author: TALIAFERRO, J.

text:
    J. R. WATKINS MEDICAL CO. v. JOHNSON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 26, 1913.
    Rehearing Denied Jan. 7, 1914.)
    1. Monopolies (§ 17*) — Contracts — Restraint oe Trade.
    A contract to purchase patent medicines from plaintiff at wholesale to be sold at the regular retail prices in a certain part of the county except within cities, which also provided that the buyer would sell no other goods during the term of contract except those procured from plaintiff and would sell them only to customers at their residences in the district prescribed, violated the Anti-Trust Act (Rev. Civ. St. 1911, arts. 7796, 7798); being an attempt to combine the capital, skill, etc., of the parties to maintain a standard of prices and prevent competition in the territory fixed.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. § 17.]
    2. Commerce (§ 40) — “Interstate Commerce.”
    The sale of goods by a citizen of one state to a citizen of another state which are to be shipped from one to the other is “interstate commerce,” though the sale is made by the seller’s agent in the buyer’s state; “interstate commerce” consisting of intercourse or traffic between citizens of different states.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.

    For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]
    3. Commerce (§ 57) — Anti-Trust Act — Interstate Commerce.
    The fact that the sale of goods by a citizen of another state to a citizen of Texas under a contract which violated the Anti-Trust Act (Rev. Civ. St. 1911, arts. 7796, 7798) also constituted interstate commerce would not prevent the Anti-Trust Act from applying to invalidate the contract and .prevent a recovery thereon.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 72-76, 88, 90, 92-102; Dec. Dig. § 57.]
    4. Monopolies (§ 21) — Contract — Invalidity.
    The fact that a part of the account between the parties was due, and stated when a contract was made between them which was invalid under the Anti-Trust Act (Rev. Civ. St. 1911, arts. 7796, 7798), and which stipulates for the payment of the account stated, would not save such part of the contract from being illegal and unenforceable so as to permit recovery of such amount; all items of the illegal contract being invalid.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.]
    Appeal from District Court, De Witt County ; John M. Green, Judge.
    Action by the J. R, Watkins Medical Company against W. E. Johnson and others. From a judgment dismissing the action, plaintiff appeals.
    Affirmed.
    Sam C. Lackey, of Cuero, and Tawney, Smith & Tawney, of Winona, Minn., and McFarland & Lewright, of San Antonio, for appellant. Davidson & Bailey and R. J. Waldeck, all of Cuero, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

This suit was brought by the J. R. Watkins Medical Company, a private corporation, in the district court of De Witt county, Tex., against W. E. Johnson, as principal debtor, and William Thomas, Chas. G. Breeden, J. K. Irwin, and William Lienhard, as sureties, for a balance due and owing for medicines, extracts, etc., furnished by plaintiff to defendant Johnson on a written contract between plaintiff and all of tbe defendants, by tbe terms of wbicb said Tbomas, Breeden, Irwin, and Lienbard, agreed to guarantee payment to plaintiff for said goods. Defendants Tbomas, Breeden, Irwin, and Lienbard filed a general demurrer and special exceptions, by wbicb they insist that said contract is illegal and unenforceable because violative of tbe anti-trust laws of Texas. These demurrers were sustained, and tbe plaintiff refused to amend its petition, whereupon tbe cause was dismissed •by tbe court.

By tbe contract, stripped of its verbiage, appellant agreed to furnish and deliver to Johnson, f. o. b. tbe cars at Winona, Minn., ■its medicines at tbe usual wholesale prices, less certain discounts, to be sold by him at ■the regular retail prices in that part of De Witt county, Tex., lying west of tbe Guadalupe river, except in incorporated municipalities. It was agreed by Johnson that be would sell no other goods or articles during tbe term of tbe contract except those purchased by him from appellant, and be was to sell them only to customers at their residences in tbe prescribed district. Johnson agreed to make weekly reports of sales made by him and to pay for tbe goods so furnished him at such weekly periods or in cash within ten days from date of invoice, in wbicb latter event be was to be allowed a discount. Any goods unsold by Johnson appellant agreed to take back, f. o. b. cars at Winona, if tendered in as good condition as when shipped. It was further provided that Johnson should have no right to incur any “debt, obligation or liability of any kind” on account of appellant, and that appellant should in no wise share in tbe expenses or profit of Johnson’s ventures, and that in event of Johnson’s default in any of tbe terms of tbe contract appellant could terminate same at once by giving written notice by mail.

Tbe following clause is inserted into tbe contract: “Tbe party of the second part (Johnson) hereby promises and agrees to pay to said company, at Winona, Minnesota, during tbe term of this agreement, payment of wbicb is hereby extended by said company (appellant) to such time, tbe amount due it for medicines, extracts and other articles, sold and delivered to him under a former agreement.”

Appended to tbe contract is tbe following .agreement signed by tbe appellees:

“In consideration of tbe execution and delivery of tbe foregoing agreement by tbe J. B. Watkins Medical Company, and tbe sale and delivery by it to the party of the second part, of its medicines, extracts and other articles, and the extension of the time of payment of the amount due from him to said company, as therein provided, we, tbe undersigned, jointly and severally guarantee full and complete payment of each and all of tbe same, at tbe time and place and in tbe manner in said agreement provided.

W. Tbomas, Stockman, Cuero, Texas.

Chas. G. Breeden, Merchant, Cuero, Texas.

J. IC Irwin, Farmer, Cuero, Texas.

Wm. Lienbard, Farmer, Cuero, Texas.”

It is not contended by appellants that this was a contract of agency, and we will not discuss that aspect of tbe case, but treat it as a contract for tbe sale of goods.

The first proposition under appellant’s first assignment of error is as follows: “Tbe contract between plaintiff and defendants, as fully described in tbe petition, constituted and was a part of interstate commerce, for wbicb reason tbe anti-trust laws of tbe state of Texas bad no application thereto.”

Tbe second proposition is as follows: “Tbe contract sued upon by plaintiff, and involved herein, did not violate the laws of the United States, regulating interstate commerce, more especially that which is commonly known as tbe Sherman Anti-Trust Law.”

In considering these propositions, we must proceed upon the theory that but one question is to be considered; that is, whether tbe court a quo bad jurisdiction to render tbe judgment herein. This for tbe reason that we decide, in tbe first place, that tbe contract in question is violative of the antitrust laws of Texas, and, in the second place, that tbe sale of tbe goods by the appellant to Johnson was interstate commerce.

The contract is violative of title 130, c. 1, arts. 7796 and 7798, R. S. 1911, it clearly showing by its terms an intention to combine the capital, skill, and acts of tbe parties to fix and maintain a standard of prices upon a certain commodity and to prevent competition in a given territory. Fuqua v. Pabst Brewing Go., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; T. & P. Coal Go. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

That tbe sale of the goods by appellant to appellee was interstate commerce cannot be doubted. “Interstate commerce” consists of intercourse or traffic between citizens of different states. Barnhard Bros. v. Morrison, 87 S. W. 376; Houston & Galveston Navigation Co. v. Dwyer, 29 Tex. 376. And the sale of goods by a citizen in one state to a citizen in another state, tbe goods to be shipped from one to the other, is “interstate commerce,” even when tbe sale is made by an agent of tbe seller in tbe state of tbe buyer. Bateman v. Milling Co., 1 Tex. Civ. App. 90, 20 S. W. 931; McCall v. Stiff, 142 S. W. 659.

Does it follow from these conclusions that tbe contract between tbe barties to this suit falls only under tbe interstate commerce regulations, and that it is not governed by tbe anti-trust laws of the state of Texas ? We recognize tbe difficulty of this question and enter upon its discussion with some diffidence. There are two lines of decisions in this state which seem to create a conflict upon the question which we have been unable fully to reconcile. The leading case, of Fuqua v. Pabst Brewing Association, seems to us to be the most sound and well considered of the decisions upon the subject, and we believe that most of the cases are entirely consistent with the doctrine as there announced by Mr. Justice Denman. That was a case very similar in its nature to the one before us. The brewing company had shipped quantities of beer to appellant under a contract similar in many respects to the one in this case. Suit was filed upon an account accrued under the contract, against the sureties of the purchasers. The trial court gave judgment upon the account which was affirmed by the Court of Civil Appeals. The question of the validity of the contract under the anti-trust statutes of Texas was not raised until the petition for writ of error was presented to the Supreme Court. Yet the Supreme Court considered the question and passed upon it as fundamental and determinative of the whole case. In disposing of the case, the court said: “In the celebrated ‘Original Package Case’ of Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. 681, 34 L. Ed. 128], the Supreme Court of the United States held that beer, imported by a resident of one state into another for sale, retained its character as an article of interstate commerce, exempt from regulation by the statutes of such other state, until disposed of by such nonresident importer in such other state in the original packages in which it was imported. As we understand this and other decisions of that learned court, such articles lose such character and exemption, and so ‘become part of the common mass of property within a state as to be subject to its unimpeded control,’ when so disposed of by such nonresident importer or when offered for sale by him in broken packages or by retail. It is clear then that, when any shipment of beer was delivered under the contract by the company to Kingsbury at Amarillo, the title thereby vesting in him as we have seen above, the same ceased to be an article of interstate commerce, and, in so far as the contract dealt with it thereafter, it was not a contract with reference to an article of in-> terstate commerce, and the clause of the Constitution above quoted does not prevent said statute from invalidating same. The case then comes to this: The parties contracted for the sale and purchase of beer to be transported from Milwaukee to Amarillo to be there delivered to Kingsbury and become his property. So far the transaction was interstate commerce and not subject to state regulation without the consent of Congress, nor did the statute undertake in any way to regulate or prohibit same. But the parties by the same contract voluntarily went further and so dealt with the subject, after it had ceased to be an article of interstate commerce, as to create a ‘trust,’ as above shown, in violation of the statute. A portion of the stipulations of the contract being lawful and the others unlawful,' the taint of illegality affects and destroys the whole. Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053. The commerce clause of the Constitution was not designed to protect the contractual rights of a person who thus voluntarily intermingles an otherwise legal interstate commerce transaction with an entirely local and unlawful one. We are therefore of the opinion that independent of congressional action the contract sued upon was void.” Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804; White Mfg. Co. v. Hertzberg, 51 S. W. 355. In the latter case Chief Justice Fly, in rendering the opinion of the court, said: “The sale and delivery to defendant in error may have been an interstate transaction; but, after the interstate portion of the transaction had ended, then the trust part of the contract arose. It was not the intention of this court to hold that the contract was in restraint of trade under the common law, but by reason of the laws of this state; and we think that intention was obvious from the Texas authorities cited in our former opinion.”

