The question of jurisdiction decided in Bartee v. Houston and Texas Railroad Company, 36 Tex., 648, and so elaborately discussed in the briefs of coun*345sel for plaintiff in error, is not one which is properly before us in this case. There was a plea to the jurisdiction, but ■ the record shows no action of the court on that* plea; nor does it show that, by charges asked or otherwise, save in a motion I for new trial, any action thereon, of either court or jury, was invoked. In this state of the record, it must be presumed that the' plea was waived. The charge of the court allowed the plaintiff to recover, if the injury was caused by the negligence of another employee, by his employment superior to or placed in control of plaintiff', or by the improper construction of the road, the tank, or the cars, and was not caused in any degree by the carelessness or negligence of plaintiff.
If the record contains any evidence that the injury was the result of negligence or misconduct on the part of the engineer, conductor, or other superior officer, it is of a character too slight and inconclusive to support a verdict. Counsel for plaintiff in error say that for this reason they invoke no opinion on that part of the charge, and, under the circumstances, none will be expressed.
That the company was responsible if the injury was caused by the improper construction of the road, tank, or cars, without any carelessness or negligence on the part of the plaintiff, was not contested. The law is believed to be settled, that it is the duty of the railroad company to use ordinary care to provide-such cars, road-bed, tanks, &c., as are reasonably safe; that a failure to do this, is negligence chargeable on the company itself; and that the company is responsible in damages to an employee for an injury resulting, without his negligence,. from a tank or other appendage of the road so negligently constructed as to subject the employee to unnecessary and extraordinary danger which he could not reasonably anticipate or know of, and of which he in fact was not informed.
In the answer, it was alleged, that if there was any imperfection in the road-bed or structures, the plaintiff well knew of them, and that the accident was occasioned by his own *346negligence. The only complaint made of the charge in this branch of the case, is the refusal to give certain instructions asked, to the effect that Oram was not entitled to recover if he could, by the use of ordinary care or caution, have avoided the danger, and giving the following definition : “ Ordinary care and caution is such care and caution as a prudent man would exercise under similar circumstances.” This definition is sanctioned by authority, (Shearman & Redf. on Reg., sec. 20,) and no good reason is perceived for the refusal to give it,—unless, indeed, the court regarded the explanation as failing to make the subject, more intelligible to the jury. It does not, however, become necessary to inquire whether the refusal of these instructions constituted a material error.
A part of the charge urgently complained of, is that allowing the jury to consider counsel fees in estimating damages.
Counsel fees for the prosecution of plaintiff’s demand in cases of tort for negligence are not a natural or proximate result of the injury, and are not to be regarded in such cases in estimating actual damages, but may be considered by the jury, in a proper case, in fixing the amount of exemplary damages. (Addison on Torts, p. 988; Hilliard on Remedies for Torts, pp. 507, 508.) This subject was so fully considered, in the opinion delivered a few days since, in the case of Lander v. Obert, as to render its further discussion or further reference to authority unneccessary. It is not material to inquire whether this case was, either under the pleadings or evidence, one in which exemplary damages might have 1 leen given, and therefore one in which counsel fees might be considered. Whether it was or was not such a case, we are of opinion that there was no evidence as to counsel fees justifying the charge, and that the only evidence on that subject was of a character calculated to mislead the jury, and such as to render the charge on that subject erroneous. There was no evidence as to what was a reasonable moneyed or cash fee; but the only evidence on the subject was that contingent fees of one-half the amount recovered were usually *347contracted for. We are aware of no authority which would authorize in any case the consideration of any other than reasonable cash expenses and fees. The relaxation of the common-law rule forbidding contingent fees out of the subject-matter of litigation as champertous, is simply a concession to the rights and necessities of litigants. The proposition, that the necessitous condition of the plaintiff, or the nature of his contract with his counsel, could operate to increase the damages to which the defendant is otherwise liable, scarcely needs refutation. The amount of the verdict in this case is such as could scarcely have been arrived at by any fair estimate of actual damages; and it seems a not unreasonable conclusion that the jury were misled by the evidence and the charge as tp counsel fees. The effect of the charge, in connection with this evidence, may have been to double the amount of the verdict. For this error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.