This was an action for personal injuries, brought by appellee against the appellant corporation. The appellee took service as a brakeman on a train of the Missouri Pacific Bailway Company. The train, being operated upon appellant’s road, passed on to a side track, where it became his duty to uncouple the cars. The side track, as he testified, was badly constructed and was uneven, and was not filled in between the ties. On account of the unevenness of the track, as he further testified, the cars being in motion, he was unable to uncouple them while remaining upon the ground. He therefore mounted a flat car that was to be detached and attempted to withdraw the pin while occupying that position, but by reason of a jolt resulting from the unevenness of the track, as he swore, he was thrown between the cars, and in order to ex-*646trícate himself caught with his foot upon the coupling. lie further testified that he would have succeeded in saving himself but from the fact that the continued jolting of the cars resulting from the roughness of the-road prevented him. His foot was crushed between the coupling and was injured to such an extent that an amputation became necessary.
The conductor of the train gave evidence contradictory of the testimony of the plaintiff as to the manner in which the accident occurred, but upon cross-examination admitted that he did not see the plaintiff until he jumped from the cars, at which time the injury had been inflicted. He admitted that his testimony upon this point was a mere matter of opinion; and if an objection had been urged Jo it, it should have been excluded.
The plaintiff entered the service of the Missouri Pacific Railway Company only nine days before the accident, and at the time he so entered he was practically without experience, in railway work. He testified that he was not instructed as to his duties; was not aware that the mode of uncoupling attempted by him was dangerous; and that but for the defect in the track he could have saved himself from injury.
The conductor testified that he warned him but an hour before the accident not to attempt to make a coupling while on the cars, and that immediately after the injury was inflicted he reminded him of his warning, and that the plaintiff expressed his regret that he had not taken the advice.
The plaintiff in his rebutting evidence denied the warning, and also denied that any such conversation occurred as that to which the conductor had testified. Upon the latter point the plaintiff was corroborated by two-other witnesses. The plaintiff also testified that in working on the road he had passed the side track, but had not observed it and did not know of its defective condition until the time of the accident.
The appellant’s first six assignments of error complain that the verdict of the jury is not supported by the evidence in the following particulars, to-wit: (1) As to the condition of the side track; (2) as to the question of contributory negligence; and (3) as to a knowledge of the plaintiff as to the defects in the side track.
We think that there was evidence sufficient to justify the jury in finding that the side track was in bad condition, and that but -for its defective condition the plaintiff would not have been injured; that he was inexperienced and had not been instructed as to the dangers and manner of making the coupling, and that therefore he was not negligent; and that, he had no knowledge as to the imperfect state of the track that caused the accident.
It is also complained in effect that the verdict is against the evidence, “ because the proof showed that plaintiff, when applying for a position as brakeman, represented' himself as having had two years experience railroading, and obligated himself to observe all the rules and regulations *647of the railroad company, and declared that he had been informed of the duties of a railroad brakeman and had been told of the great danger the duties of brakeman would expose him to; and the proof showed also that he had been instructed concerning the duties of a brakeman after he went into the service of the Missouri Pacific Railroad Company and previous to his injury; and because the proof showed further that it was a gross violation of the rules of the company for an employe to get on the train or try to uncouple the cars while in motion, and that it was dangerous to go between the cars while in motion to uncouple them; and further, the evidence showed that plaintiff violated all of these rules at the time he was injured.”
It would be sufficient to say in order to dispose of this assignment that the proof, as exhibited in the statement of facts, showed none of these things. But it is to be inferred that there was introduced in evidence a contract with the Missouri Pacific Railway Company signed by the plaintiff at the time he entered into its employment. This contract, however, is not set out in the statement of facts either at length or in substance. The trial judge who made up the statement of facts doubtless intended that the clerk should copy the contract, but this the clerk properly declined to do. Counsel for appellant complains that it should not be made to suffer for the default of the trial judge. But we do not see what relief we can afford it.
We must act upon the statement of facts as we find it, and the law pro- • vides no means for its amendment. It is probable if counsel had tendered the judge a statement of the evidence approximately correct, in which the alleged contract was copied or its substance stated, the judge would have utilized so much of the statement at least as related thereto, and would have incorporated it into that prepared and certified to by him.
The plaintiff testified that he recollected signing some writing, but did not know it was a contract, and did not read it. But the effect of this evidence we need not consider.
It is also insisted that the court erred in charging the jury, in effect, that if the plaintiff was injured by reason of a defective side track of the defendant without fault on his part the defendant would be liable for the injury, although at the time of the accident he was acting as a brakeman of the Missouri Pacific Railway Company on a train then operated by the latter company on defendant’s road.
In the case of Railway v. Culberson, 72 Texas, 375, it is said: “It may now be considered the accepted and settled doctrine that in all cases where one railroad is operating trains upon the road of another without authority of law, the owner of the road remains responsible for its duties to the public, and becomes liable for the lesseejs failure to perform these duties.” But in that case it was held that a servant of the lessee could not recover of the lessor for an injury which resulted to him by reason of a defective *648engine belonging to the lessee. In the opinion it was intimated that if the injury had resulted from a defective road bed of the lessor the plaintiffs might have been entitled to recover. Such is the case we now have before us. The evidence does not disclose by what authority the Missouri Pacific Railway Company was operating its train upon appellant's road. There is no law of which we are advised that authorized the defendant to lease its line. We merely know the fact that the one company was running a train upon the road of the other, and the presumption is that it was by virtue of a license granted by the latter. The defendant company by accepting its charter assumed the obligation to keep its tracks in safe condition for the operation of trains over them, and to do this is a duty it owes to all persons who are permitted by it to travel upon or operate trains over it. The plaintiff being employed upon the train of another company which was making trips over the defendant's road, as the evidence shows, was entitled to presume that this duty would be performed, and having been injured by reason of the failure to perform it, he is entitled to recover of defendant damages for his injury. Nugent v. Railway, 80 Me., 62.
Delivered February 20, 1891.The appellant complains that the verdict should have been set aside upon the ground that it was excessive. The plaintiff testified that he had suffered great pain; that before the accident he was earning $60 per month, and that since he had been enabled to earn only $10 per month. There was the loss of a foot. Under the circumstances we do not feel authorized to set aside the verdict on the ground that it is excessive.
There was no error in the charge complained of in appellant’s last assignment. All the witnesses agreed that there was an accident, and the court did not err in assuming the fact. The charge therefore was not upon the weight of the evidence.
We find no error in the judgment and it is affirmed.
Affirmed.
Motion for rehearing argued by Bobb é Stephenson, for appellant.