The following cases and some others are often cited as holding contrary to the Fuqua Case: Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; Albertype Co. v. Feist Co., 102 Tex. 219, 114 S. W. 791; Moroney Hdw. Co. v. Goodwin, 120 S. W. 1088; McCall v. Stiff Dry Goods Co., 142 S. W. 659; Eclipse Paint Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S. W. 532. Miller v. Goodman is not properly analogous. The only question there involved is the construction of articles 745 and 746, Revised Civil Statutes of 1895, which refer only to the limitation-upon the power of a foreign corporation to do business in Texas. “Interstate commerce” is defined, and the court says that the state has no authority over that class of business, but there the analogy ends. There was no contract charged to be against public policy or in violation of the state anti-trust laws, nor was the disposition of the goods after delivery in Texas involved. Albertype Co. v. Feist Co. seems upon first reading to be in conflict with Fuqua v. Brewing Co., supra; but a careful analysis will show that the court did not intend to overrule the Fuqua Case and that they are clearly distinguishable. In the Fuqua Case the parties sought to control the price and sale of the beer after the title thereto vested in the purchasers, as well as to deprive the buyer and seller of the right to deal with any other persons with reference to the same commodity in the same territory during the term of the contract. In the Feist Case no effort was made to control or limit the disposition of the goods “after they had ceased to be an article of interstate commerce,” but to bind, the seller to sell the same class of goods to no other person in the same territory for a limited time. The contract clearly shows that Feist & Co. were in no manner limited in their right to sell or to fix the price of the goods or in any manner to control or limit the free and unrestrained traffic in the goods sold after the title thereto vested in Feist & Co. The same can be said of the¡ case of Eclipse Paint Co. v. New Process Roofing Co. In that case the contract simply provided that the purchaser should have the exclusive right to handle the seller’s paints for a specific period, but made no effort to control the price, terms, or method of sale after title vested in the purchaser. The case of Moroney Hardware Co. v. Goodwin is not similar in its facts to this case. The contract indicated an unlawful combination in restraint of trade among dealers in certain wares outside of Texas, but the contract contained no limitation nor attempted restraint of trade or competition in such merchandise after it was delivered to the purchaser in Texas. The court broadly stated the doctrine in that case to be that interstate transactions are not subject to the antitrust laws of Texas, but that rule was not declared applicable to the ease under consideration. It seems that the case of McCall v. Stiff Dry Goods Co. is in conflict with our holding in this case, and, as we believe, with Fuqua v. Brewing Co., supra. In the former ease, a contract similar in form and made under much the same circumstances as the one now under consideration was declared without the operation of the anti-trust laws of Texas, because the transaction was interstate in its nature.

The reasoning and the conclusions of the court in the Fuqua Case are logical and convincing. That goods sold to a resident of Texas, shipped from a foreign state and delivered to the purchaser in Texas, free from any claim of title by the shipper, and sold or held for sale by the buyer as owner, become and are a part of the “common mass of property of the state” and subject to the laws thereof, seems too clear for controversy. To hold otherwise would be to enable parties so disposed to nullify the laws of Texas by the simple means of transporting the commodity to be used in an unlawful manner across the borders of our state. We think the Supreme Court, in Albertype v. Feist and Miller v. Goodman, supra, did not mean to disapprove of the doctrine laid down in the Fuqua Case. We see no distinction between the Fuqua Case and the one before us. All the elements are practically the same, and it must fall under the rule in the Fuqua Case, if that is the law of the state, and we believe it is the law.

Appellant’s first and second assignments of error are overruled.

By its third and fifth assignments of error appellant complains that the court did not allow it to recover the sum of $838.92 upon the account because that portion of the account was due and stated at the time the contract was made, and that appellees expressly agreed to pay that sum. This was a part of the contract and entitled to no higher consideration in the eyes of the law than other items of the account. As said by the court in Fuqua v. Brewing Co., supra, “A portion of the stipulations of the contract being lawful and the others unlawful, the taint of illegality affects and destroys the whole.” Edwards County v. Jennings, 89 Tex-. 618, 35 S.. W. 1053. The contract in question being without the pale of the law and void, the courts of the state will not recognize or enforce it.

There is no merit in the fourth and sixth assignments of error, and they are overruled.

The judgment of the lower court is affirmed.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ALLEN et al. v. KITTRELL et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Receivers (§ 96) — Contracts—Personal Liability.
    A receiver may make contracts without the sanction of the court, binding himself personally to another party for debts incurred by himself expressly or by accepting services which he is bound to perform and which otherwise would be a charge against the property.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 176-180; Dec. Dig. § 96.]
    2. Receivers (§ 96) — Contracts—Personal Liability.
    Where, though the receiver of the property of two persons knew that the wife of one of them was performing services for the benefit of the estate, and at times gave her instructions concerning the performance of such services, he did not agree that they should be compensated from the amount which it was subsequently agreed should be paid him for services, he was not liable, as he had reason to believe that she was performing such services to save the expense to the receivership proceeding.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 176-180.; Dec. Dig. § 96.J
    Appeal from District Court, Plarris County; Chas. E. Ashe, Judge.
    Action by Mrs. Claire Allen and others against Norman G. Kittrell, Jr., and others. From a judgment for defendants, plaintiffs
    appeal.
    Affirmed.
    A. C. Allen, of Hillsboro, for appellants. Atkinson & Atkinson, Norman G. Kittrell, Sr., and H. Masterson, all of Houston, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This was an action in the district court of Harris county, Tex., by Claire E. Allen, joined by her husband, A. C. Allen, and Margaret E. Allen, by plea adopting allegations of petition against Norman G. Kittrell, Jr. The petition alleged that said Kittrell was receiver of the estate of Margaret E. and A. C. Allen in a receivership in said court, being cause 46,812. That, as such receiver, there came into his charge certain property in Houston, Harris county, Tex., and in other counties in Texas. That owing to the condition and situation of said property in Houston, about all the receiver had to do would have been to visit the properties, receive rents from tenants, etc., from time to time. That, as to the Houston property, the services of the receiver were only of comparatively small value. That the properties in Navarro and Erath counties needed no attention, save to receive a small rent per annum remitted by tenants.- That the only property requiring constant care and attention was the farm property in Bosque county,. Tex., which was more than three-fourths of the trouble, and required more than three-fourths of the time to look after as all of the balance of said property in receivership. That in connection with said farm were valuable live stock in the way of horses, mules, colts, and high grade cattle. That said farm is situated on part of the tract of land comprising about 5,000 acres, divided by different fences into various farms and pastures. That parts of said land were rented for corn and cotton for one-half of what should be made, and the balance of the land was used for hay, meadow and grazing purposes. That said Kittrell lives in Houston, and during the pendency of this receivership has not resided at or near said property in Bosque county, but has remained in Houston practicing law and acting as receiver for at least one other large and valuable estate, to wit, the estate of Mrs. - Scales, and has visited said Bosque county property about once a month for three or four hours on each occasion. That Mrs. Claire E. Allen was employed by said Kittrell as his assistant declared on in two separate -and distinct counts; the first that she was employed by him to look after the Bosque county business at $85 per month, and that he settled for amount due her to September 1, 1909. Then alleged that she continued devoting her attention to said business in Bosque county, including the hiring and discharging of hands, paying the hands, making all necessary purchases for the conduct of the business, keeping the time of the hands, and seeing them perform their work, keeping the books and accounts pertaining to the business, receiving and answering letters from said Kittrell, and the carrying on and doing what he would have had to do in person, unless represented by some one, and that said services from September 1, 1909, to March 1, 1911, at $85 per month, amounted to $1,530, and the same was unpaid. That said Kittrell, as receiver, employed as his counsel H. Masterson and H. N. Atkinson, and they made the bond of said receiver. That about the 1st of September, 1909, an agreement between Margaret E. and A. C. Allen and said Kittrell’s attorney was made, by which it was agreed that the total of expenses due Kittrell as receiver for care and management of the business of receivership, including compensation to his attorneys, should be $8,000. That at the time said arrangement was proposed, it was-understood Mrs. Claire E. Allen was to receive $85 per month, to come out of said $8,000 as an item of expense necessarily incurred in the management of said estate, etc. That about February 17, 1911, Margaret E. and A. C. Allen contracted with H. Master-son for $8,000, substantially alleging that $4,000 of same had been applied as fees to-Kittrell’s attorneys as receiver, and that there was $4,000 remaining in said Masterson’s hands to be paid over to said Kittrell. Said $8,000 is alleged to have been divided by Kit-trell and his attorneys. That said money, in truth and in fact, is the money of Margaret E. and A. C. Allen, with the trust against it of being applied for the use and benefit of Margaret E. and A. C. Allen in the payment of the costs of said receivership, including the compensation said Kittrell was to receive as receiver. Said petition alleged that said Kittrell now sets up a claim to the whole-of said $4,000, ignoring and refusing to pay said Mrs. Claire E. Allen the value of her services, and I-I. Masterson was impleaded because holding said money, and that Mas-terson was not asserting any claim adversely to either plaintiffs or defendant. A separate and distinct count in the petition: “But should the court be of opinion that the above-facts do not constitute an express contract,” and alleging that Claire E. Allen performed said services, and that Kittrell dealt with her-as his agent and assistant, and that she rendered the services from September 1, 1909, to March 1, 1911, under verbal and written instructions from Kittrell, and that same would have had to have been performed by him or some one for him, and that said services were absolutely necessary to the preservation of the property and conduct of the-business, and that Kittrell accepted said services, and that they were reasonably worth $85 per month. That, in addition, she protected . the property from trespassers, caused legal proceedings to be instituted against them, setting out particular trespasses, and had to attend court in Bosque county about these matters; also had to attend court to protect the rent due from a tenant whose cotton was attached by contending firms of merchants, and rode about 60 miles in all in a buggy attending court about this matter, and is advised will have to attend court again and until it is settled, and prayed judgment for the amount due her from September 1, 1909 to March 1, 1911, at $85, and asking it be made payable out of the $4,000 in the hands of Masterson. The petition contained prayer for general relief.

