charges including services from the first of the year, amounted to $115; that appellee's nervous condition continued for quite a while, but that she grew better.

Concerning the injury, appellee testified: "My uncle was just ahead of me and Dr. Chase just behind, holding my arm, and as we started down, I believe we had reached the bottom step and the brakeman held up his hand, motioned for Dr. Chase to let me go, and Dr. Chase let go, and I reached for his hand, and I don't think he took hold of my arm, and as I started to step and him not holding my arm, of course I fell.' Concerning the extent of her injury she said that she suffered with pains in her abdomen and was confined to her bed on that account for four weeks; that, at the time of the trial, she still suffered in the same way occasionally.

E. C. Cook testified that appellee fell from the bottom step and her uncle caught her could not tell whether she slipped on footstool or where.

C. H. Gray testified that appellee screamed and fell over from stepbox on Mr. McCall; that, while leaning on McCall, her feet were on the stepbox.

Joel Mills testified that appellee came down as though she were sinking; that her feet were on the ground and she was trying to support herself on Mr. McCall's shoulder; that she seemed to be in pain; that the brakeman was standing to one side, like they always stand to let passengers out.

G. W. Bell testified that as appellee came down on second step she fell and caught with her hands to McCall's shoulder; that the brakeman was at his post as appellee started out.

C. A. Lindsay testified that he had been requested by Dr. Chase to assist in getting appellee off the train on account of weakness due to an operation; that, as she came down the steps, she first handed him her hand; that he said "Let me get hold of your arm" so he could hold her better; that he got hold of her arm and she caught hold of his, and, just as she got her last foot on the step box, she fainted, screamed and fell from him onto somebody who held her up; that the person laid her down on a coat spread on the ground for the purpose; that, had he known she was going to fall, he could have done more; that he was assisting her as nicely as he could, just like he would assist any one who had been operated on; that he was standing on the ground to the right coming out and had one hand holding to the grab iron.

There was evidence tending to show that appellee was given to fainting or sinking spells, and evidence tending to show the contrary.

Appellant first insists that the court erred in excluding the evidence of the conductor, J. J. Myers, concerning the statement of a bystander to the effect that appellee fainted, for the reason, first, that it was a part of the res gestae, and, second, that it contradicted the evidence of appellee, her uncle and family physician, that she was injured.

(1) There was no showing that the bystander saw appellee faint or that he was present at the time of the occurrence. For aught that appears, he may have received the information that she fainted from others. The evidence was not therefore admissible as a part of the res gestae.

(2) Appellee could not be bound by a failure of her witnesses to contradict the statement made in their presence, and, in view of the fact that she was screaming and suffering, that the remark was not addressed to her, and did not impugn her motives or character, she was not called upon then and there to speak; so her silence could not be used as tending to contradict any statement she might subsequently make concerning the injury or the manner in which it occurred. It is only where one is required to speak and refuses that his silence can be treated as a contradiction of his subsequent statements.

Again, appellants insist that the court erred in permitting Dr. Chase to testify that appellee was injured internally. The reasons urged as to the incompetency of the evidence are that there were no physical evidences of an injury of any kind and no examination was made for internal injuries. Appellee screamed and suffered pain when she fell. There were no external evidences of injury. She continued to suffer and was confined to her bed for four weeks on account of nervousness and pain, resulting from the fall. At the time of the trial, she was still suffering in her abdomen at times. Dr. Chase treated her during her illness. She remained in his house one week immediately after the injury. He heard her complaints and screams and had every opportunity to observe her conduct. He was an expert and qualified to express an opinion as to the character and extent of her injury. This court said, in the case of Kansas City Southern Railway Company v. Cobb, 118 Ark. 569, on page 575, that "There can be no question about a physician, an expert in the treatment of diseases, being permitted to testify as to the apparent condition of the patient whom he treats." Under the rule announced in that case, the evidence was admissible.

Appellants also insist that it was error to permit appellee to testify that the school directors, of the school which she was teaching before she became ill, had promised her the school the succeeding summer. It is true definite arrangements had not been made for salary, etc., and that the promise to give her the school was not a legal obligation on the part of the school district, but it was a promise of reasonably certain employment, out of which she would necessarily profit. A. L. Clark Lumber Co. v. St. Coner, 97 Ark. 358.

Appellants also insist that the court erred in refusing to instruct a verdict for them. We think not. There was substantial evidence tending to show that the injury was the direct result of the failure of the brakeman to exercise the proper care in assisting appellee off the train. The brakeman knew that appellee was weak on account of an operation, for he had been so informed. He knew that she and her attendants were depending on him to help her off the train, because his assistance had been requested. According to some of the witnesses, the assistance rendered, if any, was very slight. Only one of his hands was employed in rendering such assistance as he offered. The fact that appellee fell forward and away from him and was caught and supported by another, instead of him, indicates indifferent assistance. Under the circumstances, the jury might well have concluded that the brakeman owed the duty, in the exercise of proper care, to use both hands and securely take hold of and assist appellee safely to the ground, even if she were in a fainting condition. The evidence, viewed in the most favorable light to appellee, is sufficient to sustain the verdict and judgment.

Appellants also insist that it was error to render judgment against the railroad corporation because at the time the injury occurred the railroads were being operated by the Director General. This question was decided adversely to the contention of appellants in the case of Mo. Pac. Rd. Co. v. Ault, 140 Ark. 572. The ruling in that case was recently adhered to in the cases of Kansas City So. Ry. Co. v. Rogers, ante p. 232, and Hines v. Mauldin, ante p. 170.

Appellants also insist that the verdict is excessive. The pain resulting from the injury was so intense that appellant screamed and complained. Her nerves were so shocked and her pulse so excited that it became necessary later to administer a hypodermic of morphine. As a result of the injury, it was necessary to carry her on a mattress from the station to Dr. Chase's home where she was confined to her bed for a week, and from his home on a cot to her uncle's home where she was confined to her bed for three weeks. The attention of a physician was required until the following April. She was prevented from teaching school three months during the winter and a summer school the following summer. She lost $45 a month during the three winter months and such salary as might have been agreed upon for teaching the summer school. She became indebted for a substantial amount to her attending physician. Under the facts in the case, we do not think the verdict excessive.

A number of exceptions to instructions given and refused are urged by appellants as ground for reversal of the judgment. We have carefully considered the exceptions and think none of them are well taken. We think the case was sent to the jury under correct instructions which fully covered every phase of the case.

Finding no error in the record, the judgment is af

firmed.

WEAVER V. EMERSON-BRANTINGHAM IMPLEMENT COMPANY.

1.

2.

Opinion delivered December 6, 1920.

CONTRACTS-NOVATION.-Parties to a written contract may, subsequent to its execution, rescind it in part or in toto and substitute a new oral agreement therefor.

COMPROMISE AND SETTLEMENT CONSIDERATION. - The settlement of a controversy growing out of a written contract is a sufficient consideration for a verbal compromise.

Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor; reversed.

Young & Elms, for appellant.

1. The first contract was modified by the new agreement to the extent of releasing appellant from any obligation to pay the purchase price unless the machinery would meet the requirements of the guaranty. The new agreement took the place of the old one. 112 Ark. 227; Ib. 165; 6 R. C. L. 308; 112 Ark. 223. After a sufficient test both parties were satisfied that the machinery would not do the work it was represented to do, and the manager of appellee abandoned hope of ever getting it to do the work satisfactorily. The testimony shows that the machinery was given a fair test, and it failed to meet the conditions required before appellant was under any obligation to accept.