the city limits. That case was cited with approval in the more recent case of Fath v. Tower Grove & Lafayette Ry., 39 Mo. App. 447. The ordinance is not unreasonable or void, nor does it impose upon public carriers of passengers an unreasonable duty toward those under their care, and whom they undertake to carry safely.

Another objection urged against this ordinance is that it creates a new duty upon the part of carriers of passengers, and that the violation of that duty is negligence, and such negligence causing injury creates liability. This same question has been before this court on a number of occasions, and, while the decisions upon it are not uniform, in the recent case of Sluder v. St. Louis Transit Company (not yet officially reported) 88 S. W. 648, in an able and exhaustive opinion by Gantt, J., in which all the authorties are reviewed, it is held that such ordinances, being in the nature of police regulations for the safety of passengers upon street cars, were within the power and authority of the city to pass under its charter. This decision was by the court in banc, and must be considered as finally settling the question now under consideration.

Instruction numbered 4 given on behalf of plaintiff is complained of upon the ground that it is contradictory in its terms, in that it requires in one part that the persons in charge of said car should "use a very high degree of care," and in another, of the conductor, "ordinary care," thus allowing plaintiff to leave the said car whilst it was in motion, and must have been confusing to the jury. We are unable to agree in this contention, as it seems to us to be without merit, for, if the law required of those in charge of the car the exercise of a "very high degree of care"-which seems to be conceded by defendant-and the instruction only required of the conductor ordinary care, we are unable to perceive how the jury could have been misled, or the rights of the defendant prejudiced, thereby. If the first proposition be correct, then it was an error

in favor of the defendant to require of the conductor only ordinary care, and of which defendant cannot complain. Certainly the judgment should not be reversed on that ground.

Another insistence is that the court erred in refusing the first instruction asked by the defendant and in giving instruction No. 1 of its own motion. The only difference in these two instructions is that in defendant's instruction the jury was told that if plaintiff stepped from said car while in motion and the conductor of said car warned her not to step from it before she alighted therefrom, she could not recover, while the instruction given by the court of its motion was that if the conductor, in addition to warning plaintiff not to step from said car before she alighted therefrom, "exercised reasonable care to prevent her from alighting therefrom," she could not recover, and the verdict must be for defendant. In a word, the instruction given by the court of its own motion only required of the conductor the exercise of reasonable care to prevent plaintiff from alighting from the car while in motion, which was nothing more than his duty anyway, for it is common knowledge that it is dangerous for passengers to step from cars upon which they are traveling when such cars are in motion. No conductor who is regardful of his duties toward his passengers would neglect to exercise ordinary care to prevent injury to them while getting off or on the car of which he has control. There was therefore no error in refusing the one instruction and giving the other. A point is made with respect to the amount of the verdict, which is claimed to be excessive, but, as the case must be reversed and the cause remanded, it seems unnecessary to pass upon that question.

For these intimations the judgment is reversed, and the cause remanded.

BRACE, C. J., and GANTT and FOX, JJ., concur. MARSHALL, VALLIANT, and LAMM, JJ., concur in result.

CHICAGO, R. I. & M. RY. CO. v. HARTON. (Court of Civil Appeals of Texas. July 1, 1905.)

1. MASTER AND SERVANT-NEGLIGENCE-PERSONAL INJURIES-EVIDENCE-EXPERT MEDICAL TESTIMONY.

In an action by an employé for injuries through negligence, plaintiff's expert witness testified that as a physician he attended plaintiff immediately after the injury, and found a fracture of the skull, as he then diagnosed it; that such an injury would materially affect one's physical condition; and that patients rarely recovered entirely therefrom. Witness also stated on cross-examination that he had examined plaintiff about 18 months before the trial, and that he then seemed to be an entirely well man, and at the trial presented that appearance, and that a fracture of the outer table of the skull only was not a dangerous or permanent injury. There was also other evidence that plaintiff's injuries were not serious, and that for a year or more he had been working as a farm laborer. Held, that defendant was entitled to show, if possible, by the witness, that his original diagnosis of the injury to the skull was incompatible with subsequent develop

ments.