Defendant Kittrell answered showing he • was receiver in cause 46,812, appointed December 26, 1908, and asked that the present cause be consolidated with said receivership cause. Then a general demurrer. Then spe- - cial exception that it was, in effect, a suit by plaintiffs against themselves. Then general denial. Then plea admitting $8,000 was the amount agreed on as compensation for the receiver and his attorneys in and about the management and care of said estate. Also admits that, of said amount, $4,000 was to be paid to the firm of Masterson, Atkinson & Masterson, attorneys for receiver, and $4,-000 to this defendant as receiver of said estate, but denies that there was any agreement between him and plaintiff in any way that any part of his $4,000 was to be paid to plaintiffs or either of them. Also alleges that $100 a month was paid A. C. Allen during a portion of the time of this receivership for his services in and about the care of said farm, and that no amount was paid Mrs. Claire EL Allen, etc. Alleges value of said estate about $600,000, and its indebtedness about $360,000. That he and his counsel diminished the amount claimed about $SO,000. That he attended court in Bosque county to prevent the estate in Bosque county being sold there by execution, and that an appeal was taken from adverse judgment to the Court of Civil Appeals at Et. Worth, and that it was reversed and rendered in favor of the estate. That said $4,000 was a small compensation. Denied that it was understood that Mrs. Claire E. Allen was to be paid anything out of his compensation, and particularly that he did not so understand it, etc., but if the court was of the opinion Claire Allen so understood it, then to grant her a reasonable compensation out of said estate. Also asks that the $4,000 due him be confirmed, and asked for $500 in a cross-allegation for trouble and counsel fees defending this suit.

The cause was tried before the court without a jury, and judgment rendered to effect that said cross-action be dismissed, and the defendant Kittrell and. H. Masterson go hence without day and recover costs, etc.

Appellants’ first three assignments charge that the court erred in rendering judgment for defendants Kittrell and Masterson and against the plaintiffs, because the evidence showed that the services alleged in the petition were performed, that they were reasonably worth the amount sued for, had been authorized and accepted by said Kittrell, and had not been paid. Because, if there was no express contract, the evidence established an implied contract in that defendant, Kittrell, knew that plaintiff performed the services and admitted he did not, and when the evidence showed his liability and duty to perform it, or have it done by some one, and there was no evidence that she agreed to do it without compensation. Appellants’ proposition is that: “Where a receiver orders work done by a party in order to carry out his duties, and where he fails to allege and prove that he applied to the court for authority to employ an assistant, and that such employment was authorized by an entry on the docket of the court, and such party does the necessary work for the receiver under his directions, he is personally liable for the reasonable value of such services. Where the estate of one is taken in receivership, the law does not require such one to go ahead and perform the duties of attending to the business gratis and without compensation, a fortiori, is one’s wife under no obligation to do so. A receiver should give the receivership business his personal attention, and with the same prudence as in his own affairs. Where a judgment is warranted on the facts for the value of services performed by one person for another, which latter was receiver of the estate of a feme sole and her son, and where the evidence showed that the sum of $8,000 had been agreed on by all parties in interest as the total amount of costs and expenses of the receivership, same to be provided by said feme sole and her son, the owners of the property in receivership, and where the evidence showed they did provide and have in the hands of a party said $8,000 to pay such costs and expenses, while this takes the matter out of the jurisdiction of the court in the receivership cause, on the ground that the parties have, by contract, settled the matter, it does not warrant such judgment, sought as in this case, in an independent suit against the person for whom the services were rendered, payable out of said $8,000, especially where such plaintiff is the wife of one of the parties who provided such money.”

There is no doubt that a receiver may make contracts, without the sanction of the court, binding himself personally to another party for debts incurred by himself. I. & G. N. v. Herndon, 11 Tex. Giv. App. 465, 33 S. W. 377. By express contract or by accepting services from another, which he himself is bound in law to perform in due course of receivership, and which otherwise would be a charge against the property, the trial court finds, in the fourth paragraph of findings of fact, that the defendant never directly nor indirectly promised or agreed to make himself liable personally for any compensation whatever to be paid to the plaintiffs. Since the plaintiffs do not attempt to hold the estate liable, and the trial court has held in unqualified terms, as a matter of fact, that the receiver, Kittrell, did not bind himself, then clearly the plaintiffs are not entitled to recover in this action against him personally. It is urged with much zeal that because plaintiffs did the work with the knowledge of defendant Kittrell, and at times under direct instructions from him, that an implied contract is thereby created to pay the value thereof.

The plaintiffs’ pleading is that by an agreement with Masterson and Atkinson, attorneys for defendant, Kittrell, in his official capacity as receiver, the sum of $8,000 should be the whole of the compensation for both receiver and his attorneys, and that out of it the future expenses of receivership should be paid. This is disputed by the attorneys. But it is nowhere contended that the latter part of this agreement was ever communicated to defendant Kittrell, so while he agreed to take $4,000 as his compensation as receiver, we search the record in vain for any evidence that the receiver had any reason to think that any portion of his $4,000 should go for the expenses of receivership. So it is but reasonable to conclude from the facts of this case that, while the receiver knew the work was being done by plaintiffs, he also had reason to believe that it was being done to save that expense to the receivership proceedings, and since the very property belonged in residue to the parties doing the work, and that thus, through this fact, they received compensation in fact, the receiver had no reason to believe that he was liable personally. At any rate, there is no such showing in this record as would justify a court in holding that the plaintiffs should be compensated out of the allowance made to defendant Kittrell by the court, as his compensation for services as receiver.

The other assignments raise the same questions, so all are overruled.

Finding no error in the record, the judgment of the lower court is affirmed.


author: HIGGINS, J. HIGGINS, J.

