author: BUCK, J.

text:
    GULF, T. & W. RY. CO. v. DICKEY.
    (No. 8010.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Bailboads &wkey;>276 — In juey to Child in Engine Cab — Liability.
    Where a hostler in charge of a locomotive saw a young child in the cab, and did not warn or remove him, but instead opened the injector, with the result that the child was scalded by steam escaping from a squirt valve, supposed to be closed, the railroad company was liable.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 878-886; Dec. Dig. &wkey;276.]
    2. Appeal and Ebeoe &wkey;>544 — Beview—Pre-sumptions.
    In the absence of a proper bill of exceptions, a defendant is presumed to have approved of a peremptory instruction fixing its liability, and cannot complain of the refusal of requested instructions tending to exonerate it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    3. Trial <&wkey;260 — Instructions—Befusal.
    The refusal of requests covered by the charge given is not error.
    [Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    4. Trial <&wkey;194 — Instructions—Weight op Evidence.
    In a personal injury action, a charge that in assessing damages the jury should not consider the. fact that the scars on the leg and body of plaintiff present an unnatural and abnormal appearance is properly refused, being on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <&wkey;>194.]
    Appeal from District Court, Baylor County ; J. A. P. Dickson, Judge.
    Action by Maryland Dickey, by bis next friend, against the Gulf, Texas & Western Bailway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and J. A. Wheat, of Seymour, for appellant. D. A. Holman, of Seymour, for appellee.
   BUCK, J.

William Dickey, as next friend to his minor son, Maryland Dickey, filed this suit against the Gulf, Texas & Western Bail-way Company to recover damages for injuries received by the minor while' in the engine cab of one of defendant’s railway locomotives through the escape of steam resulting in a permanent impairment of his capacities. A trial before a jury resulted in a verdict and judgment in the sum of $1,500, from which the defendant appeals.

The undisputed facts show that appellee Maryland Dickey was a child eight years of age, and, together with another child, his half-brother, was in the engine cab of appellant’s locomotive with the knowledge and consent of one Moss, the company’s engine hostler, who had full charge and control of the engine, and was then engaged in the business of coaling and otherwise preparing the engine for present use by the company; that a part of this preparation consisted in wetting down the coal which was done by the use of a hot water hose connected with a valve near the floor of the cab room in the engine, which valve was called by some of the witnesses a “squirt valve.” It was also Moss’ duty to refill the boiler, and in doing this it was necessary to open a valve in an injector which would blow out the boiler or mud valve, and at the same time pump water into the boiler. In some unexplained way the valve to which the squirt hose was attached was left open, and, when Moss opened the injector for the purpose of refilling the boiler, the hot water and steam, being forced through the hose, scalded and seriously injured the plaintiff. While the evidence does not show that Moss expressly invited appellee into the cab, it nevertheless shows without dispute that he knew of his presence there and made no effort whatever to remove him.

Under these circumstances, while we do not find it is necessary to hold that appellant was necessarily liable in damages for all injuries received by the minor while in this place of danger, yet, in the condition of the record, we hold that the judgment of the trial court herein should be affirmed. In paragraph 8 of the court’s charge the following language is used:

“Or if you believe from the evidence that defendant’s employé in charge of said engine saw Maryland Dickey in the' cab of said engine, in connection with his tender age, and failed to put him out or guard him against danger, and after such discovery defendant’s employé in charge of said engine turned the injector and caused the steam and hot water to pass from the engine and burn and scald said Maryland Dickey, then the defendant would be liable in damages for his injuries, if any.”

The uncontroverted evidence shows that defendant’s employé Moss was in charge of said engine, and that he saw Maryland Dickey in the cab of said engine, and that he must have known and realized his tender age and lack of discretion, and that he failed to put him out or guard him against danger at the time and before he turned the injector and caused steam and hot water to pass from said engine and burn and scald said Maryland Didkey, and that said Maryland Dickey was injured seriously thereby. In effect, this is a peremptory charge of the court fixing the liability of the defendant upon an uncontro-verted state of facts. To this charge the defendant did not reserve a bill of exceptions in such form that this court can consider the same. See Gulf, Texas & Western Ry. Co. v. Wm. Dickey (No. 8011) 171 S. W. 1097, companion case to the one under consideration, opinion by Mr. Justice Dunklin, rendered October 31, 1914.

A group of assignments complains of various paragraphs of the court’s charge, all of which must be overruled because no proper bills of exceptions were taken to the court’s action in overruling appellant’s objections.

A number of other assignments complaining of the court’s refusal to give certain requested instructions are supported by proper bills of exceptions, but these are overruled because each of such requested charges made appellant’s liability to depend in some way or other upon the negligence of its employé, Moss, in opening the valve of the injector while the squirt valve was open, and in view of the fact that, in the absence of a proper bilí of exception, a defendant is presumed to have approved of the peremptory instruction given by the court fixing the defendant’s liability.

We think special charge No. 14 was properly refused because the charge given made it perfectly clear that plaintiff could recover'only to the extent of the impairment of his ability after he had reached the age of 21 years, and that special charge No. 15 was properly refused, for to tell the jury “that in assessing damages it would not consider the fact that the scars on the leg and body of plaintiff present an unnatural and abnormal appearance” would be on the weight of the evidence.

The evidence supports the verdict and judgment for the amount rendered, and for the reasons given the same is affirmed.
      (gx^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author:
CONNER, G. J.
      BUCK, J.

license: Public Domain

text:
    MEDLIN MILLING CO. v. MIMS.
    (No. 8051.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 5, 1914.
    Rehearing Denied Jan. 5, 1915.)
    1. Master and Servant <&wkey; 177 — Master’s Liability — Fellow Servants.
    A servant injured as the immediate result of the negligence of a fellow servant cannot recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Doc. Dig. &wkey;177.]
    2. Master and Servant <&wkey;217 — Master’s Liability — Assumption oe Risk.
    A servant, undertaking work with full knowledge of the usual way in which it has been done, assumes the risks of injury, unless relieved by the master’s promise to change the method of work so as to eliminate the risks.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574^600; Dec. Dig. &wkey;> 217.]
    3. Master and Servant <&wkey;221 — Master’s Liability — Assumed Risk — Promise to Remedy Defect.
    The rule that relieves a servant of an assumed risk, where the master promises to remedy the defect complained of, does not apply to cases of ordinary labor, not involving the use of dangerous and intricate machinery or any complicated method of performance, and the master need not promulgate formal rules therefor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <&wkey;-221J
    4. Master and Servant <&wkey;189 — Fellow Servants — ’“Vice Principal.”
    One who had no power to either employ or discharge plaintiff, but who was a kind of general foreman, whom plaintiff generally obeyed, was not a “Vice principal.” <
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. &wkey;>189.
    For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]
    5. Master and Servant <&wkey;279 — Action for Injuries — Evidence—Promise to Remedy Defect.
    In a servant’s action for injury, evidence held to show that the one whom he generally obeyed, and who, on his complaint of a defect and danger in the method of work, promised to try to have it fixed, was not a vice principal, on whose promise the servant might rely, so as to .preclude assumption of the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. <&wkey;>279.]

