The injury being permanent, plaintiff was entitled to recover all damages, past, present, and prospective, proximately caused by the defendant, based upon the values existing immediately before and after the injury. Sinclair Oil Gas Co. v. Allen, 143 Okla. 290, 288 P. 981; St. Louis, B. M. Ry. Co. v. West, 62 Tex. Civ. App. 553, 131 S.W. 839; Zuidema v. Sanitary District of Chicago, 223 Ill. App. 138; Houston Belt Terminal Ry. Co. v. Daidone, Tex.Civ. App., 62 S.W.2d 524. The plaintiff is thus made whole.
(a) The following are authorities on the proposition that this affirmative charge should have been given: Wichita Falls Traction Co. v. Adams, 107 Tex. 612; Progressive Lbr. Co., v. M. E.T. Ry. Co., 106 Tex. 12; E.P. S.W. Ry. Co. v. Foth, 101 Tex. 133, 144; G.H. S.A. Ry. Co. v. Washington, 94 Tex. 510; Yellow Pine Oil Co. v. Noble, 101 Tex. 125; S.L. S.W. Ry. Co. v. Johnson, 100 Tex. 237; S.L. S.W. Ry. Co. v. Hall, 98 Tex. 480, 488; G.C. S.F. Ry. Co. v. Johnson, 98 Tex. 76. (b) The following are authorities on the proposition that where permanent injuries are involved, an affirmative instruction should be given: Texas Trunk Ry. Co. v. Ayers, 83 Tex. 268 [ 83 Tex. 268]; St. Louis B. M. Ry. Co. v. West, 131 S.W. 839; Texas Traction Co. v. Fearris, 163 S.W. 1060. The question has been so often passed upon that it has become a settled rule.
It is not what Edwards could or would not have reasonably foreseen when he took the route he did take, but the test would be whether, as a reasonably prudent man, in the exercise of ordinary care, and in view of all the facts and circumstances, he would have anticipated that some injury might occur by reason of his negligence. Railway Co. v. Turner, 138 S.W. 1126; Railway Co. v. Sein, 89 Tex. 66, 33 S.W. 215. 558; Poindexter v. Receivers, 101 Tex. 323. 107 S.W. 42: Henry v. McCown, 140 S.W. 1172; Railway Co. v. West, 62 Tex. Civ. App. 553, 131 S.W. 841; Eames v. Railway Co., 63 Tex. 660; Railway Co. v. Mussette, 86 Tex. 719, 26 S.W. 1075, 24 L.R.A. 642; Railway Co. v. Reed, 88 Tex. 448, 31 S.W. 1058: Washington v. Railway Co., 90 Tex. 320, 38 S.W. 764; Lipscomb v. Railway Co., 95 Tex. 20, 64 S.W. 923, 55 L.R.A. 869, 93 Am.St.Rep. 804; Railway Co. v. Kellogg. 94 U.S. 469, 24 L.Ed. 256; Cohen v. Rittimann, 139 S.W. 61; Butler v. Gulf Pipe Line Co., 144 S.W. 342; Railway Co. v. Green, 141 S.W. 346; Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S.W. 134; Hugo v. Paiz, 128 S.W. 917; Railway Co. v. Smith, 148 S.W. 821; Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 475; Railway Co. v. Cabell, 161 S.W. 1083; Tel, Co. v. Long, 183 S.W. 428; Cyc. vol. 29, p. 495; Am. Eng. Enc. of Law, vol. 8, pp. 567, 571, 572, 579, 581; Street on Personal Injuries, pp. 62, 63, 79, 84. Complaint is made in the fifteenth assignment of error of the failure of the trial court to submit the following special instruction:
Having participated in having these issues submitted to the jury, he cannot be heard to say there was no evidence to justify their submission. I. G. N. Ry. Co. v. Walker, 162 S.W. 921; Poindexter v. Kirby Lumber Co., 101 Tex. 326, 107 S.W. 42; St. Louis, B. M. Ry. Co. v. West, 131 S.W. 841; Alamo Dressed Beef Co. v. Yeargan, 123 S.W. 723. But we are of the opinion that appellant's contention would be without merit even had he requested a peremptory instruction, and assigned error upon the failure of the court to give it, for the evidence is conflicting upon the points relied upon by him. The main issue in this case, as made by the pleadings, was whether appellant accepted the policy and agreed to pay the premium.