2. SAME-FORM OF QUESTIONS.

There was nothing objectionable in the form of the question asked the witness: "If a man was injured more than a year and a half ago, and he was for more than a year prior to the present time seen doing ordinary farmwork, and if he looked to be in the condition that [plaintiff] seems to be, what would be your opinion as to whether he had suffered from a fracture of the inner table of the skull ?" 3. SAME-MEDICAL EXPERTS.

In an action by an employé for injuries, the opinion of a physician, based on the fact that plaintiff was doing farmwork for more than a year prior to the trial, and seemed to be in good health, as to whether or not plaintiff's brain was in any way affected by the injury, was competent.

Appeal from District Court; Dallam County; Ira Webster, Judge.

Action by J. W. Harton against the Chicago, Rock Island & Mexico Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

For prior report, see 81 S. W. 1236.

N. H. Lassiter and Robt. Harrison, for appellant. Del W. Harrington and Wallace & Lumpkin, for appellee.

CONNER, C. J. This suit was brought by appellee against the Chicago, Rock Island & Mexico Railway Company in the district court of Dallam county, Tex., on the 29th day of September, 1903, to recover damages for injuries alleged to have been sustained by him on the 3d day of April, 1903, while he was in the employ of the appellant in its shops at Dalhart, Dallam county, Tex., in the capacity of machinist helper. On the day appellee was injured he was assisting a machinist, under whom he had been assigned to work, in installing a compressed air jack. It was alleged that by reason of certain defects in its construction the piston or plunge would not work in the cylinder of said air jack and became fastened in said cylinder; 88 S.W.-54

that in the effort to withdraw or eject said piston the agents, servants, and employés of the appellant in a careless, unskillful, and negligent manner turned a heavy pressure of steam into said air jack, which blew it to pieces; that by reason of said explosion a heavy substance struck appellee on the head, thereby fracturing his skull, breaking his cheek bone, breaking and crushing his nose, cutting a large gash across his chin, knocking out one of his teeth, and impairing his hearing. It was further alleged that appellee was not conversant with the construction of the appliances in use by appellant, that he was not warned of any danger, that he was in the discharge of his duties at the time, and that appellant was guilty of negligence in so applying the steam and in so failing to warn him of danger. The appellant denied generally the allegations in appellee's petition, and alleged that appellee was guilty of contributory negligence, and that he assumed the risk of the danger. The case was tried on the 22d day of November, 1904, and a verdict and judgment was rendered for appellee in the sum of $7,500.

We think the second and third assignments of error must be sustained. Dr. J. A. Hedrick, appellee's principal expert witness, on cross-examination was asked the following question by appellant's counsel: "If a man was injured a year and a half ago, and he was for more than a year prior to the present time seen doing ordinary farmwork, and if he looked to be in a condition that Mr. Harton seems to be, what would be your opinion as to whether he had suffered from a fracture of the inner table of the skull?" The answer of the witness to this question was excluded by the court on appellee's objection that the question was not "in the proper form." The following further question was also propounded by the appellant: "If Mr. Harton, who was injured in this way, has gotten up, and has been doing farmwork for more than a year, and seems to be in good health, I will ask you whether or not, in your opinion, his brain was affected in any way by that injury in April a year ago?" The answer to this question was also excluded by the court on appellee's objection that the answer would be "an opinion as to the condition of the plaintiff, and that the witness' opinion as to his appearance would not be that of an expert." There was evidence tending to support the facts stated in the hypothetical questions quoted, and Dr. Hedrick had testified that he attended appellee as a physician immediately after his injury, and examined his injuries; that among others, as he then diagnosed it, he found a fracture of the skull at the base of the brain-this diagnosis being induced principally by flow of blood from one of appellee's ears; that such a fracture was very dangerous, and patients rarely recovered entirely therefrom; that an injury of that kind would materially affect the physical condi

tion of one who had received it, shocking the nervous system, and rendering the injured party liable to epilepsy and kindred diseases. He had also stated on cross-examination that he had examined appellee about 18 months before the trial, and that he then seemed to be an entirely well man, and at the time of testifying presented that appearance; that the skull consisted of an outer and an inner table; that a fracture of the outer table only was not a dangerous or permanent injury. There was also evidence tending to show that appellee's other injuries were not serious, and that for a year or more appellee had been performing the ordinary duties of a farm laborer.