text:
    ATCHISON, T. & S. F. RY. CO. v. BRYANT.
    (Court of Civil Appeals of Texas. El Paso.
    June 26, 1913.
    On Rehearing, Dec. 18, 1913.
    Rehearing Denied Jan. 8, 1914.)
    On Rehearing.
    1. Appeal and Error (§ 743) — Questions Reviewable — Assignments oe Error — Rules oe Court.
    An assignment of error, though not conforming to Courts of Civil Appeals rule 25 (142 S. W. xii) providing that an assignment must refer to the part of the motion for new trial in which the error is complained of, must be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Master and Servant (§ 224) — Injury to Servant-Licensee.
    Where a railroad company expressly authorized trainmen to ride on switch engines in going to and from their work, a brakeman attempting to board a switch engine to ride to his home after completing his run was not a mere licensee, and he did not act at his own risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 654; Dec. Dig. § 224.]
    3. Master and Servant (§ 217*) — Injury to Servant — Assumption oe Risk.
    A brakeman, who knew of the existence ^nd general location of a switch stand near a railroad track, but who did not know that it would not clear a man riding on the side of an engine or car on the track, and whose attention had never been directed to the proximity of the stand to the track, was not, as a matter of law, chargeable with knowledge of the proximity, but the jury, in his action for injuries by being struck by the stand while attempting to board an engine, must determine whether he must necessarily have known of the dangerous proximity of the stand to the track.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dee. Dig. § 217.]
    4. Appeal and Error (§ 742) — Questions . Reviewable — Assignments oe Error —
    Multieariousness.
    Assignments submitted as propositions, and as such multifarious, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Master and Servant (§ 217) — Injury to Servant — Assumption oe Risk.
    Assumption of risk is not in all cases predicable from the employe’s knowledge of the conditions alone; an appreciation of the danger, as well as knowledge, being an essential element.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 5⅛-600; Dec. Dig. § 217.]
    6. Trial (§ 296) — Injury to Servant — Instructions — Misleading Instructions.
    Where, in an action for injuries to a brakeman struck by a switch stand while attempting to mount a switch engine, the court charged that railroad companies were not insurers of the safety of their employes, and employfis assumed the risks ordinarily incident to the business and the risks which were open and visible to observation, but it could be presumed that the company would exercise ordinary care to keep the track reasonably safe, a further instruction that, if the danger from the position of the switch stand was one of the ordinary risks of the employment, or the brakeman knew of the position of the stand, or in the ordinary discharge of his duties he must necessarily have acquired the knowledge and appreciated the danger therefrom, he assumed the risk, and there could be no recovery, was not objectionable as placing too great a burden on the company because requiring that the knowledge of the brakeman must have been acquired while actually engaged in the discharge of his duties.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 470; Dec. Dig. § 296.]
    7. Trial (§ 295) — Instructions — Construction.
    The instructions must be considered as a whole in determining their correctness.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 295.]
    8. Master and Servant (§ 268) — Injury to Servant — Evidence—Admissibility.
    In an action for injury- to a brakeman struck by a switch stand while mounting a switch engine to ride to his home after completing his run, evidence of a bulletin of the company, which recited that engines would pick up crews, was admissible on the issue of his right to board the engine.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 910; Dec. Dig. § 268.]
    9. Appeal and Error (§ 1051) — Harmless Error — Erroneous Admission oe Evidence.
    Any error in admitting evidence to prove a fact established by other evidence admitted without objection is not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]

      10. Appeal and Ebeob (§ 742) — Questions Review able — Assignments of Ebeob — Multifariousness.
    The consideration on appeal of an assignment of error, which is submitted as a proposition which is multifarious, will be confined to the proposition subjoined thereto.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    11. Tbial (§ 194) — Instbuctions — Weight of Evidence.
    An instruction consisting of abstract statements of the principles of law governing the case, and not affirmatively presenting to the jury the issues involved, is not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 194.]
    12. Evidence (§ 513) — Injuey to Servant— Evidence — Admissibility.
    In an action for injuries to a brakemañ struck by a switch stand while mounting a switch engine, the testimony of an experienced railroad man that he knew at what distance a switch should be placed from the rail to be reasonably safe, and that everything should clear the line six feet so as to protect employes, was admissible on the issue of negligence in placing the stand too close to the track.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. § 513.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Action by J. C. Bryant against the Atchi-son, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    Turney & Burges, of El Paso, and Terry, Cavin & Mills, Jno. G. Gregg, and A. H. Cul-well, all of Galveston, for appellant. Patterson, Wallace & Gardner, of El Paso, for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For otter cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This suit was instituted by J. C. Bryant against the Atchison, Topeka & Santa Fé Railway Company for damages alleged to have been sustained by reason of personal injuries inflicted upon him while in the employment of said company. Upon trial before a jury, verdict was rendered in his favor assessing his damages in the sum of $5,000, and judgment was rendered accordingly.

Rule 25 for the government of the Courts of Civil Appeals, as amended January 24, 1912 (142 S. W. xii), provides that an assignment of error must refer to that portion of the motion for a new trial in which the error is complained of. Since none of the assignments herein comply with this provision of the rule, they will not be considered.

In opinion rendered upon rehearing in El Paso Electric Railway Co. v. Lee, 157 S. W. 748, recently filed and not yet officially reported, we at length state our reasons for declining to consider assignments of error which do not comply with that provision of amended rule 25, which requires the same to refer to that portion of the motion for a new trial in which the error is complained of. We here now refer to this opinion as stating in full our reasons for declining to consider the assignments in this ease.

Affirmed.

HARPER, C. J., did not sit in this case.

On Rehearing.

HIGGINS, J.

The action of the Supreme Court in granting a writ of error in El Paso Electric Railway Company v. Lee, 157 S. W. 748, indicates its disapproval of this court’s holding that rule 25 (142 S. W. xii) requires that assignments of error shall refer to that portion of the motion for a new trial in which the error is complained of. It therefore becomes our duty to pass upon the assignments of error herein, which we originally declined to do, because of their failure to comply with the rule indicated. The nature and result of this suit, as stated in appellant’s brief, and conceded by appellee to be substantially correct, is as follows: “This suit was instituted in the district court of El Paso county, Texas, by J. C. Bryant against the Atchi-son, Topeka & Santa Fé Railway Company, alleging that he was injured on or about the 23d day of October, 1911, in the yards of the defendant company at Albuquerque, New Mexico; that at that time he was employed as a brakeman by defendant, and that Albuquerque was the end of his run; that after delivering his train in the yards at Albuquerque on that day and after sending the engine to the roundhouse, plaintiff started to his home, and, on account of the distance and location of the roundhouse and yards of the defendant from the resident and business district of Albuquerque, plaintiff attempted to’ mount one of the defendant’s switch engines for the purpose of riding thereon to Central avenue; that while he was in the act of mounting said engine and before he had reached a place of safety he was struck by a switch stand and caused to fall from said engine in such a manner that his foot was caught by the wheels of same, and that he was injured without any contributory negligence on his part. Plaintiff alleges that said switch stand was constructed and maintained too close to the track on which the switch engine was proceeding, and that same was negligence and the proximate cause of his injuries. Defendant answered by general denial and by pleas of contributory negligence and assumed risk, answering that plaintiff at the time of his injury was not engaged in any work for the defendant, and that he had no right to mount said moving engine, and that if he chose to do so that he did so at his own peril; that said switch stand was in the same position in which it had been for years; that the accident occurred in broad daylight; that when plaintiff attempted to mount said engine he was in full view of the switch stand, and that he knew or should have known of the position of same, and that in attempting to mount said moving engine at the gangway he assumed the risk of striking said switch stand and of receiving the injuries which he suffered. By supplemental petition plaintiff alleged that he had a right upon said switch engine because defendant had issued a bulletin stating that switch engines would carry employes of the company to and from town and the Albuquerque yards. The cause was tried with a jury, and a verdict was rendered November 8, 1912, in favor of plaintiff, assessing his damages at $5,000.”

Appellee testified that on October 23,1911, he was in the employment of appellant in the capacity of brakeman, and immediately prior to the accident he had come into the Abajo yards of appellant at Albuquerque, N. M., with his train; that said yards are distant about a mile and a half or two miles from Albuquerque, and that the train men left their trains and got them in the yards; that he was living in Albuquerque on Central avenue, and on the occasion mentioned he had turned the switch at the roundhouse for his engine to go into the roundhouse, and then attempted to board a switch engine going in the direction of Central avenue, for the purpose of riding as far as (possible towards his home. As he attempted to board the engine, he secured a hold with his right hand, but missed, the grabiron with his left, and, before he could straighten up and get onto the engine, he was hit by „a switch stand on his left hip, thrown from the engine and his right foot fell upon the rail, the engine running over and crushing same. It appears that the roundhouse near which appellee attempted to board the engine was distant about five blocks from Central avenue, to which latter point it was his purpose to ride upon the switch engine. The distance from the rail to the switch stand which struck him was 3 feet 8 inches, and only 17 inches from the target of the stand to the grabiron of the engine which he had attempted to board. He had been running into the Albuquerque and Abajo yards for about four years and four months prior to his injuries, and he was familiar with the usual and customary manner in whicji the trainmen residing in Albuquerque went to and from the Abajo yards; said employes going to and returning from such yards would ride switch engines and trains when it was convenient to do so, that is, they would ride same over the tracks to and from the yards whenever one was available for that purpose. If an engine or train was not passing at the time, they would walk and go over the switches and tracks in the yards. He had ridden in the presence of the yardmaster and had never been forbidden to so ride. The employes operating the switch engines never made ,any objections to such parties riding on such engines, and he had never heard of any. Sometimes they would stop and sometimes slow down for them. He knew that there was a switch stand at the point where he was injured, and, if it had been changed in years, he knew nothing of it. The accident happened in the daytime. The engine which he was attempting to board was backing towards Central avenue. The roundhouse was five blocks from Central avenue, and he attempted to board the engine near the viaduct, four blocks from said avenue. The engine of the train upon which he had come in from his run went into the roundhouse, where he had gotten off of same, and he then had over four blocks to go, and if the switch engine had gone entirely all of his way, he would have saved walking three and a half or four blocks from the viaduct, where he had attempted to board same. That when he attempted to board the switch engine, the fact that he missed the grabiron with one of his hands caused him to swing outward, but he was back and ready to catch the grabiron, and would have secured it if it hadn’t been that he was knocked off by the switch. He was in the process of straightening up and getting back when he struck the stand; that the switch which he turned to direct his road engine into the roundhouse was a block nearer town than the roundhouse, and when he had turned this switch his part of his trip was done, and he was through with that day’s work and he then started home; that, in attempting to board the engine, he did not figure on the switch stand. He did not know it was as close to the rail as it was. He knew the switch stand was there, but didn’t know it was jammed up against the track. 1-Ie had walked by it before, but had never had occasion to use it. He had gotten on switch engines before near that same place, and had probably mounted a switch engine within 50 feet of the switch stand prior to that date; that he did not see the switch stand. There was nothing between him and the switch stand. When he first started to run to the engine to the point where it was passed, he did not know whether the switch stand was plainly in his view or not, but he believed the way was clear. He did not know whether the switch was too close to clear him or not. He had never thrown the switch or used it, and had never seen any one throw it, and had never had his attention called to the switch by any one, and, at the time he met with the accident, he did not know that the switch would not clear a man riding on the side of an engine or car. The engine which he attempted to board was of a very small type, other engines being broader than that one; that he attempted to board the gangway of the engine; the gangway is between the engine and the tender.