      6. Mastek and Servant <&wkey;-221 — Action for Injuries — Assumed Risk — Promise to Remedy Defect — Change in Method of Work.
    The promise to repair or remedy a danger, which will relieve a servant from the consequences of continuing in his employment with knowledge of the danger, necessarily implies that the work is to continue substantially as before, with the added safety furnished by the remedy, and does not apply where the promised change would be an abandonment of the defective appliance, so that where a servant complained of the danger of throwing bags of mill waste from a window, into a wagon below, and suggested a chute, and the master promised to install an apparatus which would do away with the hauling by wagon, and the servant continued work, he assumed the risk incident to that method of work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <®=^221.]
    7. Mastér and Servant <&wkey;-276, 278 — Action for Injury —Sufficiency of Evidence — Danger in Method of Work.
    In a servant’s action for injury from the negligence of a fellow servant in throwing a bag of mill waste out of a window into a wagon below, in which plaintiff was stowing it, evidence hold not to justify the conclusion that the master was negligent in respect to the method or plan of work, or that the plan was a contributing cause of injury.
    . [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-652, 954, 956-972, 976, 977; Dec. Dig. &wkey;276, 278.]
    8. Master and Servant &wkey;»130 — Master’s Liability — Method of Work.
    A master is not bound to adopt the best possible method of doing his work, but, in cases where a formal rule or plan is necessary at all, is only required to exercise due care to adopt and promulgate a reasonably safe rule for doing it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 264, 266, 276; Dec. Dig. <&wkey;-130.]
    9. Master and Servant &wkey;>264 — Action for Injury — Issues and Variance.
    In a servant’s action for injury, where a promise of an alleged vice principal was not declared upon as a promise to remove risk of danger from the negligence of fellow servants, it could not, after judgment, be given such effect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dee. Dig. &wkey;> 264.]
    Buck, J., dissenting.
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Action by W. A. Mims against the Medlin Milling Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Capps, Cantey, Hanger & Short and W. L. Evans, all of Ft. Worth, for appellant W. P. McLean and R. L. Oarlock, both of Ft. Worth, for appellee.
   CONNER, G. J.

Appellee instituted this suit to recover damages for personal injuries received while in appellant’s employ in hauling waste material gathered from the upper floor of appellant's mill. 1-Ie alleged that the method of doing the work was to gather and sack the material, and to then throw the sacks out of a window of the second story of the mill into a wagon placed against the building below to receive the sacks; that on the occasion in question, while in the wagon in a stooped position, and while engaged in adjusting some sacks which had been already cast down, one Walter Sheffield, another employs of appellant engaged in the second story, threw a sack of such waste material down and upon appellee without warning, and thus seriously injured him. The ground of negligence charged was that the method of doing the work was dangerous, and that appellant was guilty of negligence in not adopting a method reasonably safe; it being particularly alleged in this connection that:

“A reasonably inexpensive, safe, and proper method of doing the said work was to have a chute, attached to the said window and extending to the wagon, whereby the sacks would be permitted to slide down from the upper story into the wagon without risk of danger to the man working in the wagon below. That either this method or some other equally safe method should have been adopted by the defendant in the exercise of due care.”

Appellee further alleged that, prior to the accident in question, appellant’s vice principal, D. R. Montgomery, had promised to adopt the chute, or some other safe method of doing the work, by reason of which appel-lee was induced to remain in appellant’s service.

Appellant denied the allegations of appel-lee’s petition, and pleaded that his injuries arose out of one of the risks of his employment, and that the sole proximate cause of the injury was the negligence of one of ap-pellee’s fellow servants, Walter Sheffield.

The court submitted the issues thus outlined to the jury, which returned a verdict in ap-pellee’s favor for $2,500, and judgment was rendered accordingly.

The questions raised on this appeal arise out of the evidence, which, so far as material to the questions discussed, is as follows: Ap-pellee testified:

That he had been working for the appellant company a little over two years, driving a one-horse wagon for them, and delivering material and hauling things as required; that at the mill they had what was called a “head house,” in which was collected the sweepings, consisting of dirty chops, dirty meal and bran, and such as that, and that “they would sack that up and throw it out; of the window into a wagon below, and that it was hauled over to what they called the ‘feed mill,’ and there ground up into what they called stock feed. At the time I got hurt I had my wagon backed up under the window, * * * and I guess they had thrown down about seven or eight sacks into my wagon. The driver would always wait until they had thrown down a certain number of sacks, and then, in order to make room for more sacks, the driver would stack the sacks they had thrown down in the front end of his wagon. On the occasion of this accident, after they had thrown down seven or eight sacks, I got up there putting them in the front end of my wagon and was in a stooped position, just‘in the act of picking up a sack, when a sack they threw out of the window hit me in the small of the back, inflicting the injuries of which 1 complain. * * * They were supposed to give notice every time they threw down a sack, and they almost always did it. I had placed two or three sacks in the wagon, and was in the act of picking up another one, when they threw this sack down on me without any warning or signal whatever having been given. * * * I was not expecting a sack to fall at the time it fell. * * * I gave the man a bawling out for his carelessness in letting the sack fall on me without giving me any notice. * * * This man Sheffield came down and apologized to me for it in the presence of 10 or 12 men. * * * Sheffield worked up in the mill there. * * * I had spoken to Mr. Montgomery about this being an unsafe and dangerous way to get these sweepings down. The first time that 1 remember talking to him about it he and I were standing on the fifth floor of the mill. * * * And we discussed the matter that evening. I told him that I thought it was a dangerous proposition to throw that .stuff out of the window ; that they might have a careless man there some day; and that he might kill somebody, and he. said that Mr. Gladney had been talking about making a chute or cyclone to blow it over into the feed mill — all such stuff as that — and I told him that could be fixed very inexpensively by just putting a chute under the window and fastening it to the wall, and then backing the wagon up under the chute, but Mr. Montgomery wanted to fix it the other way. He said that they had it under advisement then as to how to fix it, and that they were figuring on having a cyclone to blow it over into the feed house, so that it would not have to be hauled at all. Mr. Montgomery told me that they were going to do it right away. Mr. Montgomery told me that he had taken up the matter with Mr. Glad-ney before that, and that he had promised to fix it, and that he would push the matter and see if he couldn’t get it fixed as soon as possible, and I told him if he did not he was liable to get somebody killed there some time, and Mr. Montgomery said that he realized that it was dangerous. The second time he talked to him about it, he was still of the same intention, about putting in a cyclone over there, and he said that he was going to see that it was fixed, or keep after them until they did fix it. They had a cyclone there to blow the shucks away from the feed mill, and they were going to construct one like that. The one they had for the shucks was an iron pipe about ten inches in diameter, with a wheel to create the wind to blow the shucks away from the feed mill. * * * The last conversation I had with Mr. Montgomery about the matter he told me that he was going to keep after them until they put it in — until they fixed a safe way to let the stuff down. * * * jy;r- Montgomery said if they did not put that in that they ought to put in something of that kind, and that he was going to keep after them until they' did it. I understood that he was to put in a chute or a cyclone, one or the other. I believe Mr. Montgomery to be a man of his word, and, when he told me that he was going to do that, I believed that he would do it. The last conversation I had with Mr. Montgomery about this matter, I do not suppose that it was more than two weeks at the outside before I got hurt, maybe not more than a week. I was pretty sure he would have it attended to when he told me that he would. X would not have continued to work there if I had not thought that they would have it fixed as he stated, or unless they had put a watchman there — a good, careful watchman. * * * I have forgotten just exactly how long I worked for the mill the last time I worked for them, but it was about a year or a year and a half. * * * I think I was on the little wagon a little more than a ye.ar, and during all that time I never saw any of these sacks of sweepings taken out any other way except through this window.”