In this condition of the testimony, it seems to us that it was quite important to appellant to show by Dr. Hedrick, if it could be done, that his original diagnosis of the injury to the skull was incompatible with subsequent developments. Much of his testimony in chief tending to show permanent injury was in answer to hypothetical questions put to him in behalf of appellee. Appellant certainly had the right to cross-examine the witness as to matter drawn out on his examination in chief, and was not bound to accept as true the facts as hypothetically stated in appellee's behalf, and we see no reason, and particularly nothing in the form of the questions, why appellant should not be permitted to offer the opinion of Dr. Hedrick on the hypothetical case made by the proof, as appellant insisted it was. It was for the jury to finally determine the true state of the case as made by all of the competent evidence. It seems hardly necessary to notice the objection that the answer sought was but an opinion. The witness was, as stated, interrogated as an expert by appellee, and it is elementary that opinions of medical men are competent on subjects within the range of their profession. Rule 27, p. 107, and rule 30, p. 144, Lawson's Expert and Opinion Evidence, and illustrations given in the notes.

Other assignments need not be noticed, but because of the errors mentioned the judgment will be reversed, and the cause remanded.

An assignment of error that the court proceeded with the trial after having quashed the service of process is not sustained where the return was amended by permission before the conclusion of the trial, and the parties affected by the defective return answered prior to the motion.

2. CONTINUANCE-IMMATERIAL EVIDENCE.

In an action on a liquor dealer's bond, alleging a breach in permitting a minor to remain on the premises, where the evidence fixed his status as a minor at the date of the sales, an application for a continuance because of

Where a witness was permitted to explain his reasons for desiring "to see defendants get out of this suit," the exclusion of an additional explanation that he desired it because he knew prosecuting witness to be worthless was harmless.

4. TRIAL-EVIDENCE-REBUTTAL.

In an action on a liquor dealer's bond, alleging a breach in permitting a minor to remain on the premises, it was proper for the district attorney to state that the minor's mother was mentally unsound, as rebutting any unfair inference from the failure to put her on the stand.

of

Under Rev. St. 1895, art. 1239, permitting an officer to amend his return of service citation so as to accord with the true facts at any time during the term, where there was no denial of proper service, and it was not asserted that the amendment was false or failed to show proper service, and its filing was during the term, before motion for new trial was acted on, the court was not without jurisdiction to proceed with the trial; and hence an application for certiorari to perfect the record so as to show the date on which the motion to quash the sheriff's return and the date on which the amended return was filed, which, if allowed, would not change the result, must be denied.

7. APPEAL-HARMLESS ERROR.

The exclusion of an answer of a witness was not reversible error where the issue to which the testimony related was otherwise established.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Action by the state against H. D. Brewster and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Albert Stevenson and J. C. Houts, for appellants.

CONNER, C. J. The state, through her proper officer, instituted this suit against appellant H. D. Brewster and the sureties on his retail liquor dealer's bond, alleging four infractions thereof, viz., three separate sales of intoxicating liquors to Boley Langley, a minor, and by permitting said minor to enter and remain on the premises where the sales occurred on the dates specified in the petition. The prayer was for a recovery of $500 for each breach of the bond charged, aggregating $2,000. The trial resulted in a verdict and judgment for appellee in the sum of $500 because of-using the language of the verdict-"one infraction" of the bond, "for permitting a minor to enter and remain." It is undisputed that the appellant

named was engaged in the business of a retail liquor dealer in Mineral Wells, Tex., as alleged, and as such gave the statutory bond declared upon, with the other appellants as sureties. It seems also quite conclusive that Boley Langley was a minor, as alleged, and the jury's verdict to the effect that he was permitted to enter and remain in appellant's house or place of business is amply sustained by the evidence, so that the material questions presented on this appeal relate to matters of procedure on the trial.

