, in substance, alleged: That she arrived at her majority on the 12th day of March, 1902. "That defendants were common carriers of passengers by elevator in said building on the 13th day of December, 1901. That on the date last aforesaid the said elevator was neither safe, nor reasonably safe, in this: that it was negligently and improperly constructed without stops, brakes, resters, safeties, or grabs to catch going up or down, and was generally constructed in an unsafe

and unsubstantial way. That the defendants negligently and improperly permitted and allowed the said elevator, and the pump, tanks, and water power connected therewith, to become out of repair, in this: that the elevator was run by power derived from a steam pump, tanks, cylinders, pistons, and other mechanical devices, whose condition controlled the condition and safety, to some extent, of the elevator; that the bolts and screws of said elevator, steam pump, and mechanical devices were not properly or regularly tightened; that they were permitted to run with their screws and bolts loosened or lax; that the throttle valve of the engine was out of repair; that the automatic governor of the engine was out of repair, and would not control or regulate the speed of said engine; that the stops, brakes, resters, safeties, or grabs of said elevator were out of repair and would not work; that the operation of said stops, brakes, resters, safeties, or grabs was obstructed, and that they were so fastened that they would not and could not operate and perform the functions for which they were intended, and would not and could not stop the elevator when it fell; was constructed so that the controller cable, by means of which the operator raised and lowered the elevator at will, wrongfully, negligently, and improperly run through a groove or V-shaped slide, so that the said controller cable was not free to pass up and down as it should do, so that the turnbuckle thereon became wedged and caught, thereby interfering with the operation of the cable of the elevator, and stopping the cable in its movement up and down, and thereby rendering it impossible for an inexperienced operator to control said elevator;

was so constructed that the turnbuckle was wrongfully, negligently, and improperly attached to and made a part of the said controller cable at a point where the said controller cable should be smooth and even, where it runs through a groove or Vshaped slide wrongfully, negligently, and improperly provided, so that the said turnbuckle on the said controller cable became wedged and caught, thereby stopping said cable from operating, and rendering it impossible for an inexperienced operator to control said elevator. That the defendants wrongfully, negligently, and improperly employed inexperienced and incompetent servants to manage, control and operate said elevator. That the said defendants wrongfully, negligently, and improperly employed an inexperienced and incompetent boy to run said elevator between the hours of 12 m. and 1 o'clock p. m., while the regular elevator man was at luncheon, and that said accident and said damage to the plaintiff occurred while the said elevator was being operated by said elevator boy. That the said operator of said elevator and engineer in control of said engine were incompetent, inexperienced, and unskillful in the matter of running elevators and engines, and that they and each of them were incompetent

to perform their respective duties, and were grossly negligent and careless in the performance of their said duties. That the motive power of said engine was, by the said negligence of the said engineer, permitted to give down and become insufficient to hold said elevator in the operation thereof. That the said engine and elevator were old, rickety, and out of date for the purposes for which they were used. That as the direct and proximate result of the negligence of said defendants and their servants in fastening and obstructing the brakes, stops, resters, safeties, or grabs as aforesaid, and of the negligent and improper construction of said elevator and engine as aforesaid, and the negligence of the defendants and their servants in improperly and negligently locating the turnbuckle on the said controller cable at the point of the groove or V-shaped slide aforesaid, and the negligence of the defendants and their servants in failing to put the said turnbuckle where it could operate freely up and down, and the negligence of the defendants and their servants in not loosening the said turnbuckle from the said groove or V-shaped obstruction when the elevator commenced to fall, and the negligence of the defendants in failing to keep said elevator and engine or their respective parts in repair as aforesaid, and the negligence of the defendants in employing inexperienced and incompetent servants as aforesaid, and the negligence of the defendants' servants in operating said elevator and engine as aforesaid, and the negligence of the defendants in not providing safe, or reasonably safe, safety devices, and by reason of other negligences herein alleged, the said elevator on, to wit, the 13th day of December, 1901, fell with great force, violence, and speed from the fourth floor of said building to the first floor thereof, a distance of about 100 feet, while the said Annie B. McGaffey was a passenger thereon, seriously and permanently injuring her, the said Annie B. McGaffey in her womb, ovaries, causing prolapsus of the uterus, causing menstrual derangement, impairing the sexual organs, injuring and impairing her kidneys and urinary organs, causing her to suffer great physical and mental pain, and seriously and permanently injuring her in her back and spine and in her hips, and in all other parts and organs of her body, both internally and externally, and seriously and permanently injuring her in her nervous system, causing the said Annie B. McGaffey to suffer great physical and mental pain, destroying her health, making her practically an invalid, destroying and impairing her capacity to earn money in her profession as a stenographer or otherwise, greatly impairing her nervous system, making it reasonably certain that she will continue to suffer great physical and mental pain and be an invalid and be incapacitated to earn money or to labor or to enjoy good health during all the balance of her natural life, by reason of all which she has been dam

