[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1085, 1087; Dec. Dig. § 280.*] 4. CARRIERS (§ 321*) — INJURIES TO PASSEN

GERS MISLEADING INSTRUCTIONS.

In an action for injuries sustained by falling from a street car step while alighting, because the steps were worn and slanting, and were slippery from mud, and because of the conductor's failure to warn plaintiff of their condition and assist her to alight, the court, after instructing that it was the company's duty to use such means to enable passengers to safely alight as persons of the greatest care and prudence would use, which was the care a very prudent, careful, and competent person would use under similar circumstances, instructed that it was the conductor's duty to be prudent and skillful to see that passengers were not injured in alighting, and he was negligent if he failed to use the greatest degree of care as defined, and that it was the company's duty to exercise the greatest degree of care as defined to construct and maintain proper steps for its cars so as not to injure passengers, and, in the next instruction, left it to the jury whether the conductor's failure to assist, and the slippery condition of the steps, etc., was negligence and also gave a proper charge on contributory negligence. Held, that the charge as a whole fairly and fully presented the issues, and was not misleading, as instructing that it was the conductor's duty to use care in aiding plaintiff to alight. [Ed. Note. For other cases, Dec. Dig. § 321.*]

see Carriers,

RAINEY, C. J. E. A. Danforth, appellee, instituted this suit in the district court of Dallas county to recover of appellant damages for personal injuries to his wife, sustained by her while attempting to alight from one of appellant's cars in the city of Ft. Worth. Appellant answered by general exception, general denial, and plea of contributory negligence. A trial resulted in a verdict and judgment for appellee, and the traction company appeals.

Therefore said act is in violation of section
56, art. 3 of the Constitution. Said section
of the Constitution provides: "The Legis-
lature shall not, except as otherwise provided
in this Constitution, pass any local or special
law authorizing, * * * summoning or
impaneling, grand or petit juries.
The question then is, Is the said act of the
Legislature such a local or special law as is
inhibited by the Constitution of this state?
In the case of Clark v. Finley, 93 Tex. 171,
54 S. W. 343, our Supreme Court, in an opin-
ion rendered by Mr. Gaines, C. J., held the
act of the Legislature of 1897 (Laws 1897, p.
5, c. 5), limiting the compensation of certain
officers, which was applicable to certain coun-
ties, and not to other counties, was not a
special law, and therefore not unconstitution-
al. Said act is very similar to the one here
under consideration. The opinion of Judge
Gaines is able and well considered on the sub-
ject of what is, and what is not, a special
law. Since then the very question involved
in this case came before the Court of Crim-
inal Appeals in the case of Smith v. State,
113 S. W. 289, and it was held, in an able
opinion by Mr. Justice Brooks, that the act of
the thirtieth Legislature (Laws 1907, p. 269,
c. 139), was not a special law, and therefore
not unconstitutional. Mr. Justice Davidson
dissented from the majority of that court.
But as the opinion of a majority of that court
controls in criminal procedure, we are not in-
clined to lay down a different rule in civil
cases. The solution of the question is not
free from difficulty, as there is a sharp con-
flict between the authorities of other juris-
dictions. We, therefore, hold in deference
to the holding in Smith v. State, supra, that
the said act is constitutional. See, also, dis-
senting opinion of Mr. Justice Brooks in
Brown v. State (Tex. Cr. App.) 112 S. W. 80,
for collation of authorities sustaining this
holding.

The pertinent allegations of plaintiff's petition are that on the 20th day of May, 1906, about 9 o'clock a. m., plaintiff's wife, Lula C. Danforth, with her baby in arms, became a passenger on the defendant's interurban car No. 11, at its Tenth street station in Oak Cliff, and paid her fare to the conductor of the car, to be carried to Ft. Worth, to visit her friend, Mrs. Elizabeth Derozier. When said car stopped in response to her signal at The appellant duly presented to the trial the intersection of Main and Weatherford court a motion to quash the jury panel as streets in Ft. Worth for her to alight, and being unconstitutional; the jury having been while she, with her 17 months old baby in drawn under the Act 30th Leg. 1907, p. 269, her arms, and in the exercise of the greatest c. 139. The contention, in effect, is that said care and prudence to safely alight, was stepact is a special law, in that it provides for a ping from the rear platform to the step, from certain jury system for all counties having a which she would alight to the street, her feet city containing a population of 20,000, or slipped from the step of the car, and threw more, inhabitants as shown by the United her with great violence and force down upon States census of the year 1900, and thereby the street and backward against said step. excludes from the operation of such system That her feet slipped from the step of the all counties in the state that may hereafter car because of the step being worn, making have cities of increased population of 20,000. the board thinner and slanting and slippery,