It is first complained that the court erred in proceeding with the trial after having sustained appellant's motion to quash the service of the citation upon the sureties sued. No statement follows this assignment, and we would be authorized to disregard it. Besides, an examination of the record fails to disclose any error in the action complained of. It is true, the court appears by proper order to have sustained a motion to quash the service mentioned, but the order likewise granted the state permission to have the sheriff's return amended. No bill of exception appears to have been taken at the time, and, for aught that appears to the contrary, the amendment was in fact made before the conclusion of the trial. The record also discloses the fact that the sureties affected by the defective sheriff's return appeared, together with appellant, by an original answer filed September 6, 1904, which on its face seems to have been presented prior to the motion. At least, we are unable to say that the motion to quash was presented before the answer in due order of pleading; the motion itself not appearing of record.

In the second assignment, appellants complain of the action of the court in overruling their application for continuance.

The ap

plication to continue appears to have been made because of the absence of some 10 witnesses. As to some of these witnesses the diligence shown was insufficient, and the testimony of all of them, as set out in the bill of exceptions, appears to be immaterial, in the light of the evidence on the trial and of the verdict of the jury. By the greater number of the absent witnesses appellants desired to prove that Boley Langley, at the time of the alleged infraction of appellants' bond, presented the general appearance of a person over the age of 21 years. Numerous witnesses testified on the trial to this effect, and the jury evidently gave appellants the full benefit thereof, in that the verdict sustained appellant Brewster's plea, of the tenor that, if sales had been made to Boley Langley, as alleged in appellee's petition, they were made in good faith, believing him to be at the time over age. Hiram Langley (the father of Boley Langley), Joe Langley (a brother), and E. Medline all testified positively to the age of Boley Langley, and unmistakably fixed his status as that of a minor at the date of the sales established by the evidence. The fact, therefore, that Boley Lang

ley presented the appearance of one of iawful age, was immaterial upon the issue found against appellants. See Cox v. Thompson, 73 S. W. 950, 7 Tex. Ct. Rep. 236.

The third assignment points out no error, and the fourth assignment is substantially disposed of in what we have said in disposing of the second.

The fifth, sixth, and seventh assignments present the question of collusion, which can not bind the state.

The action of the court in refusing to exclude the answer of Frank Langley, that he had been in jail on the charge of unlawfully carrying a pistol on or about his person, seems entirely nonprejudicial. Frank Langley testified for appellants to the effect that, in his "best judgment," Boley Langley was 21 or 22 years old. We think it evident from his whole statement that he had no accurate knowledge on the subject, and that he was but expressing his mere opinion of Boley Langley's age; and in the light of the unmistakable character of the testimony hereinbefore referred to, that fixes Boley Langley's age, we think the ruling complained of, if erroneous, is entirely immaterial.

The error complained of in the tenth assignment is likewise harmless. The witness Robbins in fact was permitted to give an explanation of his reason for desiring "to see the defendants get out this suit"; and the exclusion of the additional explanation that he so desired because he knew "the Langleys to be a worthless crowd, and believed these suits to be a put-up job," which was excluded by the court, could have had no effect beneficial to appellants. Such reason certainly constituted no defense to the suit. However "worthless" the Langleys may have been, on proof of the facts alleged in the state's petition it was the duty of the jury to render the verdict they did, and we fail to find even a contention that the proof failed to show that Boley Langley was not permitted to enter and remain in appellant's place of business, within the meaning of the law.

In the eleventh assignment, complaint is made that the district attorney was permitted to state his reason for failing to put Mrs. Hiram Langley, the mother of the minor, upon the stand. The proposition asserted is in effect that he (the district attorney) was not qualified as an expert, and did not state the facts upon which he predicated his opinion that she was "mentally unsound." While the mental state of Mrs. Langley was not in issue, the record suggests that this testimony was permitted to meet the real or possible contention in behalf of appellants that the mother best knew the age of Boley Langley. If so, it was competent for the state to rebut any possible unfavorable inference that might be drawn from the failure to put the mother upon the stand. At all events, the ruling seems harmless.

We think the court's charge not subject to the objections urged thereto, and that it suf

ficiently presents the rule relating to the burden of proof.

The assignment that "the court erred in refusing to grant defendants a new trial because the verdict of the jury is contrary to the law and evidence, as complained of in the twenty-eighth ground of defendants' motion for a new trial," is too general for consideration, particularly in view of the fact that the twenty-eighth ground of the motion is not set out, and that in the statement in support of the assignment we are referred to the "statement of facts, Tr. pp. 9 to 63."