On cross-examination, and in reference to the matter of his complaint, he testified that he had spoken to Mr. Gladney about it, saying:

“I cannot say exactly when it was that I talked with Mr. Gladney about it, but it was in the neighborhood of the time that I first talked with Mr. Montgomery about it. * * * I did not talk to him two minutes. I went to tell him it could be fixed inexpensively by putting a chute in, and he said they were figuring on having it fixed another way — figuring on having a cyclone to blow it over there. * * * Mr. Montgomery never did tell me which way they were going to fix it, but he said he would have it fixed. He did not say whether he would put up a chute or put in the cyclone there, but he said he would have it fixed; that was what he told me. I cannot give you his exact words, but he said that he would take up the matter with them [Gladney and Rogers] again and would have it fixed. He said that he liad already taken it up with them, and that they were going to build a cyclone to blow the stuff into the feed mill, so that there would be no more hauling. That is what Mr. Montgomery told me — that they were going to build a cyclone to blow it over there. * * * He and I were talking over the matter of putting a chute up there, and he told me that he was going to take the matter up with them and see that it was done. He did not say whether it was to be a chute or cyclone. We were discussing both, and he said they had been discussing the matter, and he would take it up with them and try to get them to do it. * ® ® The second conversation occurred some eight or ten days, possibly, before X got hurt. I told him [Montgomery] about the same thing that I had told him when we were up on the fifth floor there, and he told me that he had already taken up the matter with Mr. Gladney and the department there, and he said they kicked so much about improvements that he was almost afraid to suggest anything to them, but he said that they had already taken it up with them, and that they had promised to have it fixed — had promised him to have it fixed — Mr. Rogers and Mr. Gladney had promised him and Mr. Montgomery promised me. Mr. Montgomery told me that they said they would have it fixed in the way of a cyclone. That is the way they wanted to fix it. * * * The custom was, when they went up there to throw the sacks out of the window, for them to holler or give some signal to the man below. They would usually let a man sit in one of the windows, and he would call out to the man below, and the man below would take his position in front of his wagon and get out of the way. I understood that to be the custom there in throwing the sacks out of the window. * * * While I was moving the sacks to the front end of the wagon, I could not look up to see if any sacks were coming down. I was looking in the other direction and did not see what was going on up there. I thought they had some one looking out for me as they usually did. At the time I had my conversation with Mr. Montgomery about this chute, he was in charge of the milling department — -what is called a superintendent — and he employed and discharged men there. The miller is almost considered the highest man in the mill outside of the office. * * * Mr. Glad-ney employed me. You see the men in the warehouse [the department in which appellee worked] are under the supervision of the office. I don’t know how they consider it, but Mr. Montgomery never did hire me. * * * With the feed mill they had four departments there. The grain man employed his helpers to load and unload the grain; the miller employed his helpers in grinding the grain and sacking the bran and everything of that kind; and the shipping clerk had charge of the warehouse and the drivers. I got my job from Mr. Gladney and Mr. Rogers, each time, but whatever Mr. Montgomery suggested, I would do it. I always looked to Mr. Montgomery as the man in authority out of the office. I don’t know whether you would say that Mr. Montgomery had control oven my actions or not. He did not have charge of the teams, but they were under the control of the shipping clerk, and at that time Mr. Colly was the shipping clerk. I did not consider that I was working under Mr. Colly. Mr. Montgomery was over all the other departments, and 1 always looked to Mr. Montgomery as being the head man.- When I was shipping clerk, I always looked to Mr. Montgomery. Mr. Rogers was the head man of the mill, but he was not there regularly. I did not understand that Mr. Montgomery just had charge of his own department. I was on the wagon, but still as I understood it, Mr. Montgomery had charge of all the departments. * * * I knew that was a place of danger if they did not properly watch and care for it, but usually there were about four men up there, and they kept one of them on the watch to protect the man below, and I did not think I was in any danger, from the fact that I thought there was a watchman there, as there usually was, to notify the driver below when the next batch of stuff would be thrown down. If I had thought I was in any danger, I would not have been there.”

It is undisputed that Sheffield was a fellow servant of appellee, and that his negligence was the immediate cause of appellee’s injury; and it is further undisputed that appellee had full knowledge of the usual way in which the work had been done; and hence it must be conceded that appellee should be denied a recovery on the ground that his injury arose from one of the risks assumed by him, unless he is relieved from this general rule because of the promise of Montgomery, as alleged and as testified to by him. See G., C. & S. F. Ry. Co. v. Garren, 96 Tex. 605, 74 S. W. 897, 97 Am. St. Rep. 939; G., H. & S. A. Ry. Co. v. Eckols, 7 Tex. Civ. App. 429, 26 S. W. 1117; G., C. & S. F. Ry. Co. v. Brentford, 79 Tex. 619, 15 S. W. 561, 23 Am. St. Rep. 377; Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; Anderson v. Seropian, 147 Cal. 201, 81 Pac. 521; Purcell Mill & Elevator Co. v. Kirkland, 2 Ind. T. 169, 47 S. W. 311.

Generally speaking, the rule that relieves an employs of an assumed risk, where the master promises to remedy the defect complained of, does not apply to eases of ordinary labor, not involving the use of dangerous and intricate machinery, and not involving some complicated method'of performance. Must a herdsman promulgate orders that his riders shall get out of the way of a stampeding herd? Or a contractor that his servants digging a ditch shall work far enough apart to avoid striking one another with their picks? Perhaps the case before us is not so simple as the illustrations given, but it is not to be denied that the master, in the absence of knowledge to the contrary, has the right to assume that his employés are sentient beings — not mere automatons — who will exercise ordinary care for their own and their fellows’ safety, and the law does not devolve the duty upon the master of promulgating formal rules for ordinary labor involving no complexity. Boyer v. Eastern Ry. Co. of Minnesota, 87 Minn. 367, 92 N. W. 326; Crum v. Vernon P. & L. Co., 34 Ind. App. 253, 72 N. E. 193; Meador v. Railway Co., 138 Ind. 290, 37 N. E. 721, 46 Am. St. Rep. 384; Ky. & Ind. B. & R. Co. v. Melvin (Ky.) 104 S. W. 335; Stirling C. & C. Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837; Kistner v. Am. Steel Foundry, 233 Ill. 85, 84 N. E. 44; Webster Mfg. Co. v. Nisbitt, 205 Ill. 273, 68 N. E. 936; G., C. & S. F. R. R. Co. v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944; Levinson v. Lyon, 151 Ill. App. 284; Bowen v. C. & N. W. R. R. Co., 117 Ill. App. 9; Int. Packing Co. v. Kretowicz, 119 Ill. App. 488; Dauchy Iron Works v. Nevin, 130 Ill. App. 475; Rahm v. C., R. I. & P. R. R. Co., 129 Mo. App. 679, 108 S. W. 570; Baumwald v. Trenkman, 88 N. Y. Supp. 182; McGill v. Cleveland & S. W. Traction Co., 79 Ohio St. 203, 86 N. E. 989, 19 L. R. A. (N. S.) 793, 128 Am. St. Rep. 705; Corcoran v. Milwaukee G. Co., 81 Wis. 191, 51 N. W. 328; St. L., A. & T. R. R. Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; Brewer v. Tennessee Coal, Iron & R. R. Co., 97 Tenn. 615, 37 S. W. 549; 3 La Batt on Master and Servant, § 1115.

