In obedience to the instruction of the court, I tract, covered by liens in favor of Nix, was a verdict was returned that Nix recover of conveyed subject to the lien, and the comthe company, Withers, and Finucane and pany was to hold Withers harmless with refwife the land in controversy, and that the erence thereto. On March 2, 1914, an agreecompany take nothing by reason of its cross-ment was made in writing between Nix and action. Judgment was entered in accordance Withers and the company, in settlement of with the verdict, from which the company the suit then pending, which agreement has alone prosecutes this writ of error. [1, 2] The record fails to disclose any objections to the giving of the peremptory instruction, or that the charges requested by the company were tendered at the proper time and the refusal thereof excepted to. Owing to this condition of the record, the company is in no position to complain of the verdict and judgment, and, as all assignments relate to the sufficiency of the evidence to support the verdict and judgment, they must be overruled. This court has heretofore held, and is still of the opinion, that the giving or refusal of a peremptory instruction does not raise a question of fundamental error. Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Land v. Johnson, 189 S. W. 337; Pearce v. Knights & Ladies of Honor, 190 S. W. 1156. [3] As the Supreme Court has granted a writ of error because of conflict upon the question whether article 1971, R. S., as amended by Laws of 33d Leg. p. 113, applies to a peremptory instruction, and has not passed upon the question, we deem it proper to say that, if objections had been properly urged to the giving of the peremptory instruction, we would overrule the assignments of error, for we are of the opinion that the court was correct in his ruling. hereinbefore been described in stating the substance of plaintiff's supplemental petition. The suit was thereupon dismissed. Withers and the company failed to pay the balance of the purchase money on December 1, 1914, as provided in said agreement, and the time was extended to January 1, 1915. They again failed to make payment, whereupon the deeds were delivered as pleaded by plaintiff and duly recorded. Nix filed this suit on January 26, 1915. The case was tried on January 18, 1916. Evidence was introduced tending to show that the company had expended a large sum in preparing the land for the purposes for which the company was chartered. The board of directors consisted of Withers, H. C. King, Jr., S. A. Hopkins, J. H. Savage, and Harvey L. Paige. Hopkins and Savage did not testify. Paige had no recollection of the matter of the settlement agreement ever being discussed by the board of directors, and disclaimed any knowledge thereof prior to the filing of this suit. He admitted knowledge of Nix's lien. King, who was the secretary of the company, did not recall whether the board of directors ever held a meeting to consider the settlement before or after the execution of the deed. He attested the deed as secretary and knew it was in settlement of the litigation. Withers testified, in substance, that the settlement was not authorized or ratified by the board of directors. Withers testified that for the two years preceding the trial there had "been no money to get"; that his friends had been exhausted; that he had gotten about all the money from them they could put up; that in his opinion the land was worth $150 an acre, but he would not say that it would sell for that; that no one could tell what the land would have sold for; that nothing had had any market value in two years, and he would not undertake to say what the land in controversy would have sold for; that he would never have undertaken to sell the land, because no one would buy it. There was no testimony that the company had ever tendered the amount due Nix, or that it had ever been able to pay it, or that it was able to pay it at the time of the trial. The facts, briefly stated, are as follows: The 1,053.5-acre tract, of which the land in controversy is a portion, was conveyed by Nix to Withers on February 15, 1910, for $85,000, of which $15,000 was paid cash, and afterwards notes aggregating $30,000 were paid, and Nix, on August 22, 1911, released to Withers and Masterson, who had become interested with Withers, 300 acres lying nearest to the city of San Antonio; the vendor's lien expressly retained in the deed remaining in full force against the remaining 753.5 acres to secure the payment of two notes for $20,000 each, due on the 1st day of July, 1912 and 1913. These notes were not paid when due, and on November 20, 1912, Nix, who then owned the notes, sued Withers, and perhaps Masterson, to recover upon said notes and to foreclose the vendor's lien. On August 12, 1913, the charter of Rock Hill Country Club Company was filed in the office of the Secre- [4] It must be conceded, we think, that it tary of State. On the same date, Withers cannot be held that the evidence conclusively conveyed to H. C. King, Jr., as trustee for shows authority from the board of directors said corporation, 3,019.09 acres of land, and to make the deed executed by Withers and on August 13, 1913, said King, joined by King, or that their act was ratified by the Withers, conveyed said 3,019.09 acres of land board of directors. But, taking it for grantto the corporation. The 1,053.5-acre tracted that Nix could not recover on the deed, it above referred to constituted a part of