We conclude that no reversible error has been presented, that the evidence supports the verdict and judgment, and that the judgment should be affirmed. Judgment affirmed.

On Rehearing.

In connection with the motion for rehearing appellants have filed an application for a writ of certiorari to perfect the record so as to show the date upon which their motion to quash the sheriff's return on the citation to two of appellants and the date upon which the amendment to said return was made and filed. The motion for certiorari, which is duly verified by affidavit of counsel, shows that appellants' motion to quash the return of the sheriff of Tarrant county upon the citation to appellants R. L. Crowdus and D. F. Eggleston was filed in the trial court upon the 6th day of September, 1904, and that the amendment to the return was not made until September 25, 1904, and not filed in the court until the next day. It is hence insisted that a perfected record will establish error in our conclusion on original hearing to the effect that it did not appear that the motion to quash had been filed prior to the filing of the answer of appellants, or that the amendment had not been made before the conclusion of the trial, which was on September 12, 1904.

The statute (article 1410, Rev. St. 1895) provides for the delivery of the transcript to the party so desiring, and it has more than once been held that it is the duty of an appellant to see that the transcript is correct before the case is submitted. Ross v. McGowen, 58 Tex. 603; Railway Co. v. Scott, 78 Tex. 360, 14 S. W. 791; Hayslip v. Pomeroy (Tex. Civ. App.) 32 S. W. 124. It may therefore be well doubted whether a motion to correct the record should be granted on motion for rehearing in cases where, as here, the omitted facts are at least apparently material in the consideration of the very assignment of error relied upon, and to which they naturally relate. It is doubtless within our power to do so, and under certain circumstances our duty as well. Ry. Co. v. Cannon (Tex. Sup.) 31 S. W. 498. But however this may be, we are of opinion that the present motion should be overruled for the reason, if for no other, that the desired facts would not authorize an alteration of our original conclusion on the

questions presented in the assignment of error, which assignment is to the effect that there was error in proceeding with the trial after having quashed the sheriff's return on the citation; the proposition under the assignment being substantially that the court had "no jurisdiction" to proceed to trial after the quashal of the return. Admitting that the motion to quash was filed on September 6th, as stated in the motion for certiorari, there is yet nothing in the record to show that such filing was prior to the filing of the answer. The opening paragraph of appellants' original answer, also filed September 6th, is as follows:

"Now comes H. D. Brewster, R. L. Crowdus, and D. F. Eggleston, defendants in the above entitled and numbered cause, subject to the right to file motion to quash citation and service in this case, and the court's action thereon, and answer as follows."

This certainly justifies the inference indulged on original hearing that at the time of the filing of the answer no motion to quash had been filed. The reservation in the answer goes to "the right to file motion to quash citation and service," and not to the right of insisting upon one already filed. Besides, while the action of the court was irregular, it appears from the record that it was the sheriff's return that was defective. It is the proper service of the citation that gave the court jurisdiction, and not the return. The return is but the evidence that service of the citation has been made, and, if defective, the court undoubtedly may permit the officer to amend it so as to accord with the true facts at any time during the term, which was the case here. Rev. St. 1895, art. 1239; Kitchen v. Crawford, 13 Tex. 519, 520. There is no denial of proper service, nor is it asserted that the amendment was false or failed to show proper service; and its filing was during the term, and before appellants' motion for a new trial was acted upon. We therefore conclude that the court was not without jurisdiction to proceed with the trial, as asserted in appellants' proposition.

Appellants, in their motion for rehearing, also very vigorously attack our conclusion; that no reversible error was committed by the court in excluding the answer of Frank Langley, to the effect that his confinement in jail (drawn out by appellee on cross-examination) was on the charge of unlawfully carrying a pistol on or about his person. It is insisted that confinement on such a charge is not proper matter of impeachment, and that the testimony of this witness was important on the issue of Boley Langley's age. It may be, as in effect conceded on original hearing, that the ruling was erroneous; but it confessedly went to the credibility of the witness only, and a re-examination of the record strengthens our conclusion that it should not cause a reversal. The only important issue to which his evidence related was that