strument with these stipulations in it. It may be that under such a state of facts, there being no fraud or deception on the part of the other party, the written contract would be taken as conclusively establishing the true agreement.

But against the mistake of both parties, by which, in the effort to reduce the agreement which they had made to writing, they mistake its terms so that the writing does not represent the real contract, equity will grant relief. Pom. Eq. Jur. § 845; Institution v. Burdick, 87 N. Y. 40; Kilmer v. Smith, 77 N. Y. 226; Silbar v. Ryder, 63 Wis. 106, 23 N. W. 106; Manufacturing Co. v. Langworthy, 18 Wis. 444; Gammage V. Moore, 42 Tex. 171; Canedy v. Marcy, 13 Gray, 373; Harrell v. De Normandie, 26 Tex. 121; Farley v. Deslonde, 69 Tex. 461, 6 S. W. 786.

Where both parties are thus mistaken as to the effect of the writing and ignorant of its misstatement of the agreement, the failure of one to understand, through omission to read to give sufficient attention to its contents, cannot avail as a defense to the other, equally in fault, against a suit to correct such mistake. Referring to this subject, the court of appeals of New York, in the first case above cited, says: "Indeed, in most of the cases to be found in the books, where relief has been sought against written instruments on the ground of fraud and mistake, the complaining parties were chargeable with the same kind of negligence which exists in this case, to wit, the omission to read or understand the contents of instruments executed or accepted. It has certainly never been announced as the law in this state that the mere omission to read or know the contents of a written instrument should bar any relief by way of a reformation of the instrument on account of mistake or fraud. It is the general rule that where a written instrument fails to conform to the agreement between the parties in consequence of the mutual mistake of the parties, however induced, or the mistake of one party and fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement between the parties." In most of the cases referred to the provisions of the writings against which relief was sought were quite as plain as those of the instrument here involved. The mere fact, therefore, that Ward and his attorney failed to understand the writing according to its true legal effect, when the opposite party shared in the error, cannot be held by this court as legally precluding him from relief.

The jury found that Ward was guilty of no negligence in not preventing the rendition of the judgment, and we cannot hold that there was no evidence to warrant that finding. If his mistake as to the agreement was an excusable one it is sufficient also to explain his want of further attention to the case. Under an agreement such as he be

lieved the writing to express, no judgment could have been rendered against him for the debt; but, on the other hand, having the right to surrender the land, his surrender of it. which he had signified his willingness and purpose to make, would have ended his connection with it. Nothing new having occurred to call his attention to the character of the agreement really expressed in the writing, there was nothing to suggest to him that such a judgment might be taken upon it, or that any defensive steps on his part were necessary.

After a very careful examination of the case, we have reached the conclusion that no error of law appears in the proceedings, and hence that this court cannot interfere with the judgment. The case presents almost wholly issues of fact, with the decision of which, so far as such decision has any evidence to support it, this court has no power to interfere, and, as we have seen, there was evidence tending to show a state of facts which, when established as they are by the verdict of the jury and the judgments below, entitle defendant in error to the relief granted. Affirmed.

HOUSTON & T. C. R. CO. v. GEORGE. (Court of Civil Appeals of Texas. Jan. 16, 1901.)

CARRIERS - PASSENGER - DEGREE OF CAREREQUESTED INSTRUCTIONS-REFUSAL.

1. In an action for injuries, an instruction that it was the duty of a railroad company in the management of its trains to exercise the highest degree of care for the safety of its passengers was proper.

2. A requested instruction, which was composed of matter covered in the charge of the court, was properly refused.

3. Where a question was not raised by pleadings of either party, it was not error to refuse a special charge thereon.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by Henry George against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett and Frank Andrews, for appellant. Henry Faulk and Fred Shelley, for appellee.

KEY, J. Appellee sued appellant to recover damages for injuries alleged to have been sustained by his wife while a passenger on appellant's railroad. Verdict and judgment were rendered for appellee for $400, and the railroad company has appealed.

There being evidence in the record authorizing it, we find, in support of the verdict, the following facts: (1) Appellant was guilty of negligence in the manner charged in appellee's petition; (2) appellee's wife was not guilty of contributory negligence; and, (3) as a result of appellant's negligence, appellee's wife was injured to the extent of $400.