said follows that he could not have lost his rights 8,019.09 acres, and it was stipulated that the as the holder of the superior title. Gardener v. H. & T. C. Ry. Co., 186 S. W. 233; Reyes v. Kingman Imp. Co., 188 S. W. 450. The company was chargeable with notice of his title and his rights when it purchased Withers' equity in the land. If the company is chargeable with notice of the facts coming to the knowledge of its secretary, it had notice of the fact that it had procured a valuable extension by means of an agreement made by its managing officers to rescind the executory contract if it could not pay the debt by December 1, 1914. If it is not chargeable with such notice, then the fact remains that the directors were negligent in not taking steps to acquaint themselves with the situation with respect to the lien against the land, and the company is in no position to invoke the aid of equity to prevent the rescission. In fact, while the prayer of the company was to the effect that it be granted the right to redeem, it does not appear that it was ever able to redeem, or that it ever made any effort to do so, and when the case was tried it sought to procure a peremptory instruction to return a general verdict in its favor. In view of the facts of this case, we believe the company was not entitled to a decree for specific performance of the executory contract, and that the court did not err in instructing the jury to return a verdict in favor of Nix. The judgment is affirmed. On Motion for Rehearing. [5, 6] We are of the opinion that a peremptory instruction is a charge within the meaning of the statute requiring objections to be made before the charge goes to the jury, and that a failure to object thereto constitutes a waiver of the error, if error there be, in giving the same. If the doctrine of fundamental error can be invoked to avoid the requirements of the statute, an assignment which requires a study of the statement of facts does not, we think, present a question of fundamental error. Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533. 124 S. W. 85; Railway v. Maxwell, 104 Tex. 632, 143 S. W. 1147. Appellant company, upon the theory that its assignments are entitled to consideration, contends that appellee specially pleaded his title and relied solely upon the deed to him by Withers as president of appellant company, and that, as appellee failed to show authority from the board of directors to Withers to make the deed, this court erred in sustaining the peremptory instruction. Its contention is that we should render judgment for it for the land, and it is virtually admitted that it is in no position to demand the right to redeem, We will briefly consider the question whether the pleadings are in such condition that appellant should have been awarded a judgment for the land without paying for it. Appellant answered by general denial and plea of not guilty, and, by way of further answer and cross-action, alleged the sale by Nix to Withers of the land, the execution and delivery of the vendor's lien notes, and the conveyance of the land by Withers to appellant company subject to the debt due Nix; such allegations disclosing that the notes had matured long prior to the bringing of the suit. It pleaded that it had equities, describing them, which entitled it to redeem the land from the purchase-money debt against it, and averred its willingness to pay the debt. Its prayer, aside from its claim for damages, is that the deed by Withers as president of appellant company be canceled, and that it be allowed to pay the purchase money due on the land. We find no mention of the deed from Withers to Nix in the original answer except in the prayer. [7, 8] Plaintiff, by supplemental petition, admitted some of the averments of the anHis pleading is swer, and denied others. fully described in our original opinion. Surely the facts pleaded by him showed that he had retained the superior title to the land; that Withers and appellant had refused to pay the notes, though past due; and that he elected to recover the land. These facts entitled him to recover in the absence of equities entitling appellant to tender the purchase money and demand specific performance. Sanders v. Rawlings, 77 S. W. 41; Roosevelt v. Davis, 49 Tex. 464; White v. Cole, 87 Tex. 500, 29 S. W. 759; Buckley V. Runge, 136 S. W. 535. True, he also alleged that the company had conveyed the land to him in rescission of the contract. If this had been established, he could have recovered by virtue of the deed; but, even if the deed was unauthorized, the fact that he pleaded it would not prevent him from recovering upon a good title pleaded by him be said that by filing a supplemental petition and admitted by appellant. Therefore, if it Nix brought himself within the rule applicable to pleading title specially, it is clear that the facts pleaded by him, and admitted by defendant, showed that he held the title to the land, even though the deed from Withers to him was not authorized by the board of directors; and especially is this true in the absence of exceptions, as was suggested by Chief Justice Conner in the case of Berry v. Jagoe, 45 Tex. Civ. App. 6, 100 S. W. 815, when a somewhat similar point was sought to be made with respect to pleading. Appellant apparently is of the opinion that the holder of the superior title would have to formally allege that he had elected to rescind and pray in terms for rescission. cases of Roosevelt v. Davis and Sanders