follows: "It is the duty of the railway company to use such means and foresight, in providing for the safety of passengers alighting from its cars, as persons of the greatest care and prudence would use under similar circumstances. The degree of care required is such as very prudent, careful, competent persons would exercise under similar circumstances, and a failure to exercise such care constitutes negligence." The appellant's contention is, in effect, that it places a greater burden on defendant than justified by law, in requiring the conductor to be skillful and cautious in seeing that passengers are not injured while alighting from the car, and that it was calculated to mislead the jury into the conclusion that it was the duty of the conductor to have been skillful and cautious to aid plaintiff to alight from the car, when such issue was one for the jury's determination. In the paragraph of the charge complained of the court was merely defining the duty of carriers of passengers imposed by law. In telling the jury that it was the duty of the conductor to be prudent, skillful and cautions to see that his passengers are not injured while alighting from his car does not impose a greater burden upon the appellant than the law requires. The degree of care prescribed for the government of carriers of passengers is the highest known to the law, and in instructing the jury as to this duty it is not subject to the criticism that it is misleading to the jury.

and because of slippery mud having accumulated and being on said step, and because said step was defectively constructed, in that it was too steep, and without sufficient projection, and was all the more dangerous, being thus defectively constructed, and the more liable to cause a passenger to slip and fall in stepping from the platform to this worn, muddy, and slippery step. That at the time plaintiff's wife, with her baby in her arms, was leaving the car, and while she was attempting to step from its rear platform to the street, the defendant's conductor, who knew of the condition of said step, and which was not known to plaintiff's wife, was standing idle and unoccupied on the rear platform of the car, leaning against the platform rail, and said plaintiff's wife, with her infant baby in her arms, attempting to get off the car, and said conductor well knowing that plaintiff's wife needed assistance and warning on account of said condition of said step of the car, yet he remained in his position aforesaid on the rear platform of the car, and failed and refused to assist her to alight therefrom, or even to warn her of the dangerous condition of said step, but remained idle and silent, and made no effort to assist her, or to inform her of the dangerous and perilous po- | sition she would be subjected to in using said step in alighting from the car. That at the time of said accident plaintiff's wife was three months pregnant with child, and the serious and painful injuries she received from said fall caused her to suffer a miscarriage on May 27, 1907, one week after the accident. After the accident she was confined thereby to her bed for about three weeks, and said serious and permanent injuries and miscarriage caused her excruciating mental and physical suffering, and will continue so to do. The evidence sustains the allegations of the petition, and plaintiff's wife was not guiltying therefrom, but to maintain and keep all of contributory negligence.

The appellant's second assignment of error is: "The court erred in the following paragraph of his charge to the jury: 'It is the duty of an interurban car conductor to be prudent and skillful and cautious to see that his passengers are not injured while alighting from his car, and in case the passenger on the car is injured, while alighting, by the negligence of the conductor, if any that is, his failure to exercise the greatest degree of care as defined in the above paragraph, for the safety of the passenger-such failure, if any, constitutes negligence on the part of the railway company. It is the duty of the railway company, by which is meant the defendant company herein, to exercise the greatest degree of care, as defined above in this charge, to select for its use cars with steps so constructed as not to expose to danger passengers alighting therefrom, but to maintain and keep all steps in such condition while using the car.'" This charge is part of the fifth paragraph of the court's charge. The

Another contention, in effect, is that said paragraph is erroneous wherein it tells the jury that "it is the duty of a railway company, by which is meant the defendant company herein, to exercise the greatest degree of care, as defined above in this charge, to select for its use cars with steps so constructed as not to expose to danger persons alight

steps in such condition while using the car," in that it was upon the weight of the evi dence, etc. The greatest degree of care, as above defined by the court, was "such as very prudent, careful, competent persons would exercise under similar circumstances." This we understand to be the care imposed by law on carriers of passengers. The court in the succeeding paragraph (No. 6) of its charge, in applying the law to the facts, left it to the jury to determine whether or not it was negligence for the conductor to fail to assist, as to the step of the car being properly constructed, and as to being slippery from mud, etc. The court also charged on contributory negligence of plaintiff; and, when the charge is considered as a whole, we think the issues raised by the evidence were fairly and fully presented to the jury, and appellant's objec tions thereto are not well taken. Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 522; Allen v. Railway Co., 79 Tex. 631, 15 S. W. 498; Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308.