Frank Mulhern, an experienced railroad man and former employé of defendant in its yards at Albuquerque, testified as follows;

“Prom my experience as a railroad man I know at wliat distance a switch ^should he placed from the rail, to be reasonably safe; everything should clear the main line six feet; this is necessary, so as to make protection for the people who are working arpund on the cars, and things of that kind. * * * I was familiar, during the time I ran into the Albuquerque yards, with the method and way in which the conductors and brakemen got to and from the Abajo yards; I know how they handled me, and I could see how the others went. It is some distance from Albuquerque, -where we slept and ate, to the yards, and if a switch engine or road train was passing, they would naturally slack up and pick you up, so you would not have to walk two or three miles; this was habitually done while I was there; it was in my case. I have seen them pick up others; they would naturally pick up everybody else, the same as me. If an engine was passing, it would slow down, and I would get on.”

C. W. Fineron, a former employé of defendant, and an experienced railroad man, in substance testified: That in order to make a switch reasonably safe it should be placed at such a distance from the track or rail so that a man standing on the side of an engine or car would clear and not be struck by the switch; that witness worked in the yards at Albuquerque from 1905 to 1910 as switchman and yardmaster; that, during the time he was employed it was usual and customary, in going to and returning from the Abajo yards and roundhouse and between the roundhouse and Central avenue, for the brakeman and conductor to ride on the switch engines; that he was familiar with the switch placed where plaintiff met with his accident, and that the same was too close and would not clear a man standing on the side of a car or engine. That he was also familiar with the bulletins issued by the Santa Fé, with reference to business in the yards at Albuquerque. That during the time he was employed there was a bulletin issued, posted, and in force, authorizing the switch crews and engineers on switch engines to carry the brakeman and conductors and permit the conductors and brakemen to ride between Central avenue and the roundhouse and Central avenue and the Abajo yards when going to or returning from their work; that this bulletin was issued- in 1909, and was in force during all the time he worked for the defendant; that when a bulletin is issued it remains in force until repealed by some other bulletin; that no other bulletin was ever issued repealing this bulletin while he was in the employ of the defendant.

H. R. McLain, another experienced railroad man and former employé of defendant, testified: That he was familiar with the rules, regulations, and bulletin of defendant at Albuquerque; that in 1909 and 1910 the defendant had a bulletin posted in its offices at Albuquerque, which authorized the brakemen and conductors in going to and returning from their work between Central avenue and the roundhouse and Abajo yards to ride on switch engines, and which bulletin directed the switching crew to permit its employés to so ride. That it was customary for all the brakemen and conductors to ride on the switch engines in going to and returning from their work, and that they rode and were permitted to ride by reason of said bulletin. That no bulletin was issued annulling this bulletin. That the cause of the bulletin being put up there was because several trains had been delayed — one thing and another had delayed the men in getting down there.

H. A. Taylor, an employé of the defendant up until April 22, 1911, testified that the usual and customary way for brakemen and conductors to go to and return from the yards was to ride an engine.

C. H. Morris, in the employment of the defendant, running into Albuquerque from 1902 to 1909, as a locomotive engineer, testified in substance: That he was familiar with the customary manner and way in which defendant operated its business at Albuquerque ; that, during the time he was employed and ran into the yards at Albuquerque, it was customary for defendant’s brakemen and other employes to ride on switch engines in going to and returning rrom the city of Albuquerque to the roundhouse and the Aba-jo yards; that there was a bulletin in force at that time authorizing them to ride, and that he had personally read the bulletin.

The first assignment complains of the refusal of a peremptory instruction in favor of the appellant, it being contended that “an employé of a railway company who attempts to ride upon a train of such company, unless in the discharge of his duties, even with the consent of such company, is only a licensee, and must accept the tracks over which he rides in the condition in which he finds them.” We cannot assent to the broad proposition here asserted. Under certain circumstances, a tacit consent only to certain employes to ride upon trains while not in the discharge of any duty would constitute them mere licensees, as was held in the Spivey Case, 97 Tex. 143, 76 S. W. 748; but the bulletin, which expressly authorized trainmen to ride in going to and from the Abajo yards and the city of Albuquerque and intermediate points, placed the appellee upon a higher plane than that of a mere licensee. Lovett v. Ry. Co., 97 Tex. 436, 79 S. W. 514; Chattanooga, etc., v. Venable, 105 Tenn. 460, 58 S. W. 861, 51 L. R. A. 886. In the Lovett Case, supra, it was held that a railroad company owed to the employé of an independent contractor, permitted to ride on its gravel train between his home and the gravel pit where he labored, the duty of ordinary care to guard against injury. The existence of tlie bulletin in this case radically distinguishes it from the Spivey Case, and this is especially true in view of the testimony of Mc-Lain, substantially to the effect that it was adopted to expedite the passage of employes to and from their homes, so as to prevent delay to trains. Such testimony shows it was to the company’s interest that such employes should ride in going to and from their homes, and, in so riding, the employes were acting in the interest of the company, as well as for their own convenience. However, we do not base our view upon this fact alone, but rather upon the broad ground that an employe lawfully and expressly authorized to ride upon an engine or train to and from his place of employment is thereby placed upon a distinctly higher plane than a mere licensee, who must accept the engines, trains, and tracks as he finds them. The contention is therefore overruled that appellee was a mere licensee, and in attempting to board the switch engine, did so at his own risk.

In the first assignment, it is further contended that: “In an action for personal injuries, a plaintiff is presumed to have assumed all risks of which he had actual knowledge, and of which he must necessarily have acquired knowledge, and, where the only allegation of negligence is the placing and maintaining of a switch stand in close proximity to one of defendant railway company’s tracks, plaintiff cannot recover where the undisputed evidence shows that he had had knowledge of the existence of such switch stand for years, and that the accident occurred in broad daylight, when the plaintiff was in full view of the switch stand.”

It is true the evidence shows appellee had known of the existence of the switch stand for a long time; that the accident happened in broad daylight, and when he was in full view of the stand. But, in the performance of his duties as a brakeman, he had never had occasion to use the switch, and he testified he did not know it was as close to the rail as it was, and did not know it would not clear a man riding on the side of an engine or car. We cannot say that mere knowledge of the existence and general location of the switch stand would have necessarily carried with it knowledge of the fact that it was closer to the rail than it should have been, and would not clear parties on the side of an engine. His attention may not have ever been directed to the proximity of the stand to the rail, although he might frequently have seen the same; and therefore it was for the jury to determine whether or not he must necessarily have known of the dangerous proximity of the stand to the rail. It cannot be said from the evidence that he was charged with this knowledge, as a matter of law.

Assignments two, seven, and eight are submitted as propositions. As such, they are multifarious and will not be considered.

Error is assigned to the tenth paragraph of the court’s charge which reads: “If you find from the evidence that the danger arising from the position of said switch stand, if any, was one of the ordinary risks of plaintiff’s employment, as a brakeman running into Albuquerque, or the plaintiff knew of the position and location of said switch stand, or in the ordinary discharge of his duties he must necessarily have acquired the knowledge and appreciated the danger therefrom, or should have appreciated the danger therefrom, then, and in that event, he would have assumed the risk of any danger from being struck by said switch stand, and, if you believe the facts to so be, your verdict should be for the defendant.”