But regardless of this suggestion, and assuming that appellant had in fact adopted the method in use, as is perhaps to be inferred from the proof of the “usual custom,” let us consider the precise character of the promise relied upon in appellee’s behalf.

In the first place, it seems reasonably clear that the promise of Montgomery was not that of a vice principal, nor such as authorized unquestioned reliance thereon. Appellee testified:

That he was employed by Gladney and Rogers, and that “I do not know whether you would say that Mr. Montgomery had control over my actions or not. He did not have charge of -the teams, but they were under the control of the shipping clerk.”

No testimony was offered that Montgomery had power to either employ or discharge appellee, as was incumbent upon him to show, and the mere fact that Montgomery was a kind of general foreman, and that ap-pellee generally obeyed his instructions, did not constitute him a vice principal. Lantry-Sharpe Construction Co. v. McCracken (Sup.) 150 S. W. 1157.

On the contrary, the evidence as a whole, when carefully considered, shows that Gladney and Rogers employed appellee, and that these persons were the “higher-ups,” in ■whom authority to remedy the defect complained of was vested, and that Montgomery’s promise in its essence was to use his best efforts to “fix it.” To reiterate: Appellee testified:

“The first time I mentioned this matter to | Mr. Montgomery he said they were going to fix it. * * * He said that they had discussed the matter, and that he would take it up with them and try to get them to do it.”

The pronouns “they” and “them,” as here and elsewhere used in appellee’s testimony, undoubtedly referred to Mr. Gladney and Mr. Rogers, one or both; the testimony thus indicating that the determination of whether the danger in mind was to be relieved rested with Mr. Gladney and Mr. Rogers, the heads of the department, and not ■ with Montgomery. If so, Montgomery’s promise would in no event relieve appellee from the assumed risk, as in such case he evidently had no right to absolute reliance thereon.

But if, in aid of the verdict, we should give the contrary effect to several of appellee’s general statements that “Montgomery promised me to have it fixed,” it does not yet appear that the promise made brings the case within the principle invoked in appellee’s behalf. It was (quoting appellee’s specific words):

“That they would have it fixed in the way of a cyclone,” and not by constructing a “chute.” “Mr. Montgomery told me that they were going- to blow it |.the refuse material] over there through a cyclone. * * * That they were going to build a cyclone and blow it over there. * * * ”

As shown by the evidence, a “cyclone” was a contrivance, by means of which the refuse could be blown through a pipe from the place where gathered direct to the room or lfiace where it, was - utilized in making stock feed. This plan contemplated an entire abandonment of the method of removing or transferring the refuse in the old way by wagon, “so that [to use Mr. Montgomery’s language as related by appellee] there would be no more hauling.” Appellee could not reasonably have understood anything else. The promise to repair or remedy a danger which will relieve a servant from the consequences of continuing in his employment with full knowledge of the danger necessarily embodies the conclusion that the work is to continue substantially as before, with the added safety provided by the repair. The principle can have no proper application to a case where, as here, the change to be-made will work a complete abandonment of the defective tool, machinery, or plan, as the case may be, from which the hazard or danger arises. Considering the testimony as a whole, appellee must have understood that, if a “cyclone” was installed, he would be “out of a job,” so far as it was represented by a removal of the refuse by wagon, and that until such time the method thpn in use would be followed. Under such circumstances, appellee must he held to abide by the consequences of continuing his work with full knowledge of the danger of which he complained.

Moreover, we fail to see in what way negligence ean be affirmed of the plan or method assailed, or at least in -what way the “method” co-operated with the undisputed negligence of Sheffield, so as to become an efficient cause of appellee’s injury. Again recapitulating: Appellee thus described the method of doing the work in vogue at the time:

“They were supposed to give notice every time they threw down a sack, and they almost always did it. I would not have continued to work there if I had not thought they would have fixed it as he stated, or unless .they had put a watchman there — a good, careful watchman. * * * The custom was, when they went up there to throw the sacks out of the window, for them to holler or give some signal to the man below. They would usually let a man sit in one of the windows, and he would call out to the man below, and the man below would take a position in front of his wagon and get out of the way. I understood that to be the custom, and they would throw the sacks out of the window. * * * I thought they had some one looking out for me as they usually did. * * * If I had thought I was in any danger I would not have been there.”

This testimony, coupled with appellee’s statement of what he said to Montgomery about the danger involved, shows that the trouble was not in the plan — the method— usually followed. The danger feared was “carelessness” or negligence on the part of some employe who at some time 'might be engaged in throwing sacks out from above. Appellee says:

“I told him [Montgomery] that I thought it a dangerous proposition to throw that stuff out of the window, and that they might have a careless man there some day.”

Not a word was then said in objection to the method. It seems evident that, so long as the “usual method” of having a watchman who gave the required warning was followed, no danger was to be anticipated to an employé iii the wagon in the exercise of ordinary care for his own safety. The master is not bound by the law to adopt the best possible plan of doing his work. It is only required, in cases where a formal rule or plan is necessary at all, that the master exercise due care to adopt and promulgate a reasonably safe rule for doing the work involved. Welch v. Dieter, 136 Mo. App. 260, 117 S. W. 97; Railway v. Warner, 36 S. W. 118; Titus v. Railway, 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944. And in doing this he is-not bound to anticipate negligence on the part of an employe. See 26 Cyc. 1113, 1114, and Hussey v. Goger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 561, 502, 8 Am. St. Rep. 787. In the case last cited, in some respects very similar to the one before us, the court, among other things, said:

“The proof in this case does not show that the master omitted the performance of any such duty. He had provided a skilled and competent man to superintend and direct the work; a sufficient force, with all necessary and proper means and, appliances, to perform it; and a safe place, free from any inherent dangers, in which to carry it on. He was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of fellow servants, or for the negligent manner in ■which they used the tools or materials furnished to them for their work.”

So that, as already suggested, we fail to see any such inherent defect or danger in the method of work complained of in this case, when considered apart from the carelessness or negligence of fellow servants, as justifies the conclusion that appellant was either guilty of negligence in respect to the method or plan of the work, or that the plan was a contributing cause of appellee’s injuries. Brewer v. Tenn. Coal, Iron & Ry. Co., 97 Tenn. 615, 37 S. W. 549, and cases herein-before cited.

Considerable stress has been laid on Montgomery’s recognition of the danger and of his promise to fix it. The recognition is found in appellee’s first conversation with Montgomery, wherein he told Montgomery that “they might have a careless man there some day,” etc., and to which Montgomery replied that “he realized that it was dangerous,” etc. It is apparent, we think, that the danger in mind on the part of both ap-pellee and of Montgomery was not inherent in the method, but was that which arose out of the possibility of negligence that might arise some time on the part of some employs engaged in the second story. No complaint was made that any specific employs was in fact of negligent character, or that appellant was guilty of negligence in employing or retaining an employs of a negligent or careless character. All of this falls short of showing that Montgomery or plaintiff thought there was danger in the method apart from possible negligence of an employe, and which, as we have seen, the master was not bound to anticipate.

