The fact inquired about, and to which the witness testified, may have been within her personal knowledge, independent of any statement or transaction that occurred between her and her deceased husband, John Field; and the answer given was not necessarily the mere expression of an opinion of the witness. She may have known the fact about which she testified. But, however, if this evidence was inadmissible, the appellant is in no position to complain, because Mrs. Brecheen, in another part of her testimony, without objection, testified that John T. Field managed and controlled the 80 acres while they lived on it. This appears upon page 59 of the transcript.

The fifth assignment of error complains of the action of the trial court in permitting Mrs. Brecheen to testify where she was at the time that the citation was served upon her. She testified that she was in the cotton patch picking cotton on the 80 acres of land in controversy. The objection to this evidence was that it was immaterial and irrelevant. The evidence, if not admissible, was harmless. But we are inclined. to think it was admissible, as it tended to prove that Mrs. Brecheen was in possession of the land exercising acts of ownership over it at that time.

The evidence of Mrs. Brecheen, complained of under the sixth assignment of error, is practically to the effect as that complained of under appellant's third and fourth assignments of error; and, for the reasons given in passing upon those assignments, we think the evidence complained of was admissible.

The seventh assignment of error is to the effect that the court erred in refusing an instruction to the effect that if the deceased, John Field, entered into possession of the land by virtue of a lease contract, then the appellees would not be permitted to assert a parol gift until after Field had first surrendered possession as tenant. There was no necessity of such an instruction as this, because the court instructed the jury in terms that, if Field went into possession as tenant, or was holding as tenant of the appellants, then to find for the plaintiff.

The eighth assignment of error complains of the action of the trial court in refusing an instruction requested by the appellant to the effect that, if the jury found the land in controversy constituted a part of the homestead of the appellant and her insane husband at the time that such parol gift was made to John Field, then to find in favor of plaintiff. The homestead question, as here raised, is presented in several assignments of error. None of these assignments are well taken, for the reason that a homestead right in the land was not set up and pleaded by the appellant. The appellant brought her suit against the appellees in the form of trespass to try title. In answer thereto, the appellees specially pleaded their title, that is, a parol gift of the 80-acre tract in controversy, which it is claimed was a part of the homestead of the appellant. In response to this special plea of title, the appellant did not plead or set up any homestead right to this tract. Such being the condition of the pleadings, the homestead right was not in issue. (Field v. Rye, 24 Texas Civ. App., 273.)

The eleventh assignment of error complains of the action of the court in refusing to peremptorily instruct a verdict in favor of the plaintiff for the land in controversy, and thereafter submit to the jury the ques

tion of rents that appellant might be entitled to. Of course, the court correctly declined to give this instruction.

The twelfth assignment of error complains of the action of the trial court in refusing a charge requested by the appellant to the effect that, if John Field took possession of the 80-acre tract in controversy under a lease contract between him and the plaintiff, and that the improvements were put upon the land by reason of such contract, then to find in favor of the plaintiff. This charge was correctly refused for the reason that the court, in its general charge to the jury, instructed them that, if John Field went into possession of the land, or held the same, under a rent or lease contract, then to find in favor of the plaintiff.

The question presented under the thirteenth assignment of error was practically covered by the charge of the court. Furthermore, the expression "reasonable certainty," used in the charge refused, might be considered as placing upon the appellees a greater burden than the law required. If a parol gift is established by a preponderance of the evidence, coupled with acts of possession and improvements, that would be sufficient to establish the right in appellees, and it is saying too much to require this to be established with reasonable certainty.

The question of rents was properly presented by the main charge of the court, which, in effect, instructed the jury that, if they found for the plaintiff, then the plaintiff would be entitled to recover from Mrs. Brecheen the reasonable value of the rents and revenues arising from the use of the land. Therefore, there was no error in refusing the charge as set out under the fourteenth assignment of error.

The fifteenth assignment of error complains of the action of the trial court in permitting the defendants to prove by witness Montgomery that Field claimed the land upon which he lived during his lifetime, because it is insisted that this testimony was self-serving and hearsay, and called for the opinion of the witness, and was irrelevant and immaterial. The reasons given in a previous part of this opinion, in passing upon similar evidence, applies to this assignment.

The sixteenth assignment of error complains that the court erred in refusing plaintiff a new trial on the ground that the verdict is contrary to the law and the evidence. This assignment is disposed of by our findings of fact.

Finding no error in the record, the judgment is affirmed.

Writ of error refused.

Affirmed.

C. H. ALEXANDER V. ANNIE B. MCGAFFEY.
Decided April 5, 1905.

1.-Pleading-Defects in Elevator-Causal Connection.