In a well-prepared brief, appellees' learned counsel attempts to maintain the proposition that the contract sued on was merely an obligation on Davis' part to furnish appellant water for irrigation purposes, but we cannot concur in that contention, but agree with appellant's counsel that the contract called for a permanent and extensive improvement of his land, and in that class of cases the weight of authority holds that difference between the value of the property as it would be if the contract had been performed, and as it is in consequence of the failure to fulfill it, is the correct measure of damages. 2 Sutherland on Damages, p. 492; 40 Cyc. 686, 687; Louisville Elec. Ry. Co. v. Whipp, 118 Ky. 121, 80 S.W. 507; Rosenthal v. Taylor B. H. Ry. Co., 79 Tex. 325, 15 S.W. 268; G. H. S. A. Ry. Co. v. Haas, 37 S.W. 167; S. A. A. P. Ry. Co. v. Mohl, 37 S.W. 22; Owens v. Railway Co., 67 Tex. 682, 4 S.W. 593; St. L. B. M. Ry. Co. v. West, 131 S.W. 839; Fallon v. Amond, 153 Iowa 504, 133 N.W. 771; Fin Feather Club v. Thomas, 138 S.W. 150. We quote as follows from Sutherland on Damages, cited above: "This rule of rental value for delay, however, has been departed from where the delay would be indefinitely continuous, as where the execution of the contract has been abandoned; then the difference between the value of the property as it would be if the contract had been performed, and as it is in consequence of the failure to fulfill it. Where a railroad company was bound to build and maintain perpetually a side track in front of certain lots owned by the covenantee, on a breach of this covenant by abandonment, after the track had been laid, it was held that the proper measure of damages was the difference in value of the plaintiff's lots with the side track operated and not operated, together with interest thereon from the abandonment up to the date of the trial, or not, at the discretion of the jury.
One of the requested charges was copied bodily into the charge of the court, clearly indicating that the special charges were requested before the charge of the court was given. Appellant, having invited the charge submitting the question of contributory negligence to the jury, cannot now be heard to attack such submission. Poindexter v. Receivers, 101 Tex. 322, 107 S.W. 42; Alamo Beef Co. v. Yeargan, 123 S.W. 721; Railway v. West, 131 S.W. 839; Railway v. Rodriguez, 133 S.W. 690. The evidence showed that appellee was running his car along a street in the city of San Antonio at the legal rate of speed, and was negligently struck by a locomotive belonging to appellant, which was running at a high rate of speed.
and discretion and experience would not have done, and that such act caused or contributed to his injury," to find for defendant, and by special charge No. 4, given at appellant's request, the jury were instructed, in effect, that if the plaintiff consented for her son to work about defendant's machinery, or consented for her son, Phillip Gathings, to find him such employment, etc., then the plaintiff would be estopped to recover anything in this suit by reason of any lack of experience or immaturity of age of her son. It is well settled by the decisions of this state that an appellant cannot complain of an erroneous instruction where he requested an instruction embodying the same error. If he has requested a charge submitting an issue to the jury, he cannot on appeal claim that the evidence did not warrant the submission of such issue. Railway Co. v. Sein, 89 Tex. 63, 33 S.W. 215, 558; Poindexter v. Kirby Lumber Co., 101 Tex. 322, 107 S.W. 42; Railway Co. v. Rodriquez, 133 S.W. 690; Railway Co. v. West, 131 S.W. 839; Alamo Oil Refining Co. v. Curvier, 136 S.W. 1132; Henry et al. v. McCown, 140 S.W. 1170. Nor do we think the court erred in ignoring the question of the emancipation of plaintiffs son in the main charge, and in refusing to give appellant's special charge No. 6, seeking a submission of that question as an issue of fact for the determination of the jury.
It has now become the settled law in this state. Poindexter v. Receiver Kirby Lumber Co., 101 Tex. 322, 107 S.W. 42; Alamo Dressed Beef Co. v. Yeargan, 123 S.W. 721; Railway v. West, 131 S.W. 839; Railway v. Rodriguez, 133 S.W. 690; Alamo Oil Co. v. Curvier, 136 S.W. 1132. The employé could not, under the facts of this case, have been guilty of contributory negligence, because it was uncontroverted that he was doing exactly what he was ordered by the master to do, and in the manner indicated by him. He did not, under the facts, assume the risk, because the work he was doing was not ordinarily incident to his employment.