v. Rawlings, supra, no such allegation was made, and the pleadings were held sufficient. In the [9-12] The suit for the land is a rescission in itself, and, while notice of intention to Appellees' original petition was a formal rescind might be important with respect to action of trespass to try title. the right to redeem, it is unimportant so far as pleading title is concerned. If it were necessary to formally allege that plaintiff had elected to rescind, it occurs to us that, in the absence of exception, plaintiff's averment that he placed on record an instrument purporting to be a contract of rescission by the company would be sufficient allegation of rescission. Appellant calls attention to the fact that the deed from Nix to Withers and the vendor's lien notes were not introduced in evidence as a fact showing that appellant did not depend on the superior title, but solely on the deed reconveying the land to him. The intention of the pleader could not alter the legal effect of the facts alleged, but we fail to see any evidence of intention to rely solely on the deed. It was wholly unnecessary to introduce evidence of facts pleaded by both sides. It furthermore appears that Nix introduced the deed by Mary Gleason to him for the land, and thereupon "it was agreed by both parties that J. M. Nix originally owned the land and that the lien was retained in the deed to Withers." Evidently such agreement was considered sufficient to obviate the necessity of introducing the deed in evidence. In addition, the facts are shown by recitals in other instruments and testimony of witnesses introduced without objection. In an action for death of a section man on the track at midnight with a motor, whether negligence of the deceased or of the railroad was the proximate cause of the death held a question for the jury. 289(1)-PERSONS ON TRACK NEGLIGENCE CONTRIBUTORY 5. MASTER AND SERVANT NEGLIGENCE-STANDARD of Care. The question whether section foreman killed on a railroad track was in the exercise of such due care as would be expected of a reasonably prudent and careful person, under similar circumstances, is no more a question of law for the court than the question of negligence on the part of the railroad. 6. EVIDENCE 150-EXPERIMENTS - LIGHT ON TRACK. In an action for death of person on a track at night, evidence of experiments made under similar conditions, for the purpose of demonstrating that the headlight of an engine did not leave the track in darkness because of a curved track, was admissible. 7. MASTER AND SERVANT 291(3)—PERSONS ON TRACK-PLEADING-ISSUES. A complaint in an action for death of section foreman, alleging that deceased was rightfully upon the track with motorcar in the night, justified an instruction suggesting that deceased "was on the motorcar, or standing or lying down near." 8. MASTER AND SERVANT 286(31)-PERSONS ON TRACK-EVIDENCE-INSTRUCTIONS. [13] Appellee Nix pleaded the facts fully, and it was not necessary to state the legal effect thereof. The facts showed that he was entitled to recover the land unless the company proved equities entitling it to enforce specific performance, despite its default. The company abandoned its plea of right to redeem. and sought to obtain a judgment for the land upon the theory that Nix under his pleadings could only stand upon the deed by Withers as president of the company reconveying the land to Nix. Appellant's theory is erroneous. It is not entitled to recoverly stated the ordinary care required of him. the land. In an action for death of section foreman on track, evidence held to warrant a submission of the question as to habitual use of the track as bearing on duty to keep a lookout for persons on the track. The motion for rehearing is overruled. 2. MASTER AND SERVANT 281(1)-INJURIES ON TRACK-NEGLIGENCE EVIDENCE. In an action for the death of a section foreman killed while on the track at midnight with a motor, evidence held sufficient to sustain a finding that he was not drunk, or lying on the track to sleep, or negligent. 3. MASTER AND SERVANT 278(18)-PERSONS ON TRACK - NEGLIGENCE-SUFFICIENCY OF EVIDENCE. 9. TRIAL ~296(4, 5)—NEGLIGENCE-INSTRUCTIONS. that omitted the duty of injured person to use A portion of a charge in a negligence case ordinary care to avoid injury, was not error, where the charge in another paragraph correct 10. RAILROADS 369(4)-PERSONS ON TRACK -TRESPASSERS. It is the duty of a railroad to exercise care not to kill a trespasser or a drunken person. 11. MASTER AND SERVANT 247(1) — RAILROADS DISOBEDIENCE OF RULES-NEGLIGENCE. If a railroad's engine was operated negligently and this negligence was the proximate cause of the death of a section foreman on the track with a motorcar, the railroad is liable, notwithstanding negligence of the foreman in being where he was. Appeal from District Court, Brazos County; J. C. Scott, Judge. Suit by Smithie Loftin, for herself and minor children, against Jas. A. Baker, receiver of the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed. Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellant. Lamar Bethea and W. C. DaIn an action for death of a section man on track with a motor at midnight, evidence vis, both of Bryan, and Ward & Bickett, of held sufficient to sustain a finding that the track San Antonio, for appellees. SWEARINGEN, J. Appellee, Smithie Lof-| Mexicans bought provisions, and about 9:30 tin, widow of Charlie Loftin, for herself and p. m. all the party, boss, nephew, and laboras next friend and guardian of their two minor children, brought this suit against the appellant, acting receiver of the International & Great Northern Railway Company, to recover damages for the death of Charlie Loftin by the alleged negligence of appellant. Appellees' first amended petition alleged as the cause of action that Charlie Loftin was in the employ of appellant as foreman of the section of appellant's track where the injury occurred; that deceased was, by virtue of the duties of his employment, rightfully upon the track at the time, place, and manner when killed; that it was appellant's negligence that proximately caused the injury, because the operatives of appellant's train discovered the peril of deceased in time to have avoided the injury by the exercise of ordinary care, or if the peril was not actually discovered, yet the proximate cause of the injury was the negligence of appellant's train operatives in failing to exercise that ordinary care to look out and discover the position on the track which the circumstances required of appelant. Appellant excepted to the sufficiency of the first amended petition, both generally and specially, generally denied appellees' allegations, and specially answered that appellant was guilty of no negligence, but that deceased suffered the injury by reason of his own contributory negligence. The foregoing statement of the pleadings is intended to briefly outline the salient issues pleaded which will be considered by us with reference to the application thereto of the evidence by the jury and by the court in its charges. The case was submitted in a general charge, supplemented by specially réquested instructions. Upon a verdict in favor of appellee judgment was rendered for $8,000. The testimony developed the following facts: Charlie Loftin was a section foreman in the employ of appellant, and lived in appellant's section house at Fountain switch, which is about seven miles in a northern direction from Bryan, Tex., and about one mile north of the bridge near which deceased was killed at the time alleged, by appellant's engine. Appellant furnished deceased with a motorcar to be used and operated by deceased on appellant's railroad track, subject to several rules known to deceased. Deceased employed laborers in the work required of him as section foreman. On Saturday, July 1, 1916, deceased, with his nephew and two Mexican laborers were busy performing their duties for appellant on the section until 5 o'clock p. m., after which time all four went on the motorcar from the section house at Fountain switch for the purpose, among other things, of getting money for the Mexican laborers. After arrival in Bryan, the ers, mounted the motorcar to return from Bryan to the section house at Fountain switch. While in Bryan deceased and his nephew drank four of five glasses of beer each. When the party left Bryan, deceased had several bottles of beer and a 25 cent bottle of whisky with him. Deceased operated the motorcar. After traveling about five miles from Bryan, the car stopped at Thompson Creek crossing, which was about two miles from the section house at Fountain switch, and about one mile south of the scene of the killing. Here the entire party dismounted from the motorcar and remained nearly 21⁄2 hours. The Mexicans mounted the motor first, deceased became angry with them and required them to get off. Then deceased attempted to force them to get back on, but the Mexicans ran off along the railroad track in the direction of the section house. Deceased took his position on the motorcar and told his nephew to shove the car off, which he did. Deceased was angry with the nephew, and forced him to get off the motor while in motion. There was a lighted lantern on the frame of the motorcar visible from the rear of the motorcar. The motor was heard popping, by the nephew, as it went for quite a distance. The nephew made his way to the section house across the fields, where he secured a lantern for the purpose of returning to meet his uncle, but did not do so. The motor stopped near a bridge about 1,200 feet north from the Smetana Railroad crossing, a public crossing. The lighted lantern on the motor was seen burning at 12 o'clock, midnight, at this point by a party of boys and girls, who also heard a man singing in the neighborhood of the lantern. The light was visible from the Smetana crossing, and was seen by the group of boys and girls from distances of 200 to 500 yards, and seemed to be on the railroad track, near the railroad bridge. One of the girls saw the light from the lantern until the engine of the north-bound passenger train extinguished the lantern light, wrecked the motorcar, and killed the deceased. Smetana crossing was more than 1,200 feet south of the place of the injury, and the train operatives had an unobstructed view of the track ahead from the Smetana crossing to the place of injury. No warning of any kind was given of the approach of this north-bound train. There was testimony for appellant that the admitted 2 per cent. curve in the track, beginning just south of Smetana crossing and extending to a point beyond the place of injury, rendered it impossible for the engineer and fireman to discover the presence of deceased or the motorcar in time to avoid the injury. The testimony was that the headlight, because of the curved track, shone to the left of the track at the scene of Deceased was an experienced section foreman, having worked for appellant in that capacity for about 9 years. He