A petition alleging numerous defects negligently permitted in the machinery and operation of an elevator, by the fall of which plaintiff was injured, which alleged its fall to be occasioned by certain specified defects "and by the other negligences herein alleged" sufficiently asserted a causal connection between the accident and all the defects alleged to exist.

2.-Pleading-Injuries to Person.

Where injuries to the person for which recovery was sought are internal and invisible and incapable of specific description, general allegations as to their nature and extent may be good as against a special demurrer.

3.-Pleading-Demurrer-Harmless Error.

Where no evidence was introduced in support of an allegation as to special damages, error in overruling special exception to such allegation becomes harmless.

4. Remarks by Court.

A statement by the court in answer to an objection of defendant to the examination of a member of the jury panel on voir dire in the presence of the panel in regard to his knowledge of facts in the case, that the jury had sense enough not to consider that as evidence, was not prejudicial to defendant.

5.-Same-Bill of Exceptions.

A bill of exceptions to a remark of the court that certain testimony was immaterial should show that it was made in the hearing of the jury in order to require a consideration of alleged error therein.

6. Evidence-Change in Machinery After Accident.

A change in the rate at which an elevator was set to run was not a circumstance admissible in evidence as bearing on negligence in its operation, where such change was made some time after the accident and in connection with the substitution of electric for hydraulic power.

Appeal from the District Court of Dallas County. Tried below before Hon. Richard Morgan.

Finley, Knight & Harris, for appellant.-Grounds or acts of negligence, not alleged to have any casual connection with the injury complained of, are immaterial and irrelevant, and should be stricken under special exception directed against such allegations. 14 Ency. Pleading & Prac., p. 336; Texas, etc., Ry. Co. v. McCoy, 3 Texas Civ. App., 276; Miller v. Itasca Oil Co., 41 S. W. Rep., 366.

The pleading should have set forth with reasonable clearness and certainty the nature and extent of the injury alleged to have been suffered, and the allegations of the injuries alleged to have been sustained by appellee being general, vague and uncertain, the special exceptions challenging the sufficiency of such allegations should have been sustained. by the court and those portions of the pleadings stricken. City of Marshall v. McAllister, 18 Texas Civ. App., 160.

Where it is attempted to be alleged that special damage has been suffered in consequence of personal injuries, such special damage must be specially pleaded, and the allegations must be certain and specific.

Oriental v. Barclay, 16 Texas Civ. App., 211; Pecos & N. T. Ry. Co. v. Bowman, 78 S. W. Rep., 722; Texas Cent. Ry. Co. v. Burnett, 80 Texas, 538; Sedberry v. Verplanck, 31 S. W. Rep., 242; Knittel v. Schmidt, 16 Texas Civ. App., 10; Texas & Pac. Ry. Co. v. Bigham, 36 S. W. Rep., 1112.

The remarks of the court were wholly gratuitous, discourteous, and calculated to prejudice the jurors against counsel for appellant, and thereby cripple their efforts in behalf of appellant in the defense of the suit, and therefore prejudicial and hurtful to appellant in the trial of the cause. 16 Am. & Eng. Ency. of Law (old ed.), 522; 21 Ency. Pl. and Prac., 974; McDuff v. Detroit Evening Journal, 47 N. W. Rep., 671; Williams v. West Bay City, 78 N. W. Rep., 328; Walker v. Coleman, 40 Pac. Rep., 641; Cone v. Citizens' Bank, 46 Pac. Rep., 415.

Competent evidence tending to prove a fact from which any fair inference or presumption may arise affecting a material issue in the case should be admitted to the jury as material testimony. Kellogg v. McCabe, 92 Texas, 201; Taylor v. Ferguson, 87 Texas, 5; Armandaiz v. Stillman, 67 Texas, 462; Wells v. Fairbank, 5 Texas, 582; Goldman v. Blum, 58 Texas, 641; Sledge v. Rayborn, 3 C. A. (Wilson), par. 304; Dovie v. Terrill, 63 Texas, 107; Galveston, H. & S. A. Ry. Co. v. Matula, 79 Texas, 580; Mutual Benefit Assn. v. Stapp, 77 Texas, 525; Burrell v. State, 18 Texas, 734.

The judge trying a case had no right to comment in the hearing of the jury upon the weight or effect of the evidence, and the remarks of the judge here complained of were directed at the effect and weight of testimony upon a material phase of the defense. Darrow v. Pierce, 51 N. W. Rep., 813; People v. Hare, 24 N. W. Rep., 843; Cross v. Tyrone Mfg. Co., 15 Atl. Rep., 643; State v. Philpot, 66 N. W. Rep., 732.