aged in the sum of $25,000; that the plaintiff was gradually growing more perfect and competent as a stenographer and shorthand writer at the time of the accident, and would have continued to do so, but for said accident, and she has had to abandon said profession as the result of said accident. The plaintiff further shows to the court that she was a stenographer, shorthand reporter, and typewriter, and followed her occupation as such at the date she was injured as aforesaid, and was on said date in the employ of Gilbert H. Irish, an attorney at law, as his office stenographer, and the said Irish has his law office on the fifth floor of the said North Texas Building, and she performed her duties as such stenographer in the office of the said Irish, on the fifth floor of said building, and at the time of said accident (the falling of said elevator) she got upon said elevator and became a passenger thereon at the fifth floor of said building for the purpose of going to the ladies' toilet room for the fourth and fifth floors of said building, which is located on the second floor, and which is provided by the said defendants for the ladies of both of said floors (she expecting to go there and wash her hands, preparatory to leaving her said place of business, and go home for the day), and the said elevator fell as aforesaid while she was upon the same, and without any want of ordinary care upon her part. Plaintiff further represents and shows to the court that the said Annie B. McGaffey was at the time she received the injuries aforesaid earning in her business aforesaid the sum of, to wit, $50 per month, and she was all the time steadily improving and becoming more perfect in her said profession, and would after a short time, but for the injuries aforesaid, have been capable of earning, and would have earned a greater sum per month than the sum of, to wit, $50 per month; that by reason of the injuries aforesaid, and the condition aforesaid resulting therefrom, she has become unable to follow her said occupation or to earn the sum of, to wit, $50 per month, or any part thereof, and her capacity to follow her said profession has been destroyed by the negligence of the defendants for all time." Appellants answered by general and special exceptions and general denial. The case was tried before a jury, and resulted in a verdict and judgment in favor of appellee in the sum of $1,200.

Finley, Knight & Harris, for appellants. Gilbert H. Irish and Marcus M. Parks, for appellee.

EIDSON, J. (after stating the facts). Appellants' first and second assignments of error are as follows:

"First. The court erred in overruling defendants' special exception to the petition of plaintiff, No. 2, as contained in defendants' amended original answer, as follows: 'Defendants specially except to said petition

wherein it is alleged that the bolts and screws of said elevator, steam pump, and mechanical devices were not properly or regularly tightened; that they were permitted to run with their bolts and screws loosened or lax-for the reason that it is not alleged that such condition, if it existed, caused or contributed to cause the accident complained of herein. Wherefore defendant says that such plea is insufficient in law, and of this prays the judgment of the court.'

"Second. The court erred in overruling defendants' special exception to the petition of plaintiff, No. 3, as contained in defendants' amended original answer, as follows: 'Defendants specially except to all that part of said petition wherein it alleges that said engine and elevator were old and rickety and out of date, for the reason that it is not alleged that such condition, if it existed, caused or contributed to cause the accident complained of herein. Wherefore defendant says such plea is insufficient in law, and of this prays the judgment of the court.'

We do not agree with the contention of appellants. The petition of appellee, after alleging specifically wherein and in what manner the elevator and its appurtenances were defectively constructed and out of repair, alleged that, as the proximate result of such defects-specifically naming a great many of them, and among them the negligence of the defendants in failing to keep said elevator and its appurtenances, or their respective parts, in repair, as aforesaid— added the phrase “And by reason of the other negligences herein alleged, the said elevator, on, to wit, the 13th day of December, 1901, fell with great force, violence, and speed from the fourth floor of said building to the first floor thereof, a distance of about 100 feet, while the said Annie B. McGaffey was a passenger thereon, seriously and per manently injuring her, the said Annie B. McGaffey," etc. These allegations are amply sufficient to allege the causal connection between the acts of negligence specified in appellants' exceptions and the injuries complained of.