was 52 years old, strong and active. The railroad track between Smetana and Fountain switch was habitually used night and day by the general public. The engineer testified that it was his duty to keep a lookout to avoid injuring persons between Smetana crossing and Fountain switch. the killing and left the place of injury in it had become derailed or had gotten out of darkness until the engine was within less order and stopped, and deceased was trying than 100 feet of the deceased, and that the to clear the track by removing it is not extrain could not be stopped in less than 600 plained. feet. Contradicting this testimony, there was evidence that the headlight of the engine enveloped the track, where deceased was killed in a bright light, from the time the train reached Smetana crossing continuously as the engine approached the place of injury, and that deceased and the motorcar were clearly visible to the operating engineer and fireman continuously from Smetana crossing to the place of injury. According to appellant's witnesses, the headlight was a narrow beam. According to appellee's the headlight was very wide. The evidence was undisputed that a light from a lantern on the top of the frame of the motorcar on the track at the place of the injury could be seen by the engineer and fireman as far back as the Smetana crossing, more than 1,200 feet away, and continuous-lookout; that deceased's peril was not discovly from the Smetana crossing to the place of injury. The engineer and fireman both testified that there was no light from a lantern on the motor during the time the engine reached Smetana crossing and approached the place of the injury. The jury could, and probably did, find from the evidence that the engine headlight sufficiently illuminated the place of the injury in a way to give the engineer ample time to have avoided the injury, and that the lantern light did shine a warning of the danger of deceased, which warning signal should have been observed by the engineer, and the injury avoided. [1-5] By the first assignment of error it is insisted that the trial court erred by refusing to instruct the jury to return a verdict for appellant. The reasons given by appellant are: That the evidence conclusively shows that deceased was a trespasser, and that appellant owed him no duty to keep a ered in time to have avoided the injury; that the proximate cause of the injury was deceased's own negligence. With the opinions in the Shiflet, Malone, and Matthews Cases before us, we have carefully examined the merits of this assignment, and have reached the conclusion that the court did not err as assigned. St. Louis & S. W. Ry. Co. of Tex. v. Shiflet, 98 Tex. 326, 83 S. W. 677; St. L. & S. W. Ry. Co. of Tex. v. Shiflet, 94 Tex. 131, 58 S. W. 945; M., K. & T. Ry. Co. of Tex. v. Malone, 102 Tex. 269, 115 S. W. 1158. The evidence in the case at bar was sufficient to require the court to submit to the jury the issues assumed by appelThe fireman testified that he discovered the lant, viz.: Was deceased guilty of negligence? deceased lying at right angles to the track, Was appellant guilty of negligence? Which with his head on the left rail; that this dis- negligence was the proximate cause of the covery was made when the engine was about injury, in the event both were negligent? 30 feet from deceased, and could not have Appellant contends that the court should find been discovered sooner or further away be- as a matter of law that deceased was guilty cause of the failure of the headlight to il- of negligence, because he was a trespasser; luminate the curved track. The fireman fur- because he was drunk; because he laid down ther testified that he gave an immediate to sleep in a dangerous position. The testiwarning to the engineer of his discovery, mony in this case made all three of the above and that the engineer brought the engine to issues questions of fact for the jury, and will a stop 675 feet beyond the place of the in- sustain a finding in favor of appellees on all jury. According to the testimony of the en- of them. It will sustain a finding that degineer and fireman, the engineer saw the ceased was licensed by the appellant to use motorear about the same moment that the the track as he did, that deceased was not fireman first saw the deceased; and the en- drunk, and that he was in the act of clearing gineer did not discover the deceased, nor the the track after flagging the approaching train fireman the motorcar until after the killing. with a lighted lantern. The evidence will The location of the body and groceries tends also sustain a finding of the jury that it was to prove that deceased was on the motorcar the duty of appellant's engineer and fireman where last seen by the nephew. The evidence to keep a lookout, and that if this duty had fails to explain why the deceased stopped been performed by both or either, the peril at the place of the injury. or why he remain- could have been avoided, for the engine light ed there until hit. There was evidence that was sufficient to have disclosed the danger in he may have been drunk. There was evi- time to have avoided the injury, and the landence that the motorcar may have gotten tern light on the motorcar was also a suffiout of order. There was evidence that cient warning. Whether or not the negligence the motorcar was partially off the track of the appellant was the proximate cause of before it was struck by the engine. Whether the injury, even though deceased were negli |