JESSE FRENCH PIANO & ORGAN CO. v. 7. SALES (§ 130*)—RESCISSION TO BUYER-MIS

1. SALES (§ 130*)-SUIT TO RESCIND-PLEAD-ly made, where the matter averred showed at ING SUFFICIENCY. least constructive fraud.

upon the action of the court in overruling the objection to the question; and the proposition asserted under it is: "It is not permissible for counsel to ask his own witness on direct examination, and especially the plaintiff, leading questions." It being essential for a party who seeks to rescind a contract of sale upon the ground of false representations to prove that he relied upon such representations and was induced thereby to enter into the contract, and as proof on the issue can only be directly made by having

The grounds for rescission of the contract are thus alleged by plaintiffs: "Before the purchase by plaintiffs from defendant, defendant, through its agents, represented and warranted to plaintiffs that said piano, properly used and handled, would give them no trouble, and would require no repairs for the period of five years from the date of sale, and guaranteed the soundness of the piano for the period of five years; that plaintiffs, believing such representations to be true and correct, relied upon the same, and the same constituted the consideration | him testify whether he relied upon such repfor the purchase by plaintiffs from the defendant of said piano; that said representations were untrue and incorrect, in that, although carefully used and handled, said piano began to get out of order, and failed to operate, though properly connected with a sufficient electric current, immediately after the purchase and sale, and has continued from time to time ever since said purchase to fail to operate; and that the exact nature of the defects in said piano are unknown to plaintiffs. Wherefore * * the consideration for the purchase of said piano has wholly failed, and that plaintiffs are entitled to have the money paid refunded to them and the notes canceled." They also alleged that they tendered the piano to defendant before filing suit. The defendant answered by a general demurrer and general denial. The trial of the case resulted in a verdict and judgment in favor of the plaintiffs for the money sued for, and for a cancellation of the purchase-money notes.

resentations or not, we are unable to perceive how it would have been practicable to have elicited the witness' testimony upon such issue by framing a question differently from the one objected to. Such question did not suggest to the witness that an affirmative, rather than a negative, answer was desired, though the witness may have known, as any intelligent witness would, that a favorable disposition of his case largely depended upon which kind of answer he gave to the question. If a knowledge of the effect of the answer of a witness who is a party to an action to a question would render a question objectionable, scarcely any question as to an important fact could be asked him at all. It is only essential that the question be so framed as not to lead to an answer favorable, rather than unfavorable, to such a witness. The question complained of is not obnoxious to this principle; and not within the spirit and meaning of the term, "leading."

The first assignment of error, which com- The plaintiffs' counsel asked the witness plains of the court's overruling defendant's Carr this question: "I will ask you whether general demurrer to plaintiff's petition, is or not it is customary for agents in selling not well taken. Rule 17 of district and coun- pianos to warrant them; and, if so, for how ty court (67 S. W. xxi); Insurance Co. v. long?" It was objected to upon the grounds Woodward, 18 Tex. Civ. App. 496, 45 S. W. that plaintiffs had not alleged the existence 185; Whaley v. Thomason, 41 Tex. Civ. App. of such a custom, and that they declared up405, 93 S. W. 212; International Harvester on an express warranty, and not one implied Co. v. Campbell, 43 Tex. Civ. App. 421, 96 by custom. The objections were overruled, S. W. 95; Insurance Co. v. Hargus (Tex. and the witness answered: "It is customCiv. App.) 99 S. W. 581; Telegraph Co. v. ary to warrant ordinary pianos for five Levy (Tex. Civ. App.) 102 S. W. 135. After years." This ruling of the court is challengF. A. Chapa, one of the members of plain- ed by the third assignment of error. Untiffs' firm, had testified that at the time he doubtedly, the objections should have been negotiated the purchase of the piano with sustained, and such testimony excluded. defendant's agents one of them represented Norwood v. Insurance Co., 13 Tex. Civ. App. to him that the piano was a good one, and 475, 35 S. W. 717; De Witt v. Berry, 134 U. that defendant company, as well as them- S. 306, 10 Sup. Ct. 536, 33 L. Ed. 896. The selves, would guarantee the instrument for issue as to whether there was such a warfive years, plaintiffs' counsel asked him this ranty or guaranty as alleged was sharply question, "Mr. Chapa, state whether or not drawn by the testimony, and plaintiff should you relied upon the representations made to not have been permitted to fortify his side you by these parties [meaning defendant's of it by proving a custom, which, even if cusagents who effected the sale] in regard to tom could be taken as entering into and addthis piano," which was objected to upon the ing another feature to an express contract, ground that it was leading, and, the objec- defendant may not have known anything of. tion being overruled, the witness answered: Nor could such a custom be shown as evi"I most certainly did. I simply relied on dence of making the representations by deMr. Buford's [defendant's agent] statement fendant's agents as to the quality of the inthat the piano was a good one, and that he strument. It cannot be said that the testiguaranteed it for five years. mony did not influence the jury in the ver

fraudulent, the matters averred, if true, constitute at least what is deemed by the law

