Missouri, K. & T. Ry. Co. of Texas v. Johnson 1899, the train stopped at a water tank in Dallas to take water. Johnson, acting within the line of his duty, thereupon got off the train and went toward the tank for the purpose of assisting in turning the water from the tank into the tender. In doing so he stepped or fell into a ditch which had been dug by some of appellant's employees on that day for the purpose of laying a drainpipe. He was injured by the fall, and brought this suit to recover damages on account of his injuries. He obtained judgment for $2,500. There was no covering, railing, or guard about the ditch, and Johnson did not know that the ditch was there. He had been on that run for a long time, and had frequently gone from the train to the tank to assist in turning on the water. Prior to the day of the accident, the ground over which he was compelled to travel was smooth and free from obstructions. An electric street light and an electric power house stood near the ditch, and appellant contends that the light therefrom was such as to make it unnecessary to put any guard about the ditch. The evidence is sufficient to justify the conclusion that it was negligence on the part of appellant to dig the ditch and leave it unguarded, and that Johnson was not guilty of contributory negligence. The court, in the general charge to the jury, defined contributory negligence in this language: "By contributory negligence is meant negligence as just defined on the part of plaintiff, which, concurring or operating with negligence as just defined on the part of defendant, is the proximate cause of the injuries complained of by plaintiff." The charge is objected to on the ground that it requires the contributory negligence of the plaintiff to be the proximate cause of the injuries, whereas it is sufficient if such contributory negligence aids in causing them. The objection is not well taken. The charge does not state that, in order to establish contributory negligence, the negligence of plaintiff alone must be the proximate cause of the injuries, but declares that contributory negligence is shown if the negligence of plaintiff concurred or operated with the negligence of the defendant in causing the injuries, which is the very principle contended for by appellant. It was unnecessary to give the special charges requested by appellant on the issue of contributory negligence, as that issue was sufficiently presented in the main charge. Under the second assignment of error, complaint is made of a paragraph of the general charge which reads thus: "However, if you believe from the evidence that the defendant, its agents, servants, and employees, made said excavation or ditch, and left the same uncovered or without any railing, or without any sign or warning of the existence thereof, but you further believe from the evidence that at the time defendant's train stopped for water there was an electric light and light from a certain power house near said point, which furnished light around such point sufficient for the same to be readily seen Missouri, K. & T. Ry. Co. of Texas v. Johnson by a person in the exercise of ordinary care in going up to said excavation or ditch, and if you further believe from the evidence that in so leaving said ditch under said circumstances and surroundings the defendant exercised such a degree of care as a person of ordinary prudence would exercise under the same circumstances, you will find for the defendant; or, if you believe from the evidence that said excavation was left by defendant's agents and employees without any covering over or railing around same, and without any sign or warning of the existence thereof, and there was an electric light and light from a power house which gave light sufficient for said excavation to be readily seen by a person in the exercise of ordinary care going up to same, and if you further believe from the evidence that plaintiff, in going from the place where he got off the train to the point where he was to assist in filling the tank, in the manner in which he went failed to exercise such degree of care as an ordinarily prudent person would exercise under the same circumstances, and if you further believe from the evidence that his injuries, if any were received, were proximately caused by such failure on his part to exercise ordinary care, you will find for the defendant; and this, even though you may believe the defendant, its agents and employees, were guilty of negligence in failing to cover over said excavation, or in failing to place a railing around the same, or in failing to place any sign of warning at same.' By the propositions under this assignment it is contended that the court erred in using the word "readily" in the paragraph quoted, because (1) it required that the lights should have been furnishing more light than was necessary under the law in order to excuse appellant from specially lighting or guarding the ditch, and (2) it was a charge upon the weight of the evidence. It was the duty of the railway company not to put any pitfall or obstruction in the path of its servant, and Johnson had the right to assume that his master would not thus endanger his safety. He was not bound to use care to ascertain whether the company had performed its duty to him. If, however, he knew, or should have known, that the ditch was there, it was his duty to use ordinary care to avoid falling into it. He could not go blindly about his work, and, if the lights around and about the excavation were such as to render obvious the existence thereof to one situated as Johnson was, then it would be held that he should have known of the same. But unless the lights were sufficiently strong to make the existence of the ditch patent and obvious, it was the duty of the company to warn Johnson that the excavation was there, or to place a covering, railing, or other guard over or about the same. Under the facts of this case, the court would not have been justified in charging that the lights were not strong enough to make the excavation obvious; but if, nevertheless, an ordinarily prudent person would have left the same without being otherwise guarded, then the company Missouri, K. & T. Ry. Co. of Texas v. Johnson would not be guilty of negligence, because a prudent master would not have sent his servant over a way which he had rendered dangerous, without warning him of the danger or making it obvious. Unless the lights were sufficient to make the excavation obvious, there was no foundation for a defense based on the fact that the lights were near the excavation, and it was not a charge on the weight of the evidence to submit appellant's theory on this issue in accordance with the rules stated above. Such, we take it, is the effect of the charge given, and we find no error therein. The requirement of the charge that the lights must have been such that the ditch could have been "readily seen" is simply equivalent to an instruction that the lights should have been sufficient to make the excavation obvious. The definition given by Webster of the word "obvious," when used in this sense, is, "readily perceived by the eye. The term "readily seen, in the connection in which it appears in the charge, while not happily employed, is the equivalent of "patent" or "obvious,' which are the terms generally used in legal parlance in stating the rule under consideration. Appellant requested special charges, which were refused, to the effect that if its employees who dug the ditch acted as ordinarily prudent persons would have done in leaving the same uncovered and