It is first contended that, plaintiff being an experienced railroad man and having known of the location of the switch stand for a long time, he was charged, as a matter of law, with knowledge of the danger resulting from the proximity of the stand to the track. This contention must be overruled for two reasons: First. As above shown, while plaintiff knew of the location of the switch stand, yet it cannot be said, as a matter of law, that he had necessarily acquired knowledge of its proximity to the rail, and the consequent danger to parties attempting to board an engine while passing the stand. Second. Assumption of risk is not in all instances predicable from knowledge of the conditions alone. Discussing this question, Mr. La-batt, in the first edition of his work on Master and Servant, vol. 1, at § 279a, p. 668, says: “Any charge which may lead the jury to suppose that the defense of assumption of risks is available to the master if the servant was aware merely of the existence of certain abnormal conditions is a misdirection.” Again, at section 279b, p. 670: “The practical importance of the principle stated in the last section is considerably diminished by a fact which is sufficiently obvious, viz., that circumstances which would justify a jury in finding that a servant, although aware of the abnormal conditions, did not comprehend the risks resulting therefrom, are of much more rare occurrence than circumstances in which his comprehension of the risk is an unavoidable inference as soon as it is established that he knew of the abnormal conditions. In the majority of instances therefore, it will be found that the courts treat the servant’s assumption of the risk as an immediate consequence of his knowledge of the conditions of which that risk was an incident. The rationale of these decisions is not that proof of the servant’s comprehension of the risk is unnecessary, but simply that, upon the facts in evidence, any person of average intelligence who was aware of the conditions must either have understood, or have been chargeable with negligence in not understanding, the hazards to which these conditions exposed him. But, although one step of the deductive process is thus taitón without the aid of any specific testimony, there is a mamfest impropriety in giving an abstract statement of the rule as to assumption of rislcs in terms which ignore the circumstance that this step must be accounted for.” Therefore, while it may not be improper under certain circumstances for the court to assume appreciation of danger, and submit to the jury the issue only of a knowledge of the condition, yet a charge should not be criticised which recognizes as an essential element in the doctrine of assumed risk an appreciation of the danger, as well as knowledge of the abnormal conditions. As stated by Mr. Labatt, however, the matter is of but little practical importance, where appreciation of the danger is an unavoidable inference as soon as knowledge of the condition be established.

It is further contended that, while an employé assumes all the risk of which he has actual knowledge and of which he must necessarily have acquired knowledge, yet the charge in question placed too great a burden on the defendant, in that it required the knowledge of appellee must have been acquired by him while actually engaged in the discharge of his duties. The construction placed upon this isolated paragraph of the court’s charge is strained, and it is not believed the jury were lead to believe or could have believed therefrom that, in order for plaintiff to have assumed the risk, his knowledge and appreciation of the danger must have been acquired when in the discharge of his duties as a brakeman only, but they would have placed a reasonable construction upon it, and would have found that he assumed the risk if he had knowledge of the defective condition and consequent danger, or must necessarily have acquired the same, regardless of whether such knowledge was acquired in the discharge of his duties as a brakeman or otherwise. This matter is re- ■ lieved of doubt by the fourth paragraph of the court’s charge, which reads: “You are instructed that railroad companies are not to be regarded as insurers of the safety of their employés, and that, when one enters the employment of a railway company, he assumes all the risks that are ordinarily incident to the business in which he is engaged and the risks and dangers which are open and visible to his observation, as well as the risks and dangers of which he knew, or, in the ordinary discharge of his duties must necessarily have acquired the knowledge, but he may presume that the company will exercise ordinary care to keep the railroad track and right of way along which its engines and trains are operated reasonably safe and free from obstructions as may endanger its employes while in the exercise of ordinary care for their own safety and attempting to mount an engine for the purpose of rightfully riding thereon to some other point and place in the yard.” I

The fifth assignment complains of the admission of testimony of H. R. McLain that there was a bulletin with reference to brakemen riding on engines, which stated that any engine going to or coming from the Abajo yards would pick up any member of the crew, and which was objected to for irrelevancy and immateriality. It was relevant and material upon the issue of appel-lee’s right to board the passing switch engine. Furthermore, other witnesses testified to the same facts without objection.

The charge must be construed as a whole, and, construing the tenth paragraph in connection with the fourth paragraph, the jury must have understood that appellee assumed all the risks and dangers which were open and visible to his observation, whether he acquired same in the discharge of his duties or otherwise. The refusal of a special requested charge is the basis of the fourth assignment. It was properly refused for reasons indicated in overruling the second contention under the first assignment and the second contention under the , third assignment. The charge assumes that the plaintiff knew of the proximity of the stand to the rail and the consequent danger, which, for the reasons indicated, is not proper.

The sixth assignment is submitted as a proposition, but, as such, is multifarious, and consideration will be confined to the proposition subjoined thereto. This proposition is that, under the evidence, appellee was nothing more than a licensee, and, as such, could not complain of the location of permanent fixtures , along the right of way or the location and position of the tracks and switches. This contention is disposed of by what has been heretofore said.

The ninth assignment complains of a portion of the fifth paragraph of the court’s charge as being upon the weight of the evidence in assuming two disputed questions at issue, viz., whether plaintiff was an employé at the time and place of his injury, and was rightfully attempting to mount one of appellant’s engines. The court, in the portion objected to, nowhere assumes any fact. It merely consists of abstract statements of the principles of law governing in the case, and is not an affirmative presentation to the jury of the issues involved. The further contention made in the proposition subjoined to this assignment is disposed of by what has heretofore been said.

The testimony of Frank Mulhern, the admission of which is the basis of the tenth assignment, was relevant and material upon the issue of negligence in placing the switch stand too close to the rail. The further contention made in the proposition subjoined to this assignment, with reference to appellee’s alleged status as a licensee, is disposed of by what has heretofore been said.

The motion for rehearing is overruled.


author: HIGGINS, J. McKENZIE, J.

text:
    FRENCH et ux. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Master and Servant (§ 286) — Injuries —Jury Question — Negligence.
    In an action for a lineman’s death while descending from a platform suspended on a messenger wire by a line passing over a pulley attached to an open hoot, by the hook slipping off, whether defendant employer was negligent in using an open hook helé a jury question.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    2. Master and Servant (§§ 101, 102*) — Master’s Duty — Saee Appliances.
    A master is not required to furnish the newest or safest appliances.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    3. Master and Servant (§ 105*) — Negligence-Custom op Employers.
    The fact that defendant and other employers had habitually used a certain kind of appliance does not of itself show that they were not negligent in doing so, the question being whether defendant exercised ordinary care in using that particular appliance.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dee. Dig. § . 105.]
    McKenzie, J., dissenting.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by J. E. French, and wife against the Southwestern Telegraph & Telephone Company. From a judgment for defendant,
    plaintiffs appeal.
    Reversed and remanded.
    Ring, Carothers & Brown, of Houston, for appellants. Harris & Harris, of Houston, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This suit was brought against appellee by J. E. French and wife to recover damages on account of the death of John W, French, Jr., their son, who fell and was killed, while in the employ of appellee, on October 28, 1911. It was alleged that the deceased was under the direction of one of defendant’s foremen and vice principal, Adrian Hall, and was engaged in repairing and connecting wires used by the defendant at the intersection of Walnut and Providence streets in the city of Houston; that, in doing said work, it was necessary that Hall and the deceased make use of a platform suspended from a messenger wire holding a cable of .defendant, and, at the time of the casualty, such platform was suspended midway between the posts of the company and about 30 feet from the ground. That, for the purpose of reaching the platform and of conveying material from the ground thereto and of descending therefrom to the ground, the defendant had furnished to Hall, for the use of himself and of deceased a hand line consisting of a pulley with a rope running through the same, the pulley being attached to one of the messenger wires by means of an op'en hook. That, acting under the orders of Hall and within the scope of his employment, deceased, in attempting to come from the platform down to the ground, made use of said hand line, and, while he was so doing, the hook by which the pulley and hand line was attached to such messenger wire slipped and came off of the same, and, by reason thereof, the deceased fell to the ground and received the injury which resulted in his death; that said hook was not reasonably safe for the purposes for which it was used, in that it had no safety catch or device of any kind attached thereto to insure its staying and holding on the messenger wire when weight was applied to it, and that, in this respect, the defendant was negligent, and such negligence was the proximate cause of the death of the deceased. It was further alleged that defendant knew of the unsafe character of said hook, and that it was not reasonably safe to use for the purposes for which it was used, and that the deceased was a minor, inexperienced and unaware of the danger attending the use of the hand line and hook in its said condition, without a safety appliance or of the chances of injury resulting from such use. That it was customary for defendant’s employes engaged in similar work to make use of the hand line, which was well known to defendant, and that the defendant knew and should have known that deceased would probably use the same in descending from the platform. That it was the duty of defendant to warn the deceased of the dangers incident to such use, and that the defendant had failed to do so, which failure to warn was likewise negligent and the proximate cause of the death of the deceased. Defendant answered by general denial and special pleas of assumed risk and contributory negligence. At the close of plaintiff’s testimony, the court peremptorily instructed in defendant’s favor, in accordance wherewith verdict, was returned and judgment rendered.