In its charge the court instructed the jury, in substance, that if defendant, through its agents, represented and warranted the pi-a constructive fraud. Therefore an allegaano, if properly used and handled, would re- tion that the representations were frauduquire no repairs for five years, and guaran- lently made, it being merely a conclusion deteed its capacity and efficiency for that ducible from the facts averred, was unneceslength of time, and that if it failed to op- sary. Ross Armstrong Co. v. Shaw (Tex. erate as claimed by plaintiffs, and that such | Civ. App.) 113 S. W. 558. Though the reprepresentations and warranties, if made by resentations may have been false and frauddefendant, were untrue, and that defendant's ulent, yet if they were not believed to be agents were authorized by defendant to true, nor acted upon by the plaintiffs as an make the warranties alleged-then to find inducement in making the purchase, they were for plaintiffs for the sum of $220, and for not entitled to a rescission of the contract. the cancellation of the notes described in The charge complained of would authorize their petition. the relief prayed for, regardless of whether The propositions under the assignment the plaintiffs were induced by the alleged which complains of this part of the charge fraudulent representations to purchase the are as follows: piano or not. In this we think that the

"First. If plaintiffs were entitled to dam-charge is obnoxious to the third proposition ages, the proper measure of damages is the difference between the value of that which plaintiffs Garza & Co. parted with (that is, the $220 and the 14 notes described in plaintiffs' petition), and the value of that which they received (that is, the automatic electric piano), under the agreement and trade.

"Second. In the absence of fraud or of an express contract to take back an article sold with a guaranty, the vendee cannot return the article and recover back all of the purchase money.

"Third. In order to find for the plaintiffs, the jury should have been instructed that they must find that the said representations were fraudulently made, that they were untrue, and that plaintiffs believed them and relied thereon, and were induced thereby to make the purchase, and that such falsity contributed to plaintiffs' damages.

"Fourth. The jury should have been instructed that, in order to find for plaintiffs, they must find that the piano was properly used and handled."

under the assignment. The portion of the charge referred to is also obnoxious to the fourth proposition. The representations and guaranty as to the quality of the instrument were, according to plaintiffs' own allegations, conditioned upon its being properly used and handled. The charge authorized a verdict regardless of whether plaintiffs properly used and handled the piano or not.

While it comes mighty close to it, we don't think the case made by the pleadings and evidence was such as required the court to peremptorily instruct a verdict for defendant, as was requested by its counsel. Nor do we think the court erred in refusing defendant's request to instruct the jury to find for it, unless the piano was utterly worthless and a total loss to plaintiffs. Upon their tendering the piano to defendant, they were entitled to a rescission, if they proved that the alleged representations were made, that they were false and fraudulent, that they relied upon and were induced by such representations to make the purchase, regardless of whether In regard to the first of the propositions, the instrument was entirely worthless or not, it will be noted that this is not an action for provided, however, defendant authorized its damages, but a straight-out suit for a rescis- agents to make them or it was within the apsion of a contract of sale, and, as incident to parent scope of their authority. If this suit its rescission, to recover the purchase money were for damages upon a breach of warranpaid and to cancel the notes given for the ty, defendant's seventh assignment of error, instrument upon the grounds that the repre- under which it is contended that the court sentations made by defendant's agents as to erred in submitting the case to the jury bethe quality and efficiency of the piano were cause it conclusively appears from the eviuntrue, and that the piano was not such as dence that, if a warranty or guaranty was warranted. Only a general denial was plead- agreed upon and furnished, it was the wared, nothing being alleged to show that it was ranty of Buford Bros., and not of defendused by plaintiffs, or, if used by them, its use ant, would be well taken; for the plaintiffs' was of any value. If, under the pleadings, own testimony shows that they would not defendant was entitled, under the evidence, accept any warranty or guaranty from the to an abatement of any part of the purchase defendant, but wanted and took only the permoney paid, it should have requested a spe- sonal warranty or guaranty of Buford Bros. cial charge submitting such issue to the The suit, however, is not for damages upon jury; and, in the absence of such request, it a warranty or guaranty, but for a rescission cannot now be heard on that ground to com- of the contract. It may in view of another plain of the court's charge. The second prop- trial be proper to say here that the failure osition, while correct as an abstract princi- of a warranty or guaranty made by the Buple of law, cannot be sustained; for, al- ford Bros. personally, and not in their cathough it is not directly alleged that the rep-pacity as agents of defendant, would afford