Seeley v. Central Vermont Ry. Co., 88 Vt. 178, 183, 92 A. 28; Landry v. Hubert, 100 Vt. 268, 280, 137 A. 97; Milligan, Admr. v. Clogston, 100 Vt. 455, 459, 138 A. 739. This rule requires one who would avail himself of the "last clear chance" doctrine to allege the facts which gave rise to the duty on the part of the defendant to act for his protection after the latter discovered, or ought to have discovered, the peril into which the former's negligence had led him. 11 C.J. 282; White's Suppl. Thomp. Neg., § 7466; Hawkins v. Missouri, etc., R.R. Co., 36 Tex. Civ. App. 633, 83 S.W. 52; Vetter v. Traction Co., 13 Oh. Cir. Ct. (N.S.) 35; Emmons v. Pacific Co., 97 Or. 263, 191 P. 333; Stewart v. Portland R.L. P. Co., 58 Or. 377, 114 P. 936. See, also, Drown v. Northern Ohio Trac. Co., 76 Ohio St. 234, 81 N.E. 326, 10 L.R.A. (N.S.) 421, 118 A.S.R. 844, 850.
Judgment for plaintiffs, and defendant appeals. Mr. F.L. Willcox, for appellant, cites: As to damagesfrom delay of carrier: 15 Ga. App. 751; Hutchinson Carriers, sec. 651; 109 Mo. App. 567; 83 S.W. 52; 72 S.C. 398; 179 U.S. 658; 226 U.S. 491. Mr. P.H. Arrowsmith, for respondent, cites: Barnes Interstate Commerce, sec. 159; 2 I.C.C.R. 594; 2 A. E. Enc. of L. 841; 88 S.C. 172; 78 S.C. 8; 88 Am. St. Rep. 74. Excuses for delay: 91 S.C. 61; 136 Mo. App. 404; 88 S.W. 417; 53 S.W. 444; 114 Mo. App. 488; 28 Mont. 297; 235 Penn. 232; 150 S.W. 1188.
There was no evidence that Robinson was intoxicated to such an extent as to render him helpless or incapable of taking care of himself, or incapable of appreciating the danger to himself in occupying a position on the platform of the car, and, unless he was intoxicated to such an extent as to render him incapable of realizing the danger of his position, the danger was apparent to him as it was to the employees of the carrier, and they owed him no duty to prevent him from assuming the position he did. Ebert v. Gulf, C. S.F. Ry., 49 S.W. 1105; Hawkins v. Railroad, 83 S.W. 52; Walling v. Trinity B V. Ry. Co., 106 S.W. 417; Houston T.C. Ry. Co. v. O'Donnell, 92 S.W. 409; Paris G.N. Rd. Co. v. Robinson, 114 S.W. 658. The extent of Robinson's intoxication and his capacity or incapacity at the time of his injury was a matter of fact to be submitted to the jury, and there was evidence that he was not at any time incapable of caring for himself.
Also, the appellant opened the matter by his attorney's interrogation about his prior disability. Cheshire v. Dow Chemical Company et al., Tex.Civ.App., 319 S.W.2d 358, n. r. e.; Griggs Furniture Company v. Bufkin et ux., Tex.Civ.App., 348 S.W.2d 867, writ ref., n. r. e. Also, see Hawkins v. Missouri, K. T. Ry. Co. of Texas, 36 Tex. Civ. App. 633, 83 S.W. 52, no writ history. Appellant's fifth point of error is that the court excluded the testimony of R. F. Parker, the foreman for King Transport Company and the person in charge of the convoy of which the appellant was a member at the time of his injuries.
Another point of error is of similar character, though with respect to the defendant's offer of evidence and its denial. In the case of Hawkins v. Missouri, K. & T. Ry. Co. of Texas, 1904, 36 Tex.Civ.App. 633, 83 S.W. 52, the trial court in a personal injury case had permitted the defendant, who obtained judgment, to bring out on cross-examination on pleadings of general denial the fact that plaintiff was drawing a pension from the United States Government of $12.00 per month. The court held that such action of the trial court did not constitute error.
This having been charged, the pleading is sufficient. San Antonio A. P. Ry. v. Green, 20 Tex. Civ. App. 5, 49 S.W. 670; Hawkins v. M., K. T. Ry. Co., 36 Tex. Civ. App. 633, 83 S.W. 52; Baker v. Shafter (Tex.Com.App.) 231 S.W. 349; Stevens v. Wabash Ry. Co. (Mo.App.) 14 S.W.2d 506. It is only necessary for a party to prove sufficient facts to entitle him to recover, and he need not prove everything alleged.