Appellants' third, fourth, fifth, and sixth assignments of error are addressed to the action of the court below in overruling special exceptions Nos. 4, 5, 6, and 7 to appellee's petition. These exceptions assail the sufficiency of plaintiff's petition upon the ground that it does not set forth with reasonable clearness and certainty the nature and extent of the injuries alleged to have been sustained by appellee. These assignments of error should be sustained, were it not that the uncontroverted testimony shows that the only injuries sustained by appellee, and upon which she sought a recovery, were internal and invisible, and therefore, it was impracticable to have given a more specific description of their nature or extent; and, while it might have been more accurate

pleading to have so alleged in her petition, the action of the court in overruling said exceptions, in view of the evidence, was harmless.

Appellants' seventh assignment of error complains of the action of the court in overruling his special exception to that part of plaintiff's petition which alleged that plaintiff was earning $50 per month, and that she was at that time steadily improving and becoming more perfect in her profession, and that she would in a short time, but for the injuries aforesaid, have been capable of earning and would have earned a greater sum per month than $50, for the reason, as alleged in said exception, that said pleading does not state how long it would have been before she would have been earning a greater sum than $50 per month, and because it does not state how much greater sum than $50 per month she would have earned in the future, but for such accident; nor does it allege when she would have been capable of earning such greater sum. The action of the court complained of in this assignment, if error, was harmless, in view of no evidence being offered on the trial of any sum that appellant would be capable of earning by reason of the fact that she was steadily growing more perfect in her profession.

Appellants' eighth assignment of error is as follows: "The court erred in his remarks made before the regular panel of jurors for the week from which the jury in the case was necessarily to be selected, and from which it was selected, with reference to the examination of the juror J. N. Oram by plaintiff's counsel, and objection made thereto by defendants' counsel, as shown by bill of exceptions No. 1." Appellants' proposition under this assignment is as follows: "The remarks of the court were wholly gratuitous, discourteous, and calculated to prejudice the jurors against counsel for appellants, and thereby cripple their efforts in behalf of appellants in the defense of the suit, and therefore prejudicial and hurtful to appellants in the trial of the cause." It appears from appellants' said bill of exceptions that while counsel for plaintiff was examining the juror Oram, who was one of the regular panel, in the presence of the other jurors of the panel for the week, from which the jury to try the case was required to be selected, plaintiff's attorney propounded certain questions to said juror with reference to the examination by him of the elevator involved in this suit, and elicited from him answers as to conditions which he found to exist, to which questions and answers, in the presence of the other jurors of the panel for the week, counsel for the defendant objected upon the ground that the witness was making statements with reference to material matters in the case in the presence of the panel of jurors from which the jury would be selected, and that this was improper and prejudicial to defendant. Upon coun88 S.W.-30

sel stating the objection, the judge of the court remarked in the presence and hearing of the entire panel for the week from which the jury to try the case was to be selected, and was in fact selected, that he thought the jurymen had sense enough to know that the statements made by said Oram in answer to questions propounded to him by said counsel touching his qualifications were not evidence, and, if counsel for defendants thought they did not have sense enough to know, the court would give them instructions, to which remarks and comments of the judge counsel for defendants excepted. There was no error upon the part of the court below in the matter complained of by this assignment. The examination of the juror was proper, and there was no necessity for the other members of the panel to be retired. The trial of a case would be unreasonably retarded if all of the panel of a jury except the juror being examined on his voir dire should be required to retire every time the juror being examined was interrogated in reference to facts material to the case. We think the intelligence of the average juror is of a sufficiently high order to justify the court in assuming that no prejudice would result to the parties to the suit by the other jurors of the panel hearing the examination of such juror on his voir dire; and we do not think the remarks of the court were intended to, or had the effect to, prejudice appellant in the trial of the case, or in any way injuriously affect the efforts of his counsel in his behalf during the progress of the trial. Appellants' ninth and tenth assignments of error, which are presented together, are as follows:

"(9) The court erred in sustaining the objection urged by plaintiff's counsel to the question propounded to the witness J. W. Glasgow in reference to the speed for which the elevator in question was set to run, as shown by bill of exceptions No. 2.

"(10) The court erred in the remarks and comment made by the court with reference to the question propounded by plaintiff's counsel to the witness J. W. Glasgow with relation to the speed for which the elevator in question was set to run; the effect of said remarks and comments being that the matter of speed for which the elevator was set to run was wholly immaterial in the case, as shown by bill of exceptions No. 2."