The court instructed the jury that it is the duty of a railroad company, in the management and operation of its trains, to exercise the highest degree of care for the safety of its passengers. This is complained of as being too onerous, and requiring appellant to exercise more care than is imposed by law. A charge requiring a carrier of passengers to use the "utmost care" to provide for the safety of passengers was approved by our supreme court in Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407. In the Welch Case, 86 Tex. 203, 24 S. W. 390, the same court condemned a charge requiring a carrier of passengers to use "all possible care"; but, while the opinion refers to Gallagher v. Bowie, that case is not overruled, the court holding that "all possible care" has a broader and more unlimited meaning than "utmost care," which is defined to mean "all the care and diligence possible in the nature of the case." The expression "highest degree of care" is synonymous with, and no broader, than "the utmost care"; and we believe a jury would understand the two phrases as meaning the same thing. We are aware of the fact that the court of civil appeals at Galveston, in McCarty v. Railway Co., 21 Tex. Civ. App. 575, 54 S. W. 421, has practically overruled Gallagher v. Bowie, supra; but the supreme court has not done so, and, giving to the words "utmost care" the meaning quoted and approved in the Welch Case, we do not think Gallagher v. Bowie ought to be overruled.

In view of the court's charge of contributory negligence, no error was committed in refusing appellant's requested instruction on that subject.

The question referred to in the third assignment was not raised by the pleading of either party, and there was no error in refusing the special charge referred to in the assignment.

Finding no ground for a reversal, the judgment will be affirmed. Affirmed.

LOCKE v. INTERNATIONAL & G. N. R. CO. (Court of Civil Appeals of Texas. Jan. 16, 1901.)

RAILROADS INJURY AT CROSSING -DIRECTION OF VERDICT-ERROR-EXPERT TESTIMONY-ADMISSIBILITY - CAPACITY FOR ENJOYMENT-LOSS-ELEMENT OF DAMAGES. 1. Defendant's section hands left their hand car at a public crossing, so that plaintiff, in order to pass, had to drive on one side of the crossing, and in attempting to do so his team was frightened by a coat hanging on the handles of the car, and ran away, injuring plaintiff. The team was gentle, and used to the railroad, and plaintiff was accustomed to handling horses. Held, that the questions whether defendant was guilty of negligence in obstructing a public crossing, or plaintiff of contributory negligence in attempting to cross, were for the jury.

2. Where section hands set their hand car beside the track so as to block a public crossing, and plaintiff was injured in attempting to

drive over the track at one side of the crossing, the opinion of an experienced driver as to whether one could cross with safety under such circumstances was properly excluded.

3. In an action for injuries, testimony of plaintiff as to his loss of capacity for the enjoyment of the pleasures of life was properly excluded as too vague to furnish any basis for damages.

Appeal from district court, Comal county; H. Teichmueller, Judge.

Action by Otto Locke against the International & Great Northern Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

F. J. Maier, for appellant. S. R. Fisher and J. H. Tallichet, for appellee.

COLLARD, J. This suit was brought by Otto Locke against the appellee, the International & Great Northern Railroad Company, for damages for personal injuries to plaintiff sustained at defendant's railroad crossing on a public road. The court below directed the jury to return a verdict for defendant, the railroad company, upon the ground that the court construed the evidence to mean that the act of defendant complained of was not the proximate cause of the alleged injuries, and that plaintiff, with knowledge of whatever danger existed, assumed the risk, and voluntarily exposed himself to such danger. Verdict was returned for defendant as directed by the court's charge, and judgment rendered accordingly, from which plaintiff has appealed.

The testimony of plaintiff is: That he lives one mile west of New Braunfels, in the city limits. That he is a nurseryman and a farmer. That only one road leads from New Braunfels to his home. It crosses the bridge at Landa's Mill, and then goes southward across defendant's railroad track about one mile from town in a lane. He was driving home from town with a wagon and team of two mules. There were no gates on either side of the railroad, so that he could not drive through the fence, and thus go around the crossing; and there was no way of reaching his home with the wagon and team other than to drive over the crossing on the railroad. He had been to town with a load of trees, and between 3 and 4 o'clock in the afternoon was driving back home. When he reached near the crossing, he saw there was a hand car in the middle of the crossing on the side of the railroad track in the public road, on the side of the track nearest his house. The hand car stood only a few feet from the track, in the traveled road in the lane. He saw the hand car when he entered the lane, and drove on until he got near the crossing, and stopped about 20 feet from the crossing. He saw the section boss and hands working about 300 steps east, and motioned to them with his hand, but they took no notice, but he did not know whether they saw him or not. There was no room in the road to pass the hand car with his wag