It is doubtless true that the master may contract against negligence, but Montgomery’s promise was not declared upon as such, and as such cannot now be given any effect.

We conclude on the whole that the evidence entirely fails to support the verdict and judgment in appellee’s favor; and it is accordingly ordered that the judgment be reversed and here rendered for appellant.

BUCK, J.

(dissenting). I cannot agree with my Brethren in the disposition of this case, nor in some of the conclusions reached in the majority opinion. In the first place, I cannot concur in the statement contained in said majority opinion to the effect that “not a word was said in objection to the method” (of doing the work). It is true that, so long as those employed in the throwing of the sacks out of the window to the wagon below were careful to give the requisite warning to the appellee below in time for him to remove himself from a place of danger before the sack fell, it was not a dangerous method of performing the business of the master. But that there was a strong probability that the one or ones accustomed to give such warning would, through some momentary forgetfulness, fail to do so, and thereby endanger the life or subject the person of the driver below to injury, and that such danger arose from the inherent manner of performing the work, was apparent to and recognized by both appellee and the vice principal of appellant, Mr. Montgomery, is shown by the fact that on more than one occasion appellee complained to said Montgomery of the dangerous method of performing the work, calling the attention of said Montgomery to the extreme probability of the occurrence of just what did occur, and “that he was likely to get somebody killed there some time, and Mr. Montgomery said that he realized that it was dangerous.” (S. E. 7.)

Since the vice principal realized the dangerous . method of performing this service, and that an entirely safe method could be employed at a very moderate cost, the familiar rule of law that the master is not bound to presume that a fellow servant of an employs will be negligent is not applicable. In this case he did recognize the strong probability of a fellow servant failing to give the required warning, and that serious injury would result to appellee or others engaged in receiving the sacks from the window above. That appellee did not assume the risk incident to this method of performing the work is shown beyond question. Mr. Montgomery had promised to remedy the defect, and had stated that Mr. Gladney, one of the “higher-ups,” referred to in the majority opinion, had also promised to have a safer .method invoked and employed. Appellee had a right to rely on this promise for a reasonable length of time. He testified that he would not have continued in this part of his employment but for the reliance on such promise.

In spite of some language in the majority opinion seeming to question Mr. Montgomery’s authority to bind the defendant by such promise, and seeming to negative the idea of his being a vice principal, it is believed that, so far as the record discloses, he undoubtedly was vested with such authority. The plaintiff alleged in his petition that said Montgomery was defendant’s vice principa], and this allegation is nowhere denied in the pleadings of defendant nor contradicted by any evidence offered by it. The case was tried and submitted upon that theory, and no assignment of error is predicated upon any error of the trial court in this respect. Therefore it is justifiable to assume that defendant admitted the truth of such allegation.

All these questions involving the negligence vel non of the defendant in failing to use ordinary care to provide plaintiff a safe place to work, the giving or not of the promise by Montgomery to remedy the defect complained of, the contributory negligence or not of the plaintiff in continuing in such employment after the giving of such promise, etc., were fully covered in the charge of the court, and not an assignment of error is offered complaining of the giving of any charge or the failure to give any charge, save the peremptory instruction submitted on behalf of defendant.

That appellee’s fellow servant, Sheffield, was negligent, cannot be gainsaid, but the jury found, as shown by their verdict, that the defendant was also guilty Qf negligence in failing to furnish plaintiff a reasonably safe place in which to work, and that such negligence was the proximate cause of the injury complained of. It is then the well-recognized rule of law that, if the negligence of a fellow servant and the negligence of the master are both the concurring proximate causes of an injury to a servant, the master is liable.

It is regretted that lack of time prevents a fuller discussion and investigation of these matters upon which this dissenting opinion is predicated, but the writer is forced to content himself with these observations. It is believed that the action of the trial court in refusing to give the peremptory instruction asked should be sustained, and the judgment affirmed.
      cgr^Far other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    STEPHENVILLE, N. & S. T. RY. CO. et al. v. WHEAT.
    (No. 8015.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Master and Servant <©=>257 — Injury to Servant — Existence oe Relation — Petition.
    A petition in an action against a railroad company and its contractor to construct a line of road for injuries to an employs which alleges that the company and contractor jointly constructed the road, that the employé was employed by both, and that the contractor was but an agent of the company in the doing of the work, states a cause of action against the company and the contractor as against a general demurrer, though the principle of respondeat superior does not apply to a mere agent not an active participant in a wrong made to constitute the foundation of an action.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 813, 814; Dec. Dig. <©=> 257.]
    2. Pleading <©=>218 — Petition—Construction.
    The court, in determining the sufficiency of a petition attacked by general demurrer, must indulge every reasonable intendment in favor of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. <©=>218.]
    3. Damages <©=>143 — Personal Injuries — Petition— Sufficiency.
    A petition for personal injuries which alleges that plaintiff was with great violence hurled from the top of a tank and fell to the ground, 30 feet below, and that by reason thereof he was rendered unconscious, and his back broken or greatly crooked, and was injured in the small of his back and paralyzed from his hip down, and that the injuries were permanent, and rendered him incapable of doing any work or of earning money in any capacity that he ever had, informs defendant of the nature of the injuries as against a special exception that the description is too general.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. <©=>143.]
    4. Appeal and Error <©=1040 — Harmless Error — Rulings on Pleadings.
    Where defendant, when sued for a personal injury received by plaintiff, did not show that he was surprised by evidence of the injuries or misled by the allegations of the petition describing the injuries and did not question the extent of the injuries or the amount of the verdict, error, if any, in overruling special exception to the petition because the allegations descriptive of the injury were too general was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <©=> 1040.]
    5. Masteií and Servant <©=264t — Injury to Servant — Issues, Proof, and Variance.
    The variance between a petition in an action for injuries to an employé alleging that, while the employé was standing on a board extending from the tender of the engine to the top of a water tank on a car, the engine started, throwing him off and to the ground below, and the proof that the plank extended from the first tank back, of the engine to the second tank on the car, was not fatal, where defendant was not surprised thereby.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <©=> 264.]
    6. Appeal and Error <©=>501 — Questions Reviewable — Instructions—Record.
    Objections to instructions given and refused will not be considered where the record does not show that exceptions were taken as required by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. <©= 501.]
    7. Appeal and Error <©=3-719 — Questions Reviewable — “Error Apparent op Record’’ —“Apparent.”
    “Error apparent of record” within the statute requiring consideration of such an error without an assignment is error ascertainable on looking at the face of the record, and the question of the sufficiency of the evidence to sustain the verdict cannot be considered as error apparent of record, for the court must search the statement of facts and consider the conflicting contentions of opposing counsel to determine, not only what the evidence is, but also as to what are the proper inferences to be drawn therefrom; the word “apparent” meaning clear or manifest to the understanding; plain; evident; obvious; proper to the mind or eye.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <©=>719.
    For other definitions, see Words and Phrases, First and Second Series, Apparent; Error Apparent.]
    8. Appeal and Error <©=>169 — Questions Reviewable — Waiver.
    Where the trial court had jurisdiction of the subject-matter and of the parties, and the judgment was one that could be rendered under the pleadings, error, to be available on appeal, must have been properly called to the attention of the trial court, so that it might have cured the error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. <©=> 169.]

