jections to the assignments of error were untenable. The assignments are not as clear as they might be, but we then thought, and now think, they are sufficient to direct our attention to the errors complained of, and under article 1612, Revised Statutes, 1911, this was sufficient. [6] Defendant in error further contends that, this court having rendered judgment against him as a surety for the canal company, the judgment should have been so framed as to first subject the property of the canal company to its satisfaction before proceeding against him for its collection. The answer to this is that no such relief was sought by his pleadings in the lower court, nor by him in his brief in this court. Upon the merits of the case we will not add to what was said in our main opinion, other than that a further investigation has satisfied us of the correctness of the conclusions there stated; and in further support of the opinion cite the recent case of People's State Bank v. Fleming-Morton Co., 160 S. W. 648. The motion is overruled. LIABILITY OF [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. 349.] 2. BILLS AND NOTES 537 ACCOMMODATION SURETY. Where, in an action on a note in evidence. defendant admitted its execution, but alleged that he was an accommodation surety, and that the plaintiff had a mortgage on personalty of the maker to secure the note's payment, neither party seeking to have the mortgage foreclosed, but both asserting it was beyond their reach, no affirmative relief being asked by the defend ant by way of being subrogated to any of plaintiff's rights, peremptory instruction to return a verdict for plaintiff was proper. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. 537.1 3. APPEAL AND ERROR 499-BILL OF EXCEPTIONS-SUBMISSION ON SPECIAL ISSUES TIME OF REQUEST. A bill of exceptions to the refusal of the trial court to submit the case on special issues should show at what point in the trial the request was made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. 499.] Kercheville & Dewald, of Devine, for appellant. Magus Smith, of Pearsall, for appellee. CARL, J. Appellee, Geo. K. Mixon, sued one G. Longorio and T. H. Banks on a joint and several promissory note for $243.90 principal, and for 10 per cent. interest per annum from September 1, 1913, and for 10 per cent. attorney's fees. The suit against Longorio was dismissed upon allegations that he was notoriously insolvent, and his residence unknown, he being a fugitive from justice, and judgment was prayed for as against T. H. Banks alone. Banks admitted the execution of the note, but alleged that he was an accommodation surety, and that Mixon had a mortgage on certain personal property of Longorio to secure the payment of the note, but had negligently failed to reduce the same to possession, and had permitted said security to be lost and placed "where they cannot now be reduced to possession of the plaintiff, nor to the possession of said defendant T. H. Banks in case of his subrogation to the debt of his principal." The defendant Banks, in his pleadings, offered to pay the debt less the value of the mortgaged property. No affirmative relief is asked by Banks. The judgment was for the full amount of the note, interest, and attorney's fees against Banks, and he has appealed. [1-3] The first assignment of error complains of the action of the court in refusing to submit the case on special issues. There was no error in this respect, because the court would have been justified in peremptorily instructing the jury to return a verdict for the plaintiff. Neither party sought to have the mortgage foreclosed, but, on the contrary, both assert that it was beyond their reach. No affirmative relief is asked by Banks in the way of being subrogated to any of Mixon's rights, and the note was in evidence, the execution of which was admitted by him. And, by examining the transcript and bill of exceptions, it does not appear that the request to submit the case on special issues was made before the main charge was given to the jury. G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329. In the case cited Chief Justice Gaines says: at what point in the progress of the trial the "A proper bill of exceptions would have shown request was made." There is no necessity of commenting on the other assignments; for we have examined same, and believe them to be untenable. We Appeal from Frio County Court; S. T. have also examined the statement of facts, Dowe, Judge. Action by George K. Mixon against G. Longorio and T. H. Banks. Judgment for plaintiff, against Banks, and the latter appeals. Affirmed. and find nothing therein, nor in the pleadings, which would make it necessary to even submit this cause to a jury. Therefore all assignments are overruled, and the judgment is in all things affirmed. 7. NEGLIGENCE 101-INJURIES TO SERVANT -COMPARATIVE NEGLIGENCE. In order to diminish recovery by the servant on account of contributory negligence, the employer need not show that the servant knew of the danger because of which he was injured, but it is sufficient that at the time he did not 1. MASTER AND SERVANT 278, 281-INJU- Evidence in an employé's action for injuries held sufficient to support findings that defendant negligently failed to provide a reasonably safe place for plaintiff to work, and that plaintiff was not guilty of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977, 987-996; Dec. Dig. 278, 281.] [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. 101.] 