on. There were some bars of iron and tools on the ground, and on the right side of the crossing there was room enough to cross over the track,-about 16 feet from the hand car to the fence,--and plaintiff drove across there over the railroad track. It was level ground, and he testified that he could drive over there without harm, or it appeared so to him. The crossing was about 12 feet wide, and to drive around the hand car he had to go off the crossing. His wagon was empty, a good, new farm wagon, and strong team of mules and new harness,-and he says it looked to him as if he could cross over; and the mules, he says, were gentle, and he drove around railroads daily with them, hauling trees to the depot for shipment; and he had handled mules and horses for many years, and understood driving horses and mules. There were some clothes hanging on the handles of the hand car,-coats, or shirts, or slickers; and as he drove over the track around the hand car, and as the mules got near it, the wind blew, and waived the clothes. The mules reared and jumped to the right and forward, and the wheels of the wagon went over the rails, and the jolt threw plaintiff out on the right side of the wagon, and the team went on about 50 yards, the hind wheel having caught the lines and stopped the team. The lines caught his wrist, and he was dragged and injured as alleged. The line was not tied or wrapped around his wrist while he was driving, but got wrapped as he got out. He was dragged until the team stopped. He says: "When I fell out of the wagon, it skinned off my whole face. I was hurt in the back, and one ear was nearly half off." He further relates his injuries, sufferings, and confinement and inability to work as he formerly had,-budding, grafting, and the like. The crossing, he states, was about 12 feet wide, and extended about 10 feet on each side of the railroad track. There was no obstruction in the crossing when he drove to town after dinner. At the time of the accident he was sitting on the spring seat of the wagon, which was about 12 inches above the wagon bed, or more. It was not a spring wagon, but a regular farm wagon, drawn by two mules. He could see the hand car when he got into the lane, but he went on to within 30 or 40 feet of the track, as he states on crossexamination, but not quite to the crossing; but he could see the hand car and the tools lying on the side of it, and there was nothing that kept his mules from seeing it. With the hand car where it was, he could not drive on the plank crossing. There was ample room to drive between the fence and the crossing. Where he attempted to cross the ties were exposed outside the rails, with no dirt between them, but between the rails dirt was filled in between the ties. The ties are six or seven inches thick, and the rails four or five inches, and he testified that he had to drive across the rail at that point

over the obstruction the depth of the rail and the tie combined, and he saw the condition of affairs before he attempted to cross; saw the hand car and the slickers; and his mules could see them, as there was nothing to obstruct the view. When he was in the act of crossing, he says on cross-examination, a sudden wind came up, and flopped the objects on the hand car, and made the mules scare, when they jerked off to the right so violently as to throw him off on the ground. He also testified that he could have stopped there, and come back to town, but that he had no time to do that. The testimony of Max Fricker corroborates plaintiff's testimony as to driving across the track and the accident. A train passed on the road at this point about half an hour before the accident, and a second train passed about the time plaintiff's team stopped and was tied; but the train was not in sight when the injury occurred, and had nothing to do with the injury. The testimony does not show but that the hand car might have been put off the track at other points close by the crossing.

Opinion.

1. The assignment of error to the effect that the testimony warranted the submission of the case to the jury, and that the court erred in peremptorily directing a verdict for defendant, is well taken, and is sustained. The question as to negligence of defendant in placing the hand car across the public road, so as to obstruct the travel, and interfere with plaintiff's right to the use of the dirt road and bridge, and the question as to whether or not he was guilty of contributory negligence, under the circumstances, in attempting to cross the railroad track where there was no bridge, were questions of fact for the jury, and not for the court, to decide. A jury would be authorized to find that defendant had no right to so obstruct the public road with its hand car as to prevent its use by plaintiff with his wagon and team, and that it was guilty of negli gence in so doing. Yet it is true, if plaintiff was also guilty of negligence, under the circumstances, which contributed to his injuries, he could not recover, notwithstanding the company may have committed a wrong in obstructing the road. But this question should have been left to the jury. Judge Gaines, now chief justice of the supreme court, in the case of Railway Co. v. Gasscamp, 69 Tex. 547, 7 S. W. 228, says: "According to the rule in this court, in order that an act shall be negligent per se it must have been done contrary to a statutory duty, or it must appear so to the dictates of common prudence that we can say without hesitation or doubt that no careful person would have committed it." The same opinion, after discussion of the law as decided in other courts, proceeds: "Whether the act be negligent or not depends upon the circumstances attending it, and the question is