      9. Appeal and Eeeob <©=^882 — Questions Reviewable — Invited Bkbok.
    A party requesting instructions submitting issues to the jury may not complain of the refusal of a subsequent requested peremptory instruction in his favor because the error, if any, in refusing the peremptory instruction was invited.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <§=> 882.]
    10. Appeal and Eeeob <®^500 — Questions Review able — Pebsumptions.
    Where the court on appeal cannot determine from the record whether a peremptory instruction was refused because the party requesting it had previously requested instructions submitting issues to the jury, or whether the peremptory instruction was first presented, refusal of the peremptory instruction will not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 500.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by Lester Wheat against the Steph-enville, North & South Texas Railway Company and others. From a judgment for plaintiff, defendants separately appeal.
    Affirmed.
    E. B. Perkins and D. Upthegrove, both of Dallas, Marshall Ferguson, of Stephenville, and Harry P. Lawther, of Dallas, for appellants. Goodson & Goodson, of Comanche, Woodward & Baker, of Coleman, and Theodore Mack, of Ft. Worth, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

During the year 1911 Thompson & Scott, a firm composed of J. W. Thompson and John R. Scott, were engaged as contractors in the construction of a line of railway for the appellant railway company. Appellee was employed by said firm as an engine watchman in the railway yards at Maxwell, in Comanche county, apd on the night of September 23, 1911, in the course of his duty, was endeavoring to pass from the tender of a locomotive standing upon one of the tracks in the yards back and over some water tanks situated upon a flat car attached to the engine. As he alleged and testified, while in the act of traversing a board laid upon the top of the water tank for that purpose, another employé of the contractors suddenly and with violence started the engine in such manner and with such force as to throw appellee from the board mentioned off of the car, whereupon he fell into the bed of a dry creek some 30 feet below, thereby receiving very serious injuries. Later this suit was instituted against both the railway company and against the contracting firm of Thompson & Scott, ap-pellee alleging, among other things, to the effect that both appellants were jointly engaged in the construction of the railway, and that at the time of his accident he was engaged in the performance of service for both of them.

The trial before a jury resulted in a verdict and judgment in appellee’s favor against both the railway company and Thompson & Scott for $15,000, with a judgment for the same sum in favor of the railway company on its cross-plea against the firm of Thompson & Scott and John R. Scott, who had been served personally. The railway company and Thompson & Scott have prosecuted separate appeals. We will first dispose of the appeal of the appellant last mentioned.

This appellant first insists by appropriate assignment that the court erred in overruling its general demurrer to the appellee’s petition. It is insisted that it is bad on general demurrer, for the reason that it is therein alleged that Thompson & Scott were but the agents and servants of the railway company in the performance of the work of constructing the railway; the contention being that in such event the railway alone was responsible. While the petition contains allegations as imputed, and while it seems logically true and has support in authority (Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304) that the principle of respondeat superior has no application to a mere agent or servant not an active participant in a wrong made to constitute the foundation of an action, yet we find that the allegations of appellee’s petition, upon which the contention under consideration is predicated, were evidently made in anticipation merely of the defense in support of which all the force of both appellants was directed; to wit, the defense that Thompson & Scott were independent contractors for whose act and negligence the railway company was in no wise responsible. The petition otherwise, however, when construed in the light of the rule that on general demurrer every reasonable intendment is to be indulged in its favor, substantially alleges that the appellant railway company and the contracting firm were jointly engaged in the construction of the road, and that appellee was employed by both defendants, which, if true, as we must assume for the purposes of the demurrer, would certainly entitle appellee to relief. The assignment relating to the general demurrer will therefore be overruled.

This appellant also complains of the action of the court in overruling its special exception. The exception is to the effect that the plaintiff’s allegations descriptive of his injury are too general and indefinite. The allegations thus attacked are as follows:

“Plaintiff was suddenly and with great violence, and without any notice by which he could protect himself, hurled from the top of said tank off of said tank car, and fell into the bed of a dry creek, about a distance of 30 feet, and by reason thereof was rendered unconscious, and had his back broken or greatly crooked, and was severely hurt or injured in the small of his back, and was totally paralyzed from his hip down to and including his feet.”

It was further alleged that the injuries specified are incurable and permanent and rendered appellee incapable of doing work of any kind or of earning money in any capacity that he ever had, and, on the whole, we think the allegations were sufficiently specific to inform appellant of the nature of the injuries received. Too great particularity in description is not to he expected; the purpose of the law being to fairly apprise a defendant of what he will be called upon to meet. Many authorities might be cited in support of the court’s ruling. We will, however, refer to a few of them only. See Railway v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010; Rapid Transit Ry. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 486; Railway v. McMannewitz, 70 Tex. 73, 8 S. W. 06; Railway v. Mitchell, 72 Tex. 171, 10 S. W. 411; Railway v. Coffman, 160 S. W. 145.

We will add that, if it could be said that there was error in the ruling, it is not made to appear that appellant in any way was prejudiced thereby. In no assignment presented is it suggested that appellant upon the trial was surprised by the evidence relating to appellee’s injuries, or misled by the allegations under consideration, nor is there any assignment that Questions in any way the extent of appellee’s injuries or the amount of the verdict and judgment. So that in no view of the assignment under consideration would we feel authorized to reverse the judgment because of the court’s ruling. The assignment, accordingly, will be overruled.

In appellant’s fifth assignment it is insisted that the court should have given a requested charge for an instructed verdict, and in the eighth assignment that the court erred in admitting certain of appellee’s testimony, on the ground of a variance between allegations of the petition and the evidence. The insistence as developed in the statement and argument under these assignments is that, inasmuch as it was alleged that the board from which appellee fell extended from the tender of the engine to the top of the first tank upon the water car, instead of from the first tank .back to the second tank on the car, as he testified, the variance is fatal. We fail to see in what way the variance indicated was misleading or prejudicial to any right appellant had. The record fails to show that in any way appellant was surprised by the variance indicated, or that it could materially affect the consequences of the engineer’s negligence in suddenly starting the engine, as appellee testified he did. The fifth and eighth assignments are accordingly overruled. McClelland v. Smith, 3 Tex. 210; Brown Candy Co. v. Johnson, 159 S. W. 684, 685; W. U. Tel. Co. v. Hinkle, 3 Tex. Civ. App. 518, 22 S. W. 1004 ; Krueger v. Klinger, 10 Tex. Civ. App. 576, 30 S. W. 1087; Jones v. Meyer Bros. Drug Co., 25 Tex. Civ. App. 234, 61 S. W. 553; Traction Co. v. Court, 31 Tex. Civ. App. 146, 71 S. W. 779; Houston Light Co. v. Hooper, 46 Tex. Civ. App. 257, 102 S. W. 133; Haralson v. Traction Co., 53 Tex. Civ. App. 253, 115 S. W. 876; May v. Pollard, 28 Tex. 677; Smith v. Shinn, 58 Tex. 3; Hays v. Samuels, 55 Tex. 503; Lasater v. Van Hook, 77 Tex. 655, 14 S. W. 270; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Phipps v. Willis, 11 Tex. Civ. App. 186, 32 S. W. 801.