8. APPEAL AND ERROR 1140 MEDICAL CARE-AMOUNT-REMISSION. Where a verdict allows an excessive amount for medical attendance, the error will be cured by plaintiff's filing a remittitur so as to conform the amount to that supported by the evidence. [Ed. Note. For other cases, see Appeal and Er 2. MASTER AND SERVANT 252-INJURIES TO SERVANTS-NOTICE OF CLAIM-WAIVER. ror, Cent.Dig. §§ 4462-4476; Dec.Dig. 1140.] Where plaintiff, in obtaining employment, 9. TRIAL 260-REQUESTED INSTRUCTIONSsigned an agreement that failure to give notice NECESSITY. to the employer within 30 days after injury should bar his action for damages thereon, and after he was injured the employer's agent took a written statement of the claim of the plaintiff, taking the statement waived the requirement of written notice. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. 252.] 3. MASTER AND SERVANT 252-CONTRACT OF EMPLOYMENT-LIMITATION OF LIABILITY. Under Rev. St. 1911, art. 5714, providing that a stipulation in a contract requiring notice as a condition precedent to suit for damages for personal injuries must be reasonable, and making any stipulation for notice in less than 90 days void, and making void every stipulation between a railway and its employé for such notice in cases of injuries caused by negligence, a contract of employment of the plaintiff as a switchman for defendant requiring notice to be given in 30 days will not defeat plaintiff's action, whether notice is given or not. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. 252.] 4. MASTER AND SERVANT 203 NEGLIGENCE 101-INJURIES TO SERVANT-ASSUMED RISK-CONTRIBUTORY NEGLIGENCEEFFECT. Where a servant assumes a risk, it will defeat recovery for injuries caused thereby in any sum, but his contributory negligence on his part merely diminishes his recovery. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. 203; Negligence, Cent. Dig. §§ 85, 163, 161, 167; Dec. Dig. 101.] 5. MASTER AND SERVANT 291-INJURIES TO SERVANT INSTRUCTIONS-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE. In a switchman's action for injuries, an instruction that if, in going in front of moving cars, plaintiff knew the danger, and that it was not required of him in the performance of his duty, and if he was negligent, he was guilty of contributory negligence, is erroneous for attempting to combine contributory negligence and assumption of risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. 291.] 6. MASTER AND SERVANT 224-INJURIES TO SERVANTS-ASSUMPTION OF RISK. Where the servant is injured while at work, but in doing an unnecessary act of his own volition, the master is not liable; it being an assumption of the risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 654; Dec. Dig. 224.] struction substantially covered by the charge of It is not error to refuse a requested in the court. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 10. APPEAL AND ERROR 730-MATTERS REVIEWABLE-RECORD. Where an assignment of error fails to give the substance of the requested charge on the refusal of which it is based, and the statement thereunder does not set it out nor refer to the page of the record where it may be found, the court will regard it as waived. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. 730.] 11. TRIAL 250-INSTRUCTIONS-CONFORM ITY TO PLEADINGS AND EVIDENCE. Refusal to instruct upon an issue not raised by the pleadings or evidence is proper. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 581-586; Dec. Dig. 250.] 12. MASTER AND SERVANT 289-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. Where a switchman seeks recovery for percars to make a coupling, the question whether sonal injuries received when he went between the coupler could have been operated from the side of the cars without going between them so as to make the plaintiff guilty of contributory negligence was for the jury. Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; [Ed. Note.-For other cases, see Master and Dec. Dig. 289.] 13. APPEAL AND ERROR ERROR-INSTRUCTIONS. 1068-HARMLESS The refusal of a requested instruction that, if plaintiff switchman was guilty of negligence in going in front of a car to make a coupling, and defendant railway company was not guilty of negligence, the jury should find for defendant, presents only harmless error, where the verdict shows that the jury found the defendant guilty of negligence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. 1068.] 14. APPEAL AND ERROR 1051-HARMLESS ERROR-ADMISSION OF EVIDENCE. Where plaintiff, an experienced switchman, injured in coupling cars, was permitted to testify that he "had to" get down between the cars to make a coupling, the admission of such testimony, if error, was harmless; it already having been shown that the coupler would not open the knuckle, so that the opinion evidence (inches deep near the center of said yards and given was immaterial. plaintiff's aforesaid place of work, between the [Ed. Note.-For other cases, see Appeal and end of two ties and just on the outside and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. right against the rail of one of the said many 1051.] tracks or switches over which it was plaintiff's 274-PERSONAL defendants' trains, and thereafter negligently duty, as aforesaid, to assist in the operation of and carelessly allowed and permitted said hole the same during the entire day of April 2, 1913." to remain and refused to fill, close, or remove 15. MASTER AND SERVANT INJURIES-CONTRIBUTORY NEGLIGENCE-EVIDENCE-CUSTOM. In the absence of a specific rule forbidding employés to make couplings by going between the cars, evidence of the custom of employés in that regard is admissible to rebut contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. 