The evidence bearing upon the questions presented by this appeal is that of Adrian Hall, with whom deceased was working as a helper at the time his injuries were received. Hall’s entire testimony is: “My name is Adrian Hall, and I am in the employ of the Southwestern Telegraph & Telephone Company. I have been working for this company off and on for, I guess, three and one half or four years. I was working for them on the 28th day of October, 1911. I had been working for the telephone company for three years, I guess, at the time that Mr. French is alleged to have fallen and been killed. My duties at that time were those of a cable splicer. A cable splicer’s duty is to splice cable. The cable is a bunch of wires carrying electricity and the cable is suspended from tlie telephone poles and from pole to pole by-messenger clips that hold the cable to the ‘messenger/ The messenger wire is a big steel wire which is stretched from pole to pole and the cable is suspended from the messenger wire and under the messenger wire. The cable is a heavy lead cable in-casing the bunch of wires carrying the electricity. I was the man with John W. French, and he was working for the Southwestern Telegraph and Telephone Company at the time he was killed. He was a helper helping me. I don’t remember how long he had been working under me, it was several months, though. I don’t remember how long it was. He had worked under me from the time he started in with the company, and had never worked under any one else that I know of, unless it was the days that I was off, or something, he might have helped some one else. He was my helper and was the only man I had helping me. While he was helping me he was under my orders. The platform that we work on when we are splicing these wires is fastened to the messenger with straps that we go and snap on there. One end snaps to the corner of the platform and one to the messenger. There are four of them, one on each corner. I don’t know whether you would call them hooks or not. I call them a snap. (Counsel here hands witness some straps, hooks, etc.) This is the hook by which the platform was fastened to the messenger. This hook snaps onto the platform, then it hooks over the messenger, one on each corner, there are four of them. On the day that Mr. French fell I was working on the corner of Providence and Walnut streets in the Fifth ward, Houston, Tex. The wire I was working on was running up and down Walnut street, and Walnut street, I would think, would run east and west. I would think that Providence street runs north and south. I was right at the corner, you might say. The wire that runs on Providence street crosses the wire that I was working on. I don’t know which wire crosses over the end; I know they cross there. I was working about four feet, I should judge, from the intersection of these wires where they crossed each other. I didn’t measure how high that was from the ground, but I would judge it to be about 35 feet. I think the nearest telephone pole was 12 or 15 feet away. (Counsel here handed to witness the hand line admitted to have been used by French the day he fell and asked him to explain its use to the jury.) This (hand line) is hooked on the messenger to draw stuff up that I use. You see, if you get it tight you can pull it down and pull it back up by the other side. One hook is hooked over the messenger wire, and the other hook is used in drawing up the material from the ground. We began work at about 7:30 the morning that French was injured. I don’t know that we were right there when we began. We had worked from then to 15 minutes to 12, and that was the time of day when he fell. French had a watch and pulled it out and said it was 15 minutes to 12 when he started down. I don’t know whether it is customary for men working in my position to use that hand line for descending from the platform to the ground; 1 have used it myself. When it was a distance away from a pole and it was hard to get to it, I always used it myself. On the pole closest to us there were some light wires running along up this pole on each side of the pole. I mean electric light wires. It is dangerous for a man to got shocked by the current they carry. If you get hold of one that is hot enough, it is enough to kill a man and is likely to kill you. They carry heavy enough current to kill you. 1 had been down to the ground after I had ascended to the platform that morning. When I went down, I went down on the hand line. Young French had been down from the platform that morning. He, too, went down the hand line. As near as I can recollect, French met his death in this way: I told him to go down and test the cable box with me, and he started down and was getting my cable to test with when we got there, and I went on and opened up my cable, and I heard the block and tackle and I saw him falling. That is all I know of how it happened. I did not have my back to him when he started down the hand line. I had my face to him, but was not looking at him. I was looking at the cable. When he started down the hand line he had got off the platform. We were on the platform when I told him to go down to the ground. He started down by the hand line. When I looked the hand line was loose from the messenger wire and was descending to the ground with him. When I saw him fall, I got down as quick as I could. They carried him over in the shade of a flat; there was a pretty good crowd around, so some lady told me to go and get some camphor, and while I was over there I heard the ambulance coming, and I rang my foreman and told him he was hurt; I didn’t know how bad he was hurt. I saw him after that in the infirmary. I think it was the next morning that he died; I was there that night. I had never told young French not to go down this hand line, that it was dangerous. I had never been told not to use the line for the purpose of descending from the platform. I always used it for the purpose of coming down when I was some distance away from a pole. (Witness here made measurements of the hand line, the hooks attached to it, the straps, etc., in use for the platform.) The depth of the hook by which the hand line was attached to the messenger is about two inches or a little more. The inside measurement of the hook from side to side across the bottom is about three quarters of an inch and across the top at the widest place is about an inch. From the point of tlie hook to the top of the opening on the inside is about two inches. The hand line is about a quarter of an inch or more in diameter. It measures about two inches in circumference. The other hook attached to the hand line by which we draw up the material measures about two inches from the point of the hook to the top of the opening. (Counsel here hands witness another rule and witness remeasures the hook used for drawing up the material.) By this rule the distance is a little oyer two inches. By this rule the measurement from the point of the hook attached to the messenger wire to the top of the opening is about one and three-fourths inches. The measurement across the top part of the larger hook is a little over an inch. The measurement across the top of the other hook is just about an inch. This rope (indicating) is a guy line to guy the platform down and hold it steady. The guy line has the same kind of hook as is on the straps. There is on the guy line what I suppose you would call a safety catch. It is a closed hook to close the snap. The purpose of putting that snap on the hook and the reason it is put on there is it is supposed to keep it from coming loose and to keep it from slipping off. The hook on the hand line has no safety catch on it. The platform we were working on that day was, I suppose, about four feet long and about two and one-half to three feet wide. I don’t know exactly what it is. Cross-examination. The leather strap and hook is the kind that the telephone company ordinarily uses in its work. The guy line is the kind the telephone company ordinarily uses in its work. The hook and the pulley and the hand line John W. French used the day he was killed are the kind of a hook and the kind of a pulley and the kind of hand line that is generally used in that work. I never in all my life saw them use any other kind of one except this. I never in all my life saw a hook like that go over a messenger wire with a clip on it like that. Redirect examination. When I reached the ground I found the hook that had been fastened over the messenger wire by which the -hand line was suspended from the messenger wire lying on the sidewalk. I never noticed whether it fell on top of French or underneath him, or how it did fall, but the hook fell with him. Mr. French was working with me practically all the time from the time that he went into the employment of the Southwestern Telegraph & Telephone Company, except the days that I was off. I don’t remember how often I was off, but I wasn’t off very much. I directed this man to go down to the ground that day. I did not tell him how to go. He usually went down the hand line when he was away from the pole a distance like that.”

From a perusal of the foregoing testimony, it is obvious that, in some unexplained manner, the hook attaching the pulley to the messenger wire became detached, and, when French attempted to descend by the hand line, the pulley fell, and he was precipitated to the ground. The hook was an open one, and it is quite obvious further that, if it had been protected by a safety device such as was used on the hooks or snaps attached to the platform, the danger of it becoming disengaged from the messenger wire would at least have been materially lessened. These patent facts raise an issue of negligence vel non upon the part of appellee in using an open hook, and such issue should have been submitted to the jury.

Appellee contends that plaintiff, in cases of this character, must establish a prima facie case of negligence; that the mere happening of an accident or occurrence of an injury, of itself, does not raise such an issue as between employer and employs. Ordinarily, this is quite true, but from the evidence recited, it is a patent fact that a safety device closing the open space in the hook would have at least materially reduced the likelihood of its becoming disengaged and precipitating ascending and descending loads to the ground.

An issue of negligence is therefore raised, but it is further insisted, in this connection, that the master is not required to furnish the newest, safest, or best appliances and machinery for his servants to work with; and that the cross-examination of Hall, having disclosed that the hook, pulley, and hand line used by deceased was the kind ordinarily used by appellee and generally used by other companies, and that he had never seen a hook go over a messenger wire with a safety clip upon it, acquits the appel-lee of any inference of negligence which might otherwise arise under the circumstances from the use of the open hook. The legal principle asserted is correct, but it has no application to the facts proven. The question is: Was the use of the open hook such care and caution as an ordinarily prudent person would have used under the same circumstances?

The fact that appellee and other companies had habitually and customarily used the same does not, of itself, show that they had exercised ordinary care. The rule is so aptly stated in Morgan v. Ry. Co., 50 Tex. Civ. App. 420, 110 S. W. 978, that we quote from the opinion as follows: “The appellants offered to prove by J. M. Byrnes that he was familiar with the method of construction of the various compresses in Texas, and their platforms, and familiar with the location of same with reference to railway tracks, and with the method of their operation and of handling and storing cotton on their platforms, and that the construction and location of the compress at La Grange was practically identical with that of said other compresses in Texas, and that the method in use by the La Grange & Lockhart Compress Company in the storage of cotton in its compress and on its platforms, and in the handling of cotton in its compress at the time of the fire, was the same as in use at ali other compresses. The court sustained an objection to the testimony, and appellants reserved a bill of exception, and this action of the court is made the basis of their twenty-eighth assignment of error. Appellants contend that, as the compress in question was constructed just as every other compress was in Texas, and its cotton handled just as every other compress in Texas handled cotton, the La Grange & Lockhart Compress Company could not have been guilty of negligence, because, if it did as every other compress company did, its action would constitute ordinary prudence. The assignment is without merit. The habitual practice of any number of compresses, for any period of time, cannot make a negligent act an act of due care and diligence. The test is, Did the compress company exercise ordinary care, that is, such care and caution in the storing or handling of cotton as a person of ordinary prudence would have exercised under the same circumstances?” The case of Lyon v. Bedgood, 54 Tex. Giv. App. 19, 117 S. W. 900, is very much in point. The negligence relied on in that case was the failure to equip a turnbuckle with jam nuts at each end to prevent the turnbuckle from unscrewing and coming loose. The jam nut was a safety device very similar in its purpose to the safety device on the hook. The defendant contended that, as the equipment of the defendant was similar to that in use by other companies, they were not negligent in failing to use the jam nut, but the court overruled this contention, and held that the question whether or not the failure to use the jam nut was negligence upon which the plaintiff might recover was a question of fact for the jury and not one of law for the court. In the case last mentioned, the court says: “There was no error in refusing to give the requested instruction that, if the equipment used by defendants was such as was in general use among reasonably prudent persons engaged in the same business, defendants were in the exercise of ordinary care in using it. We do not think this is the rule in this state. Evidence of such use by other persons engaged in the same kind of business is admissible upon the issues of ordinary care, but the question * * * is whether, under the facts of the particular ease, there has been an absence of ordinary care.”