The remaining assignments of this appellant are the third, fourth, sixth, and seventh, which are objected to by appellee, and will be disregarded, inasmuch as they present objections to clauses of the court’s charge and to the action of the court in refusing special charges requested, for the reason that the record fails to show that the objections to the court’s charge were presented before its delivery to the jury, and fails to show that exceptions were taken to the action of the court in refusing the special charges, as required by act approved March 29, 1913 (Gen. Laws, 1913, p. 113). See Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Wadsack, 166 S. W. 42; Mut. Life Ass’n v. Rhoderick, 164 S. W. 1067; Railway Co. v. Tomlinson, 169 S. W. 217.

We are of the opinion, therefore, that, as assigned, no error in the judgment in appel-lee’s favor against Thompson & Scott has been presented which will authorize a reversal. The judgment as against this appellant will accordingly be affirmed.

This brings us to the more difficult question of what shall be done with the appeal of the Stephenville North & South Texas Railway Company. Aside from assignments complaining of errors in the court’s charge, which are not now available for want of a showing of the proper objections in the court below, and 'an assignment complaining of an argument on the part of appellee’s counsel, which we do not think should cause a reversal, the vital question presented by the assignments of error is whether the court should have given the peremptory instruction directing a verdict in favor of the railway company, on the grounds that the undisputed evidence shows that appellee at the time of his injury was a servant of, and subject to the control of, an independent contractor alone, and that the act of negligence made the foundation of the action against the railway company was the act alone of the independent contractor. That the act of the person operating the engine at the time-constituted negligence which was the proximate cause of appellee’s injuries is not questioned by any assignment presented by either appellant, nor has either appellant questioned the serious character of the appellee’s injuries, or the amount of the verdict and judgment. So that the disposition of the appeal' now under consideration must depend upon, a proper disposition of the first specification-of error or group of assignments and propositions all going to the single question of whether the court erred in refusing to give the peremptory instruction indicated. But, before going to the merits of the questions involved, we must first dispose of an objection made-by appellee to the assignment to be considered. It is objected to on tbe ground that the record fails to show that any exception was taken to the act of the court in refusing the peremptory instruction. We find this to be the fact, and we have a number of times, as, indeed, in the present case, held that for an error in refusing charges to be available the record must show that the action of the court was duly excepted to as provided - by the act approved March 29, 1913, and as held by us in authorities hereinbefore cited in disposing of the appeal of Thompson & Scott.

In Owens v. Corsicana Petroleum Co., 169 S. W. 192, the Court of Civil Appeals for the Seventh District held that the act of 1913 did not apply to the action of the court in giving a peremptory instruction in favor of one of the parties, but no authority is cited in support of the conclusion reached by that court, and we think the case should be limited to its own facts, which are that the peremptory charge given was oral, as appears from the original briefs in the case, and hence not submitted to counsel for examination and objection, as required by the act of 1913. In such case it may well be held that the legislative act would not be applied; for the act expressly provides that opportunity shall be given counsel to examine the court’s charge and to present objections thereto before it is given to the jury, and, when such opportunity is denied by the trial court, an appellate court doubtless is not without power to grant relief. Nor do we wish to be understood as holding that the act applies to mere directions to the jury incidentally arising during the course of a trial, which are not required by the law to be in writing, and which do not relate to the law of the case. But here the charge was in writing, and no lack of opportunity to properly except to its refusal appears. The statute is explicit. It says:

“The ruling of the court in giving, refusing, or qualifying of instructions to the jury shall be ■ regarded as approved unless excepted to as provided for in the foregoing article.” Laws 1913, p. 114.

The act is not only explicit, but it is also mandatory in its terms. Nor is it limited to any particular character of charge. A peremptory charge to end the controversy by a verdict on the merits in favor of one of the litigants seems certainly within the broad terms of the statute, and in its essence is a concrete statement on the part of the court of the controlling law of the case. In this state it has frequently been held that, to be available on appeal, exception must be reserved to ■errors in the court’s general charge, as well also as to the refusal upon the part of the trial court to submit certain special issues. See Roberds v. Laney, 165 S. W. 114; Ross v. Jackson, 165 S. W. 513; Railway Co. v. Galloway, 165 S. W. 546; Railway Co. v. Crutchfield, 165 S. W. 551; Saunders v. Thut, 165 S. W. 553; Johnson v. Hoover, 165 S. W. 900; Railway Co. v. Wadsack, 166 S. W. 42; McKinzie v. Imperial' Irr. Co., 166 S. W. 495; Railway Co. v. McCall, 166 S. W. 925; Railway Co. v. Sharpe, 167 S. W. 814; Lester v. Hutson, 167 S. W. 321; Ford Motor Car Co. v. Freeman, 168 S. W. 80; Lakeside Irr. Co. v. Buffington, 168 S. W. 21; Taylor v. Butler, 168 S. W. 1004; Heath v. Huffhines, 168 S. W. 974; Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Saunders Live Stock Commission Co. v. Kincaid, 168 S. W. 977; Railway Co. v. Mallard, 168 S. W. 994; Railway Co. v. Brown, 168 S. W. 866; Railway Co. v. Tomlinson, 169 S. W. 217. While in none of the eases cited does it appear that the court was called upon to act ¡upon the giving or refusing of a peremptory instruction, it seems that the rule in the federal courts under their practice acts, from which it is said the act of 1913 was taken, is applied without distinction between peremptory and other instructions. Mexico Int. Land Co. v. Larkin, 195 Fed. 495, 115 C. C. A. 405; Emanuel v. Gates, 53 Fed. 772, 3 C. C. A. 663; Potter v. U. S., 122 Fed. 49, 58 C. C. A. 231; Robinson v. Van Hooser, 196 Fed. 620, 116 C. C. A. 294; Gering v. Leyda, 186 Fed. 110, 108 C. C. A. 222; Sutherland v. Round, 57 Fed. 467, 6 C. C. A. 428. So that we see no satisfactory reason for holding that the charge or instruction under consideration is not within the purview of the act of 1913, or why we should, as to it, disregard the mandate of the Legislature, to the effect that, in the absence of a proper exception, the action of the court in refusing it shall be regarded as approved. Appellee invokes this act, and it is his right, as we conceive it to be, to have ■it enforced.

But it is urged that the question presented by the assignment under consideration is fundamental, or “error apparent of record,” which we are required under the statute to consider without an assignment and regardless of the act of 1913. It seems that this contention has support in the decisions of several of our Courts of Appeals, which, at least apparently, hold it to be fundamental error to render a judgment without evidence to support it, and that such error requires a review of the record on appeal without any specific assignment of error. See Hough v. Fink, 141 S. W. 147; Hahl v. Kellogg, 42 Tex. Civ. App. 636, 94 S. W. 389; T. & P. Ry. Co. v. Hightower, 12 Tex. Civ. App. 41, 33 S. W. 541. But we think the cases of Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, by our Supreme Court, and City of Beaumont v. Masterson, 142 S. W. 984, Walker v. T. & N. O. R. Co., 51 Tex. Civ. App. 391, 112 S. W. 430, and Webb Heirs v. Kirby Lumber Co., 48 Tex. Civ. App. 543, 107 S. W. 581, by the Court of Civil Appeals for the First District, are of contrary effect and supported by better reason. Webster defines the word, “apparent” thus:

“Clear or manifest to the understanding; plain; evident; obvious; appearing to the eye or mind.”