It does not appear from appellants' said bill of exceptions to what time the question asked this witness related. It appears from the bill of exceptions that there was a change in the operation of the elevator after the accident-that electric power was substituted for hydraulic. The elevator was operated by hydraulic power at the date of the accident, and continued to be so operated for some time thereafter, when electric power was substituted for hydraulic; and this witness operated the elevator after such substitution, as well as before. It does not appear

from the bill of exceptions that the question sought to elicit from the witness the rate of speed the elevator was set to run while it was being operated by hydraulic power. In view of the evidence in the record relating to the manner of operating the elevator at the time of the accident, we do not think it would have been admissible to show the rate of speed it was set to run when being operated by electric power. For this reason, there was no error in the action of the court in excluding this testimony. And further we are of the opinion that, if it was error to exclude this testimony, such error was harmless, in view of the testimony of appellant that the elevator at the time of the accident was set to run at a speed of 150 feet per minute, in connection with his testimony and that of the witness Glasgow to the effect that there was no change with respect to the elevator or its operation after the accident, until the substitution of electric for hydraulic power.

With respect to the matters complained of in the tenth assignment of error, it does not appear from the bill of exceptions that the remarks of the court objected to were made in the presence or hearing of the jury, so that they could have been in any manner affected thereby.

The other assignments of error presented in appellants' brief relate to the refusal to give special charges asked by them, and to alleged error in the general charge of the court. In view of the pleadings and evidence in this case, we are of the opinion that none of these assignments is well taken, and therefore overrule them.

The testimony in the record supports the allegations of negligence against appellants, as contained in appellee's petition, and also supports the allegations as to the injuries sustained by the appellee, and the amount of the verdict of the jury is sustained by the evidence.

Finding no reversible error in the record, the judgment of the court below is affirmed.

RAY v. PECOS & N. T. RY. CO. et al. (Court of Civil Appeals of Texas. June 14, 1905.)

1. PLEADING-TRIAL-AMENDMENT.

A pleading indorsed a "trial amendment," setting up the same matters that had been pleaded in a supplemental petition, to which a demurrer had been sustained, and not containing the necessary averments to make it an amended petition, cannot be considered as a trial amendment.

2. SAME-MOTIONS-NECESSITY OF WRITING.

A motion attacking a pleading filed as a trial amendment should be in writing, so as to preserve the exceptions contained therein. 3. APPEAL-HARMLESS ERROR.

The court's striking out a pleading was not injurious to the person presenting it, where he was allowed to prove the matters alleged therein.

4. TRIAL-REMARKS OF COURT-PREJUDICE.

Remarks by the court, in the jury's presence, on request for time to prepare a bill of exceptions, that it doubted that it was intended by the Legislature that a jury trial should be delayed by repeated demands for time to prepare a bill of exceptions, was not prejudicial to plaintiff, where, after an examination of the statute, it was further stated that he was entitled to the time, if it was desired.

5. SAME ARGUMENT OF COUNSEL-ALLOWANCE OF TIME.

Where no objection was made to the allowance of time for argument, and plaintiff's counsel argued for 35 minutes of the hour allowed him, and then closed, stating he did not have sufficient time to argue, without requesting more time, plaintiff cannot complain that the time was unequally distributed.

6. BILL OF EXCEPTIONS PREPARATION BY COURT.

Where a party is dissatisfied with the bill of exceptions prepared by the court, he should present his bill prepared as prescribed by Sayles' Ann. Civ. St. 1897, art. 1369, and in the absence of such a bill the appellate court must accept the bill prepared by the court.

7. MASTER AND SERVANT-FELLOW SERVANTS. Where plaintiff was injured by an engine striking timber lying on the track, and it appeared that the timber was left there by plaintiff and others engaged in the same work and working to the same purpose at the same time and place and in the same grade, the issue of fellow servants was properly submitted to the jury.

Where plaintiff was injured by an engine striking a timber lying on the track of defendant company, a requested instruction, though defective in not limiting the recovery to the company whose employés were operating the engine, was sufficient to direct the court's attention thereto, and made it incumbent to charge in reference thereto.

10. SAME-CONTRIBUTORY NEGLIGENCE-NEGLIGENCE OF MASTER.

Where a servant is not guilty of contributory negligence, and his master is guilty of negligence which is the proximate cause of injuries, it is liable, though the negligence of fellow servants may have concurred in producing the result.

11. SAME-PROXIMATE CAUSE.

The proximate cause of an injury is not necessarily the last cause, or the one nearest the injury, but such act wanting in ordinary care as actively aided or concurred in producing the result; and hence where plaintiff was injured by an engine of defendant company striking a timber lying on its track, and left there by plaintiff and other employés of another company, if it required the agency of the fellow employés of plaintiff and defendant company to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of the act of the fellow servants will not exculpate the other agency, because it would. still be the efficient cause of the injury.