It matters not, therefore, if appellee and other telegraph and telephone companies have habitually used the open hook for the purposes for which the hook here in question was used. 'Such habitual and continuous use will not convert negligence into ordinary care. A similar" contention was likewise made in Hamilton v. Ry. Go., 36 Iowa, 81, where an employs, while attempting to couple a car, was injured by a projecting timber. The defendant company requested the following charge: “If the ear of timber which hurt the plaintiff was loaded as loads of timber had been usually and commonly loaded and carried over defendant’s and all other railroads, then it was not negligence in defendant to carry timber upon which the plaintiff was hurt.” In disposing of the instruction, the court says: “The instruction was properly refused, for the obvious reason that habits of negligence on the part of the defendant or other railroads will not relieve them from the consequences of their own negligent acts. If, because an act is usual and common, it ceases to be negligent, it follows that the sure way of escaping liability from injuries, in cases of this character, would be to adopt a certain and uniform system of carelessness.”

In further support of the views here expressed upon the impropriety of the peremptory instruction, see, also, Ry. Co. v. Neef, 13S S. W. 1168; Oil Co. v. Snell. 47 Tex. Civ. App. 413, 106 S. W. 173; Ry. Co. v. Wortham, 73 Tex. 25, 10 S. W. 741, 3 L. R. A. 368; Ry. Co. v. Evansich, 61 Tex. 5; Ry. Co. v. Smith, 87 Tex. 348, 28 S. W. 520; Fuchs v. City of St. Louis, 133 Mo. 168, 31 S. W. 115, 34 S. W. 508, 34 L. R. A. 118.

Reversed and remanded.

McKENZIE, J.

(dissenting).

The majority opinion sufficiently states the pleadings and sets out the evidence. It is upon Hall’s testimony that appellants seek a recovery. The record shows that French was about 20 years old, had been in appellee’s employ for several months, working as Hall’s helper, in work similar to that which was being done the day he met his death. The work, the kind of work, the pulley, the hook on the pulley, and the line used in going from the ground to the place of work and in returning thereto are described in Hall’s testimony. All that is known of how young French met his 'death is told by Hall in these words: “We began work at about 7:30 the morning that French was injured. I don’t know that we were right there when we began. We had worked from then to 15 minutes to 12, and that was the time of day when he fell. French had a watch and pulled it out and said it was 15 minutes to 12 when he started down. I don’t know whether it is customary for men working in my position to use that hand line for descending from _the platform to the ground; I have used it myself. When I was a distance away from a pole and it was hard to get to it, I always used it myself. I had been down to the ground after I had ascended to the platform that morning. When I went down, I went down on the hand line. Young French had been down from the platform that morning. He, too, went down the hand line. As near as I can recollect, French met his death in this way: I told him to go down and test the cable box with me, and he started down. and was getting my cable to test with when we got there, and I went on and opened up my cable, and I heard the block and tackle and I.saw him falling. That is all I know of how it happened. I did not have my back to him when he started down the hand line. I had my face to him, but was not looking at him. I was looking at the cable. When he started down the hand line he had got oft the platform. We were on the platform when I told him to go down to the ground. He started down by the hand line. When I looked the hand line was loose from the messenger wire and was descending to the ground with him.”

In T. & N. O. Ry. Co. v. Crowder, 63 Tex. 503, our Supreme Court announced with approval the rule that: “The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.” Under this rule it is there held that the plaintiff is required to show the facts surrounding and leading to the injury, and if, from them, the jury can reasonably infer negligence in the employer contributing to the injury, and the exercise of due care by plaintiff, then he is entitled to recover. If the evidence does not show how the accident occurred by which he was injured, by showing Ms own relation to it and other surrounding facts, some or all of which may appear from the character of the accident itself, he has not gone as far as the law requires him to go to entitle him to recover. That because the action to- recover is prosecuted by a relation of the injured party does not alter the rule. The Crowder Case was again on appeal (see 76 Tex. 499, 13 S. W. 381), and Judge Hobby, rendering the opinion, said: “With respect to the facts in this case, upon a former appeal it was said by Chief Justice Stayton that: ‘The evidence does not show what was the action of the deceased at the time he was injured, nor so develop the facts as to show that he was in the exercise of due care;’ and again, that: ‘The true rule in this class of cases is that the servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.’ ⅜ * ⅜ The only difference at all material between the testimony upon the previous appeals of this cause and that contained in the record before us is that a witness, Eli Burge, for the first time testified upon the last trial as follows: T did not see how George Cohn was hurt. When I saw him he was sitting on the main track on the end of a tie; he was hurt on the south track. To the best of my judgment it was between 10 and 12 minutes after he was hurt before I saw him. When I got to him I found him sitting on a tie about four or five feet from where he was hurt. I suppose it was about two or three feet from one tie to another between the tracks. The rails of the two tracks were about four feet apart. His leg was run over and cut off above the ankle. It was his left leg. I saw signs indicating how he was hurt; saw blood on the rail and tie and on the flange of the wheel of a car opposite to him, and I saw a foot track right down alongside of this bloody tie, in the angle between this tie and the inside of the-rail. It seemed to me it was where Cohn put his foot down inside the track between the tie and rail. The track of the railway was unfilled at this point; the top of the tie was from eight to nine inches above the surface of the ground, and the top of the rail is five inches above the tie. There was blood on the rail and on the tie above the foot track.’ No reasonable construction of this testimony as to ‘the facts surrounding and leading to the accident’ will authorize the conclusion or inference that the negligence of the appellant contributed to the injury, and that there was due care exercised on the part of the injured party, which, under the rule laid down in this case heretofore, was held to be essential for the appel-lees to establish to entitle her to a recovery. See Railway v. Crowder, 63 Tex. 504, 505. Under the facts of this case as now presented, we think the charge requested instructing the jury to find for the defendant should have been given; and, if upon another trial the evidence is of the same character as that now before us, a charge such as requested in this case should be given. Because it was not given, we think the judgment should be reversed and the cause remanded.”

I am of opinion, as said in the Crowder Case, 76 Tex., supra, that “no reasonable construction of this testimony as to the facts surrounding and leading to the accident will authorize the conclusion or inference that the negligence of the appellant contributed to the injury, and that there was due care exercised on the part of the injured party.” Hall says, as heretofore quoted: “As near as I can recollect, French met Ms death in this way: I told him to go down and test the cable box with me, and he started down (and was getting my cable to test with when we got there) and I went on and opened up my cable, and I heard the block and tackle and I saw him falling. That is all I know of how it happened. I did not have my back to him when he started down the hand line.

I had my face to him, but was not looking at him. I was looking at the cable. When he started down the hand line he had got off the platform. We were on the platform when I told him to go down to the ground. He started down by the hand line. When I looked the hand line was loose from the messenger wire and was descending to the ground with him.”

It is not shown anywhere that the absence of any safety device was the cause of the hook getting off of the messenger wire. Common experience teaches that the weight upon the hook would necessarily cause the hook to stay fastened to the messenger wire, instead of becoming loosened. Under the above testimony, it would be mere surmise to say that the accident was caused because the hook on the pulley was not equipped with some safety device. If, however, by a surmise it could be said that the absence of the safety device did contribute to the injury, yet there is an entire absence of testimony upon which even a surmise can be predicated, and that is, that the deceased on his part exercised due care. From my analysis of the evidence I fail to find any, by which it is shown that the deceased did exercise due care. I am therefore of opinion that this cause should be affirmed upon ,the two propositions, viz., that plaintiff failed in proving negligence on the part of the defendant, and that the deceased exercised due care. The burden was upon plaintiff in both instances. The mere fact that there was an accident or that an injury occurred is not proof of negligence, or that deceased exercised due care.

The majority opinion has determined also that the evidence is sufficient to raise an issue of fact as to whether the hook which fastened to the messenger wire should have been equipped with a safety device. I fail to find evidence of negligence on the part of defendant in using the hook. There is no evidence that the hook was unsafe or defective, that it broke or gave way, or that any other kind than the one in use was used by others engaged in similar business. It would seem that in this case the doctrine that the master cannot be charged with a breach of the duties owed to his servants, simply on the ground that a safer instrumentality than that from which the injury might have resulted was available and might have been adopted by him. Plaintiff’s right for recovery seems to be based wholly upon the theory that the defendant could have had a safety device on the hook, yet it is not shown that such device would be practicable, or that it is a proper device to use in the kind of work which was being done when the accident occurred. For the reasons indicated, I respectfully dissent in the views of the majority, and am of opinion that this cause should be in all respects affirmed.