274.] 16. WITNESSES 396-CONFLICTING STATEMENTS-EXPLANATION. Where the agent of defendant railway company by false and fraudulent representations procured a statement from plaintiff, injured while employed by defendant, that he had entirely recovered from all injuries received, and the statement is introduced on trial to contradict the plaintiff as to his injuries, evidence of plaintiff as to the circumstances surrounding the giving of the statement and as to its falsity is admissible. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1261-1264; Dec. Dig. 396.] 17. WITNESSES 414-CORROBORATION-EVIDENCE-ADMISSIBILITY. A report of defendant railway company's investigator on the condition of a car coupling, in operating which plaintiff was injured, is not admissible to corroborate the testimony of the investigator, unless made before motive for concealing defects arose. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. 414.] 18. EVIDENCE 359 - EXPERTS PHOTO GRAPH. Evidence of a physician attending plaintiff switchman injured while in the employ of the defendant, as explained by means of X-ray photographs of the plaintiff's anatomy after injury, is admissible, if preliminary evidence has established the correctness of the photographs. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. 359.] Appeal from District Court, Potter County; J. N. Browning, Judge. Action by Frank Winkler against the Pecos & Northern Texas Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded. He further alleged, while performing his duty, he stepped into the hole above set out and fell in front of a train of cars being switched, which ran over and injured him; that the train of cars was being switched on track No. 4, to be coupled onto other cars standing on said track, and that he rode on the north front car of the train, which was being switched, for the purpose of making the coupling; that the knuckle of the front car was defective, in that, when the pin was raised, the knuckle would not open as the car approached the stationary cars, the knuckle remained closed, and in order to make the coupling it was necessary that the knuckle on said car should be opened by hand, and it was his duty, under such circumstances, to descend from the moving car and overtake the knuckle and open the same before it came in contact with the standing cars, and as the moving cars came near the hole, and after appellee had endeavored to open the knuckle with the lever of the coupling, and could not do so, he descended from the car and stepped ahead of same and between the rails to open the knuckle, and as he turned around the end of the car for the purpose of stepping between the rails ahead of the moving car, his foot slipped and slid into said hole, which caused him to fall in front of the car and between the rails; and that he was thereby injured, etc. The defendants denied specifically the acts of negligence set out, and that the accident was not due to any negligence upon the part of the defendants in the particulars alleged, but was due to the negligence of appellee in going in front of the car, when there was no necessity or duty requiring him to do so, pleading contributory negligence, assumed risk, etc. Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Ama[1] The trial court submitted to the jury rillo, for appellants. J. H. Synnott, of Dal- whether the appellants were negligent in diglas, and R. E. Underwood, of Amarillo, forging a hole at the place it did and whether it appellee. HUFF, C. J. Winkler sued appellants, railway companies, for damages occasioned by injuries received by him, alleged to have been inflicted on him while in the employment of appellants, on the 2d day of April, 1913, in and about the switchyards of appellants in Amarillo. The jury returned a verdict in his favor for $6,000. The negligence alleged is as follows: "That about the 1st day of April, 1913, the defendants, their agents and servants, negligently dug, bored, and excavated a large and deep hole about 12 inches in diameter and about 16 was negligent in leaving it there unfilled and level, and whether such negligence was the proximate cause of appellee's injury. The evidence will authorize the inference that some engine at some time previous to appellee's fall stopped at the point where the hole was, and that it was made by water from the overflow pipe attached to the engine, and that the hole was something near the size described in the petition; that it had been made previous to the day on which appellee was injured, and left in that condition, rendering it dangerous and unsafe for employés required to work in the yards switching cars der our statutes, appellants could defeat the claim for damages occasioned by personal injuries by stipulating that notice thereof must be given within 30 days after such injury. Article 5714, R. C. S.; Railway Co. v. Hudgins (Civ. App.) 127 S. W. 1184. For the reasons above expressed, we do not believe the trial court was in error in refusing appellee's special requested peremptory instructions, and the assignments Nos. 1, 2, 3, and 4, together with the propositions thereunder, will be overruled. and trains. It will authorize the inference, 314, 108 S. W. 745. We do not believe, unalso that the employé whose duty it was to keep clear the track at that point either saw the hole the morning previous to the fall, and negligently failed to fill it, as was his duty, or that he negligently failed to discover it, which he could