And our Supreme Court, in the ease first cited, after quoting the above definition with approval, further said:

“This does not mean that an error which can be ascertained by looking into the record and considering the evidence may be considered without an assignment, for that would include every error which can be considered at all. Nothing can be considered as an error which cannot be made apparent by an examination of the record. Therefore the language of the statute must be given that construction which will make it consistent with its requirements in other respects. The language ‘apparent upon the face of the record’ indicates-that it is to be seen upon looking at the face of the record (that is, the assignment itself). The fact pointed out by it must show a good and sufficient ground for the court to interpret to prevent injustice being done to one of the parties. Perhaps the best expression is that it must be a fundamental error,' such error as, being readily seen, lies at the base and foundation of the proceeding and affects the judgment necessarily.”

A reading of the opinion perhaps does not make very clear the precise contention in that case. It was, however, as we infer, that the -charge of the court complained of was unauthorized because of the state of the undisputed evidence, and in speaking of the assignment the court further says:

“If we take the first assignment (the one there under consideration) in its terms, there is not apparent upon the face of that record any one of the things pointed out in the propositions under it. By an examination of the record it might bo found that the facts existed as claimed in the propositions, but they are not manifest, and not evident, not obvious, without an examination and weighing of the evidence to determine whether or not the assignment' is well taken.”

In the case of City of Beaumont v. Master-son, above, error “apparent of record” was complained of on the ground “that the undisputed evidence shows,” etc., and the court, in disposing of the contention, said:

“It will be clearly seen that, in order to determine whether the error exists as complained of, it will require an examination of almost the entire record, including the pleadings and evidence contained in a very lengthy statement of facts.”

It was held that this would not he done, and that the error complained of was not one “apparent upon the face of the record.”

The case of Walker v. T. & N. O. R. Co., supra, was one wherein complaint was made of a peremptory instruction to return a verdict for the defendant. The assignment was disregarded on the ground of an insufficient statement, the court stating, among other things, that:

“In order to sustain the assignment we would be compelled, with no assistance from the brief, to go through the entire record, to be able to understand the state of the evidence upon the other issues. The assignment so presented cannot be considered.”

These eases appear to illustrate the difficulties of appellant’s contention in the present case; for, to authorize the trial court in giving a peremptory instruction, as has often been decided, the evidence must be of such •character as that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. And for the purpose of drawing the conclusion sought by the appellant in this case, we must of necessity search the statement of facts and consider the conflicting contentions of opposing counsel in order to determine, not only what the evidence is, but also as to what are the proper inferences to be drawn therefrom.

To adopt this as a rule of appellate procedure is to adopt a rule at variance, as it seems to us, with the trend of all the later legislative practice acts, and of the rules of our Supreme Court, and of the great majority of the decisions of our own and of other states, to the effect that, if it appears that the court has jurisdiction of the subject-matter and of the parties, and that the judgment is one that could be rendered under the pleadings, then an error in the proceedings, to be available on appeal, must appear to have been properly called to the attention of the trial court, to the end that such error may there he cured, if it can be done, without going through the expensive, tedious, and long-delaying processes of appeal. 2 Cyc. 677, 660, 690.

For yet other reasons appellant is not in a favorable attitude to require a consideration of the assignment of error under consideration. The record discloses that, in addition to the peremptory instruction to the refusal of which complaint is urged, appellant also requested a number of other special charges submitting one or more of the issues raised by the pleadings. The court also submitted a general charge, and no objection to the refusal of the court to give the special charges last mentioned, nor objection to the court’s general charge, has been made that we are authorized to consider under the act of 1013. We cannot say from the record that the peremptory instruction was requested prior to the request to give the other special instructions, and it has been held that, where a litigant requests conflicting instructions, he cannot complain that the court gave the one and rejected the other. For all that we can1 legally say, from the record before us, the court may have refused the peremptory instruction on the ground that appellant requested instructions inviting the submission of the issues to the jury. See Mutual Life Ass’n v. Rhoderick, 164 S. W. 1067, and Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991. In the case last cited, while considering the action of the court in refusing a requested peremptory instruction, this court said :

“The court gave a general charge submitting the plaintiff’s cause upon the issue of negligence mentioned, and also upon defendant’s pleas of contributory negligence, all said issues being submitted as disputed issues, and the record fails to show that any objection was urged by the defendant to any portion of that charge. If, as provided by the amended statutes, a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them. And, according to a well-established rule o£ decisions in force before the enactment of that statute, if a party requests two different instructions upon the same issue, and one of them is given, he cannot complain of the refusal of the other. The evident purpose of the act referred to was to require the trial judge to be given the full benefit of any objections to his charge to the jury that might be urged upon appeal, to the end that the charge, as finally submitted to the jury, may be so framed as to avoid such objections.”

We approve what we there said. If a defendant upon a trial, after the introduction of the evidence, is of opinion that such evidence does not authorize a recovery in the plaintiff’s favor, he should, to be in harmony with our amended practice act and rules, request a peremptory instruction, or otherwise call the trial court’s attention to the insufficiency of the evidence, to the end that the plaintiff may then correct it, if it can be corrected. But if he remains silent, and himself enters upon the trial by the introduction of his evidence, and by charges requests the submission of issues involved, and approves the court’s charge submitting such issues, we think it should be held that he, in effect, has assumed that the evidence is such as to require the submission of the case to the jury upon proper charges, and that thereafter on appeal he will not be heard to insist otherwise. See Illinois Cent. R. Co. v. Larson, 152 Ill. 326, 38 N. E. 784; 46 Cent. Dig. § 345, and authorities there cited. We conclude that ap-pellee’s objections to the assignment of error under consideration must be sustained.

No complaint is made of the judgment in favor of the appellant railway company over against Thompson & Scott, and hence the foregoing conclusions authorize, if they do not require, an affirmance of the judgment below in its entirety, and the majority conclude that this should be done without further consideration.

The writer; however, wishes to add that he, in fact, has considered the evidence, and would be inclined to the view, if we were called upon to determine its effect, that the evidence as a whole tends to show such cooperation between appellants in the work of construction, and particularly in the movement of the locomotive and car immediately connected with appellee’s injury, as to take appellee’s case out of the general rule of non-liability invoked by appellant, and to bring it fairly within the spirit of the following cases, viz.: Orient Consol. Pure Ice Co. v. Edmundson, 140 S. W. 124; Burton v. G., H. & S. A. Ry. Co., 61 Tex. 526; Wallace v. So. Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; Salliotte v. King Bridge Co., 122 Fed. 378, 58 C. C. A. 456, 65 L. R. A. 620; Thomas v. Harrington, 72 N. H. 45, 54 Atl. 285, 65 L. R. A. 742; Jacobs v. Fuller, 67 Ohio St. 70, 65 N. E. 617, 65 L. R. A. 833; Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119; L. & N. Ry. Co. v. Tow (Ky.) 63 S. W. 27, 66 L. R. A. 941, and exhaustive notes to these cases; Davis v. Came-Wyman Co. (Tenn.) 150 S. W. 545; Judson & Little v. Tucker, 156 S. W. 225; and other cases cited in appellee’s brief on this point. If so, the court in any event did not err in refusing the peremptory instruction.

But, regardless of this individual view, it is ordered that all assignments of error be overruled, and that the judgment below bo in all things affirmed, for the reasons stated.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gx^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes