(after stating the facts as above). We do not agree that:
“There was not,” quoting from appellant’s brief, “sufficient evidence that the engineer knew of plaintiff’s danger, or could have known of same by ordinary care, and no evidence that the effect of increasing the speed of the train at that time would be negligence on the part of the engineer.”
It appeared that the train had stopped at a water tank to take water for the locomotive. It remained at the tank about five minutes. During that time appellee engaged in working on the hot box. He had brought with him from the caboose two iron rods and a three-gallon bucket containing grease and waste, to use in doing the work. While he was engaged at the work, the engineer, appel-lee testified, “came around and saw what he was doing.” The engineer’s position, when operating the engine, was on the right-hand side thereof. Appellee, while working on the hot box, was on the same side of the engine, and only 60 or 80 feet from it. From the facts recited we think the jury might have found that the engineer knew, or as a reasonably prudent person should have known, when he started the train, that appellee, as he, without contradiction, testified was true, had not completed, but was still engaged at, the work on the hot box.
We think it should be said from the record that the engineer knew that appellee’s place on the train was in the caboose, and that it would be necessary for him, carrying the bucket and iron rods, to board the train, and *303that he (the engineer) knew there was a bridge between the car appellee was working on and the caboose, which would prevent ap-pellee from going hack toward the caboose, and knew that there were a number of coal and flat cars loaded with scrap iron and lumber between the car appellee was working on and the caboose, which he would not be able, because of their character and the way they were loaded, to get upon as they passed, and therefore knew that it would be necessary for appellee to wait where he was and endeavor to get aboard one of the box ears or the caboose following them, after it crossed over the bridge. The jury, we think, might have found that the engineer, knowing those facts, as a reasonably prudent man, should have contemplated that appellee might attempt to get aboard the train as he did, and, contemplating that he might make such an attempt, should not have run the train as fast as he did (at the rate of 12 or 14 miles ah hour), and snould not, in operating it, have caused it to give a sudden jerk, as appellee testified it did when he grasped the grabiron to get aboard of it.
Whether it should be said, with reference to the act of Congress of 1908, known as the “Employers’ Liability Act” (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), which was applicable to the case, that appellee was not entitled to recover, because it appeared from the evidence, as appellant insists it did, that the risk appellee incurred in attempting to get on the train as he did was one he assumed, need not be determined, in view of the fact that appellant in its pleadings did not claim that he had assumed the risk. “Assumption of risk,” to be available as a defense, must be pleaded. Price v. Oil Co., 41 Tex. Civ. App. 47, 90 S. W. 717; Railway Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 206; Railway Co. v. Harris, 95 Tex. 316, 67 S. W. 315.
Appellant claimed that in June, 1913, it paid to appellee $300, which he accepted as a full settlement of his claim against it for damages for the injury he suffered. In support of its contention appellant offered, and the court admitted as evidence, a written instrument, signed by appellee, in which it was recited that in consideration of $300 paid to him by appellant he had released all claim he had against it for damages for the injury he had sustained. Appellee admitted that appellant had paid him the $300 as stated in the writing, but contended that as a further consideration for the release it had agreed that he might continue in its service as a brakeman “just as if he had never been injured.” He further contended that appellant thereaft-erwards refused to comply with its agreement to continue him in its service as a brakeman, and that he thereupon returned to appellant the $300 it had paid to him, notifying it that he did so because of its refusal to comply with that part of its agreement, and that appellant accepted and ever afterwards retained said $300.
In making the settlement in question appellant was represented by one Saling, a clerk in its claim department at Dallas. Appellee testified that he told Saling that appellant’s trainmaster at Marshall had offered, as a settlement of his claim, to have the company pay him half time and let him go back to work, but that he declined the offer because he thought he should have full time. Saling replied that “he did not know what they would do, whether they would give him any better than half time or not,” but that he would take up the matter with appellant’s legal department. Saling, appellee said, “seemed very busy that morning,” and wanted appellee to come back in the afternoon. Appellee then told Saling he was in a hurry to get back to Marshall and go to work. In the afternoon Saling told him, appellee testified, “they would not agree to give him straight time, but, if he was in a hurry to get back to work, he [Saling] would make it a lump sum of. $300, and he could come on back to work.” Appellee then “spoke about having any trouble in getting back to work,” and Saling replied “that they would attend to that.” Appellee testified that Saling then paid him the $300 and gave him a letter, addressed either to Trainmaster Brown or his superior, and that when he got back to Marshall he delivered the letter to Brown and offered to go back to work. Appellee further testified that Brown was angry because he had made the settlement with appellant’s Dallas office, instead of with him, and refused to put him to work, and that he (appellee) thereupon returned the $300 to appellant, with a letter advising it he did so because of such 'refusal, and then instituted the suit resulting in the judgment from which this appeal is prosecuted. Appellant did not deny that it had received the $300 returned to it by appellee, and did not pretend in either its pleading or evidence that after receiving same it regarded the money otherwise than its own. Saling testified that, in the negotiations between him and appellee resulting in the settlement, the latter said nothing about going back to work, but he further testified:
“I thought he was going back to work. I assumed that he was. We don’t refuse to employ a man because he gets hurt. * * * I thought Mr. Prothro was expecting to go to work. The reason I know he did not mention it to me is because, when they mention it, I tell them right off I have nothing to do with their going hack to work.”
We think the testimony referred to was sufficient to support a finding that it was understood and agreed between Saling and ap-pellee that the latter was to be paid $300 and to be retained by appellant in its service as a brakeman as if he had not been injured, as the consideration for a release by him of his claim for damages against it, and a finding that appellant had refused to comply with the under *304taking, so far as it was to continue appellee in its service as a brakeman.
Appellant, however, insists that the testimony relied upon to show that Saling agreed that appellee should be retained in its service was inadmissible, because its effect was to vary the terms of the settlement as evidenced by the writing, and further insists that if Saling so agreed it did not create an obligation on its part to retain appellee as a brakeman, because it did not appear from the testimony that appellee had bound himself to work for it — in other words, that the agreement, for lack of mutuality, was not binding on it.
As to the first of the two contentions, it is clear that the testimony referred to was admissible under the allegations in appellee’s supplemental petition, charging that he was induced to execute the release as the result of “fraudulent statements and representations made to him to the effect that he would be given said job or employment, and would be permitted to enjoy the privilege of working for the said defendant railway company just as if no injury had been received by him,” etc. And, in the absence of such allegations on the part of appellee, appellant should not be heard, on the ground stated, to complain here that the testimony was inadmissible, because it is not made to appear that he objected to its admission when it was offered in the court below.
As to the other of said contentions, it should be noted that appellee’s suit was not to enforce a performance by appellant of its undertaking under the agreement, but was to recover against it as he would have been entitled to in the absence of any agreement for a settlement of his claim. In other words, appellee, having returned to appellant the money it had paid him, was in the attitude by his suit of treating the agreement as rescinded, and therefore no longer binding on either him or appellant. In accepting and retaining the money, without in any way questioning appellee’s right to so rescind the contract, we think appellant should be held to have acquiesced in appellee’s claim of a right to rescind it. As stated before, there is nothing in the record showing that appellant did not claim the money as its own after same was returned to it by appellee. On the contrary, by retaining it as it did, we think ap-XDeilant was in the attitude of claiming the money as its own, and that it should not have been heard to say, so long as it remained in that attitude, that appellee was not entitled to treat the agreement as no longer in force.
It is insisted that the verdict was for a sum in excess of the damages shown. As the sum found does not of itself indicate, and as there is nothing in the record that does indi-1 cate, that the jury, in determining the sum, were influenced by anything except their sense of duty, the contention is overruled.
The judgment is affirmed.