unguarded, except by the lights, then appellant would not be guilty of negligence, and appellee could not recover. The duty appellant owed to Johnson cannot be determined from the point of view of its other servants who dug the ditch. They may not have known that Johnson would have occasion, in the course of his employment, to travel along there in the nighttime, and, not being aware of that fact, it may have reasonably appeared to them that they might prudently leave the ditch without other safeguards than the light. But appellant knew that Johnson would be called upon, in the performance of duty, to go over the ground where the ditch was, and that fact should be taken into consideration in determining whether there was negligence. In other words, the question of negligence must be determined from the standpoint of the company, and in the light of its duty to Johnson, and not from the standpoint of its employees who dug the ditch, and who knew nothing of Johnson and owed him no duty. There was no error in refusing to give the special charges. It appears from a bill of exceptions that Dr. Field testified that some six months before the trial-which was after this suit was begun, and about a year after the accident-he was called on by appellee to examine him professionally for the purpose of qualifying himself to testify on the trial of the cause, as an expert, as to the nature and extent of appellee's injuries, and that on such examination appellee complained of suffering considerable pain in certain portions of his back, and that when Dr. Field would stick pins in him along his Missouri, K. & T. Ry. Co. of Texas v. Johnson right leg he would exhibit no signs of suffering pain, but that when he would stick pins in at corresponding places on his left leg he would flinch and complain a great deal. Appellant objected to Dr. Field testifying to anything appellee said or did while he was being examined by the physician for the purpose of testifying in the case, and not for the purpose of treating appellee for his injuries; the grounds of objection being that such evidence would be self-serving, hearsay, immaterial, and irrelevant. The objections were overruled, the testimony admitted, and exception was duly reserved. In Wheeler v. Railway Co., 91 Tex. 356, 43 S. W. 876, Wheeler, the plaintiff, who was injured in a railway accident, caused himself to be examined by a physician, after suit brought, for the purpose of procuring testimony as to his injuries for use on the trial. The physician testified that Wheeler complained all the time with a roaring and dull aching pain in his head, more especially in the back of his head. The testimony was objected to on the ground that it was hearsay. It was held that the complaint, made under the circumstances stated, was the natural expression produced by the roaring and pain in the head at the time, that is, that the complaint made was induced by the roaring and pain as it then existed,-and that the complaint itself was in fact a part of the res gestæ, and therefore not subject to the objection that it was hearsay. The court declined to determine the question whether the expression of pain was self-serving, as the objection had not been made. The declaration made by the appellee in the case before us, that he suffered considerable pain in certain portions of his back, appears to have been made under circumstances practically identical with the circumstances surrounding the declaration of the plaintiff in the Wheeler Case. It must be held, therefore, that the complaint of appellee was the natural expression produced by the pain then existing, and that, this being so, the complaint was a part of the res gestæ, and not hearsay. If it was a part of the res gestæ, then the objection that it was self-serving cannot be sustained. The res gestæ-the whole of the transaction under investigation, and every part of it-is always admissible. An act or statement of a party which is a part of the transaction is original evidence, and the courts will not inquire into the question whether the same was calculated and designed, for the purpose of determining its admissibility. The testimony of Dr. Field to the effect that he stuck pins in appellee's right leg, and that he showed no signs of suffering pain, was properly admitted. It appears that appellee was claiming that there were anæsthetic spots on certain parts of his body; that is, that certain parts of his body were devoid of all sense of feeling. It seems that one means of testing the truth of the claim was to stick pins in the parts supposed to be affected, and watch the result of such action. Appellee had a right, even pending the litigation, to have all Missouri, K. & T. Ry. Co. of Texas v. Johnson proper examinations and tests made to ascertain the nature and extent of his injuries, and the result thereof could be proven on the trial. This was the matter under investigation, and how appellee bore the tests applied was a part of the transaction and clearly admissible. It was a question for the jury to decide, in the light of circumstances shown to have attended the experiment, whether his indifference to pain was simulated. No statement of appellee that it did not hurt him to stick pins in his right leg was admitted. Only the negative fact that he did not flinch when the test was applied went to the jury, and it was not error to admit such evidence. The testimony of Dr. Field that when he stuck pins in appellee's left leg he flinched and complained of pain simply tended to show a normal condition of that part, a fact which would have been presumed without such test and proof. Whether this was a necessary part of the transaction—that is, of the examination-may be doubted, but it can hardly have been injurious to appellant. The judgment is affirmed. On Rehearing. Complaint is made in the motion for rehearing that we erred in holding that appellant was not entitled to a charge that if the lights near the excavation were not sufficient to make the same obvious, but if, nevertheless, an ordinarily prudent person would have left the ditch without other guards, appellant would not be guilty of negligence. The holding was based on the theory that the evidence showed conclusively that there was negligence, if the lights were not such as to make the ditch obvious, and not upon the theory that appellant owed Johnson any duty except to use ordinary care to prevent him from being injured on account of the ditch having been dug in the way over which he was compelled to travel. Of course, appellant had a right to dig the ditch, as the same was a necessary work; but the ditch, in its unfinished condition, was manifestly dangerous to any one traveling along there in the dark, under the circumstances surrounding the appellee, and appellant was therefore bound to use ordinary care to protect Johnson from the danger. Appellant knew that Johnson would have occasion, in the performance of duty, to go past the ditch in the nighttime, that he did not know that the ditch had been dug, and that he would naturally suppose that the way was safe and clear. Knowing these facts, it placed no covering over, railing around, or guard at the ditch, and did not notify Johnson of its existence. These facts were uncontroverted, and establish a clear case of negligence. The only excuse offered by appellant for not taking some precautions to prevent the accident was that there were lights near the place which illuminated the same to some extent. The jury found, in accordance with the preponderance of the evidence, that the lights were not sufficient to make |