Gilbert H. Irish and Marcus M. Parks, for appellee. The court properly overruled special exceptions numbers 2 and 3 contained in appellant's amended original answer, because those special exceptions were based upon the proposition alone that the negligence alleged against appellant was not alleged to have caused or contributed to cause the accident complained of.

Appellee having alleged in her petition that she was a passenger on defendant's elevator; that the elevator fell, and that she was thereby injured, the law presumed negligence on the part of the defendants to the extent of making a prima facie case for the plaintiff, and it was not necessary for the plaintiff to make any further allegations of negligence, and the fact that she did so could not be prejudicial to appellant. Mitchell v. Marker, 62 Fed. Rep., 139; Treadwell v. Whittier, 80 Cal., 574; Kentucky Hotel Co. v. Camp, 30 S. W. Rep., 1010; Goodsell v. Taylor, 41 Minn., 209, 42 N. W. Rep., 873; Lee v. Knapp & Co., 55 Mo. App., 390; McCormick Harv. Mach. Co. v. Burandt, 136 Ill., 170; Southern Build. & Loan Assn. v. Lawson, 37 S. W. Rep., 86.

An injury which is visible and open to common observation may be discovered and tested easily, and should be described reasonably. But the internal and invisible ailments which are only inferred from scientific deduction, and on which there is always room for some difference of opinion, can not be held to so close a rule. International & G. N.

Ry. Co. v. Gready, 11 Texas Ct. Rep., 252; Gulf, C. & S. F. Ry. Co. v. Mannewitz, 8 S. W. Rep., 66; International & G. N. Ry. Co. v. Pina, 8 Texas Ct. Rep., 972; Missouri Pac. Ry. Co. v. Mitchell, 72 Texas, 171; Missouri, K. & T. Ry. Co. v. Edling, 18 Texas Civ. App., 171; Texas & Pac. Ry. Co. v. Curry, 64 Texas, 85; Campbell, Receiver, v. Cook, 86 Texas, 630; Tyson v. Booth, 100 Mass., 258.

If all the injuries set out in the petition were not sufficiently alleged, still all the injuries alleged with reference to which there was any proof adduced were sufficiently alleged, and, if the court erred in overruling exceptions to segregated portions of the petition, the error was immaterial.

Proof of the fact that plaintiff was a passenger upon the elevator at the time of the accident, and that the elevator fell with her, made a prima facie case of negligence, and raised a presumption of negligence as a matter of fact against appellant as to the efficiency of the machinery and the competency of the servants connected with the operation of the elevator, whether the defects had been alleged by plaintiff or not, and a case will not be reversed for refusing charges asked when a finding by the jury predicated upon them in favor of the party asking them could not be sustained under any view of the law of the case which could be taken of it under the evidence, and the charges requested being instructions as opposed to that presumption, they were not only improper as being upon the weight of the evidence, but could have served no useful purpose. Fordyce v. Chancy, 21 S. W. Rep., 181; Texas & P. Ry. Co. v. Levine, 29 S. W. Rep., 466; Mexican Cent. Ry. Co. v. Lauricella, 28 S. W. Rep., 277; Mitchell v. Marker, 62 Fed. Rep., 139; Treadwell v. Whittier, 80 Cal., 574; Goodsell v. Taylor, 41 Minn., 209, 42 N. W. Rep., 873.

EIDSON, ASSOCIATE JUSTICE.-This was a suit brought by Annie B. McGaffey, through her next friend, Chas. N. McGaffey, against C. H. Alexander and C. H. Beauchamp, for damages on account of personal injuries alleged to have been sustained by Annie B. McGaffey while a passenger on an elevator owned and operated by appellant in an office building known as North Texas Building, situated on Main Street in the City of Dallas. Annie B. McGaffey, having become of age pending this suit, filed an amended petition by leave of the court on April 28, 1904, alleging that she had arrived at her majority, and dropped the name of her next friend from the petition. For cause of action she, in substance, alleged that she arrived at her majority on the 12th day of March, 1902; that defendants were common carriers of passengers by elevator in said building on the 13th day of December, 1901; that, on the date last aforesaid, the said elevator was neither safe nor reasonably safe, in this: that it was negligently and improperly constructed, without stops, brakes, resters, safeties or grabs to catch going up or down, and was generally constructed in an unsafe and unsubstantial way; that the defendants negligently and improperly permitted and allowed the said elevator and the pump, tanks and water power connected therewith to become out of repair, in this: that the elevator was run by power derived from a steam pump, tanks, cylinders, pistons and other mechanical devices whose condition controlled the