for the determination of the jury." The care required of plaintiff was ordinary care and prudence, and this was for the jury to determine from the facts and circumstances under proper charge of the court submitting the question to them. "The test is, what would a man of ordinary prudence have done under the same circumstances?" Railway Co. v. Able, 72 Tex. 155, 156, 9 S. W. 871; Railway Co. v. Bridges (Tex. Civ. App.) 40 S. W. 536; Gonzales v. City of Galveston, 84 Tex. 6, 19 S. W. 284. (The citation in the last above case to Railway Co. v. Clark, 81 Tex. 48, 16 S. W. 631, is an error. should be O'Connor v. Andrews, 81 Tex. 36, 16 S. W. 628.) Appellant has cited a great number of cases decided by the courts of this state and of other states, many of which are pertinent to the question, and sustain his assignment of error; but it is not necessary to review them, as we are content with what has been said, and the authorities we have cited.

It

2. There was no error in excluding the testimony of the opinion of witness Fritz Gerloff that one could with safety make the drive across the railroad track where plaintiff went over, he being an experienced driver, having gentle mules, and a good wagon. The opinion of a witness, even though he may be competent to testify as an expert, as to matters in the ordinary experience of men is not admissible. The jury is deemed fully capable of deciding the question without the aid of opinion witnesses. All the facts were before them, and it was their duty to decide whether or not plaintiff was guilty of contributory negligence, and might have undertaken to drive over the railroad track with safety with his wagon and mules. Shelley v. City of Austin, 74 Tex. 611, 612, 12 S. W. 753.

FT. WORTH & D. C. RY. CO. v. BURTON. (Court of Civil Appeals of Texas. Jan. 12, 1901.)

RAILROADS GRASS-BURNING CASES-PREJUDICIAL ERROR.

Error of counsel, in an action against a railroad for burning grass, in stating to the jury that the deposition of the engineers and inspectors as to their care and inspection of apparatus were verbatim copies of the first deposition ever used in a grass-burning case, and that these engineers are always engineers of 15 or 20 years' experience, and one never appeared to testify for his company in a grass

burning case since the first case except he was an experienced engineer of this sort, was prejudicial.

Appeal from Wise county court; S. G. Tankersley, Judge.

Action by J. M. Burton against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Stanley, Spoonts & Thompson and Robert Harrison, for appellant. A. J. Clendenen, for appellee.

CONNER, C. J. J. M. Burton brought this suit in the county court of Wise county, Tex., against the Ft. Worth & Denver City Railway Company, on January 21, 1900, alleging that he was the owner of certain lands adjacent to the defendant's right of way, and that the defendant, by its negligence, set fire to the grass upon these lands, and destroyed the grass and turf thereon, and in said fire destroyed certain fence posts and damaged wire fence, to his total damage in the sum of $442.45. The defendant answered by general denial, and specially that, if the plaintiff was damaged by fire, as alleged, it was guilty of no negligence, in that its engines were equipped with the best known apparatus for the prevention of the escape of fire, and that they were properly and carefully handled, and that its employés were prudent men, and that, if the tires were set out, they were not caused by any negligence of the defendant. The case was tried on April 19, 1900, and judgment was rendered in favor of plaintiff for $386.70. Motion for new trial was duly filed and overruled, and the case is brought to this court on appeal.

The evidence tends to show that the fire in question was started by a spark or sparks from passing engines, but is conflicting as to whether the fire spread from appellant's right of way or from a point on appellee's land. Appellant's evidence also tended to show that the engines which set out the fire were engines of north-bound passenger trains, and the engineers of these trains testified that the engines were in good condition in every respect, and that no more sparks were escaping than necessarily or ordinarily escaped in the operation of an engine; and that they were competent and skillful engineers, and handled the engines with all the care possible. The boiler inspector for the defendant, whose duty it was to inspect the engines and keep them in repair, testified that he had inspected the engines very shortly before going out on each of the trips in question, and very shortly after coming in therefrom, giving the results of the inspection, and in detail the manner and parts of the engines that were inspected; and that on the occasion of each of these inspections everything about the engines and all the appliances were in good condition. This testimony does not appear to be controverted by any direct evidence offered in behalf of

appellee. On the trial, however, appellee's counsel, in his argument to the jury, made the following statements, as appears from several bills of exception duly reserved thereto at the time, viz.: "That the depositions in the case of the engineers and boiler inspectors with reference to the care they had used in regard to handling the engines and inspection of the apparatus is the same, and almost verbatim copies of the first deposition that was ever used in a grass-burning case. *** These engineers are always engineers of fifteen or twenty years' experience, and one never appeared in court to testify in behalf of his company in a grassburning case, since these cases have been brought, except that he was an experienced engineer of this sort. All these engineers, in suits like these, always say they can remember how they were running at such time; and this has been the case since grass cases were first brought in the courts, and the books are full of such cases." These remarks were duly excepted to at the time, and were entirely unsupported by any evidence in the record, and no correction thereof appears to have been attempted by the court,-if, indeed, a charge to the jury to disregard them would, in any event, remedy such breach of the rules pertaining to a fair trial. In answer to these assignments it is insisted that the evidence of negligence sustains the recovery in appellee's favor, and the verdict is not excessive, and that, therefore, the remarks complained of "could not possibly have influenced the jury improperly." We have been unable to so conclude. The evidence was sharply conflicting on both of these issues. The argument was in the nature of testimony by a witness purporting to have in such matters exceptional knowledge of facts not generally known to be true, and pertinently affecting the weight and credence to be given the testimony of witnesses in behalf of appellant otherwise unimpeached. As was said in Dillingham v. Scales, 78 Tex. 207, 14 S. W. 566: "The remarks of counsel excepted to were not justified or called for by anything legitimately applicable to the case. We cannot say that they did not improperly prejudice the jury. We cannot say that they did not exercise any influence on the jury. If they exercised any, it was an improper one." See, also, Railway Co. v. Woods (Tex. Civ. App.) 25 S. W. 742; Railway Co. v. Scott (Tex. Civ. App.) 26 S. W. 999; Garritty v. Rankin (Tex. Civ. App.) 55 S. W. 368; Railway Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 55 S. W. 331; Elevator Co. v. Hobbs, 5 Tex. Civ. App. 34, 23 S. W. 923.

In our judgment, other assignments need not be discussed, inasmuch as the court's charge and other rulings, so far as the same may become material, may easily be remedied in the light of the criticisms thereof in appellant's brief. The objectionable argument of counsel, however, will require that

the judgment be reversed, and the cause remanded for a new trial; and it is so ordered.

VANCE et al. v. SAN ANTONIO GAS CO.1 (Court of Civil Appeals of Texas. Dec. 5,

1900.)

LANDLORD AND TENANT-INJURY BY A THIRD PERSON-ACTION BY LANDLORD.

The owner of a building may sue a third person for injury to it, though it be in the possession of a lessee, who is also liable to the owner on an obligation to restore the property to him at the end of the term in a reasonably good condition.

Appeal from Bexar county court; Peter Jonas, Judge.

Action by Lillie T. Vance and others against the San Antonio Gas Company. From a judgment for defendant, plaintiff's appeal. Reversed.

W. W. King, for appellants. Geo. R. Hines, for appellee.

JAMES, C. J. A careful consideration of the assignments of error satisfies us that they are not well taken, except the fourth, which complains of the following special charge given at the request of defendant: "If you believe from the evidence that the plaintiffs had leased the entire one-story portion of the building, and that plaintiffs' lessees were at the time of the injury complained of in possession of said entire one-story portion, you are instructed that plaintiffs cannot recover for any injury to such one-story portion." The action was for damages to a certain building by placing electric wires therein and injuring the walls and roof thereof between certain dates. Plaintiffs were the lessors of Frank Bros., of the lower story of the building. This was the testimony of plaintiff Skinner. The charge practically directed a verdict for defendant if this was a fact, so far as damages to the lower story were concerned; and appellee undertakes to justify this charge upon the ground that plaintiffs had leased said lower story to Frank Bros., who were and are still in possession, and therefore plaintiffs were not entitled to recover for damages to this part of the building. This is not the law. Railway Co. v. Ragsdale, 67 Tex. 28, 28 S. W. 515. For injuries to the possession Frank Bros. would properly have recovered, but for injuries to the building plaintiffs had the right to sue. This right was not affected by the fact that the tenants may also have been liable to plaintiffs upon an obligation to restore the premises to plaintiffs at the close of their term in reasonably good condition. There was testimony that Skinner paid for making the repairs, on complaints of Frank Bros.; and, if this were so, it would relieve the case

1 Rehearing denied January 16, 1901.