have done by proper care, and will authorize the inference that appellee stepped in this hole, and that it caused him to fall in front of the cars, and that some three or four passed over him, dragging him and injuring him in several portions of his body, as alleged, and that this was negligence on the part of appellants which proximately caused the injury to appellee. We therefore would not, under the facts of this case, be warranted in finding that there was no evidence, as a matter of law, warranting the jury to find that appellants negligently failed to provide a reasonably safe place in which for appellee to work. M., K. & T. Ry. Co. v. Wise (Civ. App.) 106 S. W. 465. This case was affirmed by the Supreme Court, 101 Tex. 459, 109 S. W. 112: Railway Co. v. Manns, 37 Tex. Civ. App. 356, 84 S. W. 254; Railway Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 376; Railway Co. v. Redeker, 67 Tex. 181, 2 S. W. 513. Without stating our conclusion of the facts, we do not feel authorized to say there were no facts which would authorize an inference by the jury that appellee was not guilty of contributory negligence. Railway Co. v. Adams, 94 Tex. 100, 58 S. W. 831; Railway Co. v. Smith (Civ. App.) 101 S. W. 453. [2, 3] The appellee made a written appli The fifth assignment of error will be overruled. Taking the second and sixth paragraphs of the court's charge together, we think the jury was sufficiently instructed as to the facts required to be proven by appellee by a preponderance of the evidence, and that the burden was on him to so establish such facts. The sixth assignment complains that the fourth paragraph of the court's The court instructed charge is erroneous. that the duty was on appellants to furnish appellee a reasonably safe place to occupy while in the discharge of his duties as switchman and use ordinary care to keep its railway tracks and sufficient space of ground adjacent to it clear of holes and excavations, which would likely interfere with the switchman in the discharge of his duty; that there was no duty on the switchman to inspect the premises where he was expected to work. The court did not instruct the jury that appellee "was not required to use any care to discover the presence of any hole," etc., as asserted by appellants in their proposition. The trial court did instruct that he was required to use ordinary care and prudence to avoid injury to himself. The ob cation for employment with the appellants, in which it is stated, if he should be injured while in the employment, that he would in 30 days after such injury give notice in writ-jection taken to the charge is not sound. ing of any claim for damages to the claim agent or general claim agent of appellants, and that a failure to give such written notice of such claim within 30 days should be a bar to the institution of any suit on account of such injury. This clause was set up as a bar to appellee's cause of action by the appellants. The facts in this case show that in less than a week after the injury appellant's claim agent called on appellee for a statement, which he gave to the agent. This statement was reduced to writing, and appellee signed it, and was referred to by the evidence in this case. The trial court, at the request of the appellants, submitted to the jury whether the above provision contained in appellee's application was reasonable, and whether the notice stipulated for had been waived by appellants. The jury evidently found it was unreasonable or had been waived. We believe the fact that appellants obtained the statement of the claim of appellee in writing within a week after the injury would authorize the finding that the appellants had waived the giving of notice stipulated for. The charge of the court is substantially the language used by the Supreme Court in several cases, except the jury were not charged thereby that "he does not assume the risk arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risk, or in the ordinary discharge of his own duty must necessarily have acquired knowledge." The appellants do not except to the charge because of this omission by the court. However, in the eighth paragraph of the court's charge this omission, if there was any error in omitting it, was covered, and no injury could have resulted to appellants thereby. Bonnell v. Railway Co., 89 Tex. 72, 33 S. W. 334; Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; American Machinery Co. v. Haley (Civ. App.) 165 S. W. 83. The seventh, eighth, and ninth assignments assail the sixth paragraph of the court's charge, on the ground that it assumes appellee exercised ordinary care in trying to make the coupling and ignores contributory negligence, or that it assumes the hole caused appellee to fall. We will not set out the than to say we do not think the charge assumes any of the facts, but leaves to the jury the duty of finding the facts. We do not regard the charge as being on the weight of the evidence. [4-7] The appellant's tenth and eleventh assignments assail the ninth paragraph of the court's charge, which is as follows: § 1166; Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530. Labatt says: "In these, as in most other cases where the intentional adoption of a certain line of action is proved, the facts will also be suggestive of contributory negligence. But it is both unnecessary and disadvantageous to rely upon the conception which raises a disputable question, if a decisive element is supplied by the clear evidence of a deliberate choice on the servant's part, or the exercise of his own judgment in creating the conditions which occasioned the accident." "(9) By contributory negligence, as used in this charge, is meant such act or omission on the part of plaintiff as an ordinarily prudent person would not do, under the same circumstances which act or omission, concurring with Judge Gaines, in the Mathis Case, supra, a negligent act of omission, if any, of the de- quotes the above section from Labatt with fendants, or where the defendants were free from negligence on their part, became the prox- approval. Now, in this case the court tells imate cause of the injury complained of. Now, the jury, if they find in going in front of the therefore, if you believe from the testimony before you that plaintiff, as defendants' switchman, knew that the duties he assumed were hazardous and dangerous, and that he knew of the condition of the tracks and yards on which he was working, and knew of the probable presence of the holes or excavations near such tracks, caused by the handling of engines and cars upon and over the same, or that he should have known or discovered the same in the exercise of ordinary care in the course of his employment, or if you believe from the evidence that he knew, or should have known, that it was dangerous, and not necessary or required of him, to go between the rails in front of moving cars in the performance of his duties, and you believe that he neglected and failed to ex-master ercise ordinary care for his own personal safety in so doing, and you believe that, under all the circumstances, such was negligence on his part and contributed to his injuries, then, if the defendants were not guilty of negligence on their part you will find for the defendants; but, if you find from the evidence that the defendants were guilty of negligence, as alleged by plaintiff, and that the same was the direct and proximate cause of plaintiff's injury, and that he suffered damages as the proximate result thereof, then the plaintiff would nevertheless be entitled to recover for such damages, if any, as were the direct and proximate result of the negligence, if any, of the defendants, and the jury in such case will diminish and deduct his damages in proportion to the negligence attributable to the plaintiff which contributed directly to such injuries and damages." moving cars appellee knew the danger, and that it was not necessary or required of him in the performance of his duty, if he was negligent, he would be guilty of contributory negligence. If he knew the danger, and it was not necessary or required of him to go in front of the moving cars, it would be a deliberate choice or the exercise of his own judgment which occasioned the accident. If the jury so found the facts, they must necessarily have found he deliberately assumed the risk, knowing the danger. He selected an unnecessary way and one not required. The master could not, under the law, be made responsible for the servant's own voluntary act and choice. Of course, if there is an issue raised by the evidence whether going in front of the car was then necessary or required in order to perform his duty, the court should submit the question whether an ordinarily prudent man would have done The appellee so under the circumstances. claimed on account of the defect in the coupler he was required to go in front of the car. The appellants claim it was unnecessary, for the reason that the coupler would open the knuckle from the side of the car, and that the coupler was not defective. If the appellee did not then know the danger, even In this state the distinction between as- though the coupler was defective, it may be sumed risk and contributory negligence is that the question of contributory negligence recognized. If the servant assumes the risk, should have been submitted; but if, where it will defeat a recovery for any sum; while, he both knew the danger and that it was. under our statute, contributory negligence not necessary, he, by his own volition, asconcurring with the negligence of the master sumed the risk, the master would not be liproximately producing injury will diminish able for anything. The defect in the track recovery. Railway Co. v. Hodnett (Sup.) may have been known to appellee; yet he 163 S. W. 13. If the appellee knew of the may not have known that such defect was hole in the track and the danger therefrom dangerous to him, or necessarily so. The in performing the work, he was guilty of as- Lempe Case, supra. The facts may present sumed risk, which would defeat a recovery the issue if the defendant knew, or should for any amount, and he could not recover necessarily have known, of the defect, but diminished damages, as charged by the court. did not then know of the danger in performRailway Co. v. Bradford, 66 Tex. 732, 2 S. W. ance of his duty, which, under the circum595, 59 Am. Rep. 639; Railway Co. v. She- stances, was then necessary to be performed, han (Sup.) 18 S. W. 151; Railway Co. v. by going in front of the moving train, whethLempe, 59 Tex. 19. Again, if he knew of er he then under the circumstances acted as the danger "and that it was not necessary or an ordinarily prudent person would have required of him to go between the rails in done; but, if he knew the defect and knew front of moving cars in the performance the danger and that it was unnecessary to of his duty," this, too, would be assumed go in front of the car, he could not recover risk on his part, which would defeat a re- anything on the ground that he assumed the covery. 3 Labatt, Master & Servant (2d Ed.) risk. Railway Co. v. Wilson, 189 Ill. 89, 59 |