author: WADTHALL, J.

text:
    BIGGS v. KEY.
    (No. 926.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.
    Rehearing Denied Feb. 27, 1919.)
    Partnership <⅞^>328(3) — Accounting — Evidence — -Sueficiency.
    In a suit to settle partnership transactions in feeding and fattening hogs, the partners to share equally in the expenses and profits, an agreed statement of facts held not sufficient to show that any profits had been made.
    Error from Ward County Court; Geo. H. Tucker, Judge.
    Action by Jessee Key against S. V. Biggs. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Ben. Palmer, of Pecos, for plaintiff in error.
    Garrard & Baker, of Midland, for defendant in error.
   WADTHALL, J.

Jessee Key brought this suit in the county court of Ward county against S. Y. Biggs for a settlement accounting of partnership transactions between them, in which it was agreed in writing, in substance, that a partnership relation was then entered into between- them, and that a certain number of hogs then owned by Key were to be put into the partnership; that the partnership would borrow money and buy a certain number of other hogs and the two lots to be shipped from Barstow, Ward county, to Cherokee county, and there fed and fattened for the market, each partner sharing as agreed, equally, in the expenses and profits. Key alleged there would be due him, on settlement of the partnership transactions which had not been had, the sum of $500, for which he sued. Defendant admitted the execution of the contract and the partnership, alleged the compliance with the partnership arrangement, submitted a statement, and alleged same to be a correct account of the partnership transactions, and alleged that no profits were realized, but a partnership loss of several hundred dollars was sustained. Biggs also filed a cross-action to which an exception was sustained, and, there being no error assigned thereto, same will not be further mentioned. The trial with the aid of a jury resulted in a verdict and judgment in favor of Key, in the sum of $310, from which this appeal is prosecuted.

The case is submitted upon an agreed statement of the facts. We think we need not copy the statement here. It snows, briefly stated, that Key owned and put into the partnership 100 head of hogs which he owned individually, and that Key and Biggs borrowed of the bank on their joint note $620, with which they purchased for the partnership 136 head more of hogs and shipped the 236 head from Ward county to Cherokee county to be there fattened for the market. It was stated in the partnership agreement that Key was to pay on tljie 136 head such amount as an amount in weight of the 136 head purchased, added to the weight of the 100 head owned individually by Key, would aggregate one-half the weight of the entire lot, and that Biggs was to' pay such amount of the purchase price of the 136 head purchased as would aggregate one-half the weight of the entire lot of 236 head to be shipped and at the time shipped from Ward county to Cherokee county. The hogs were to be run on acorns and fed such other feed as was necessary to fatten them for market, to be under the care of Biggs; Biggs to hire a man to look after, feed, and care for them. Key and Biggs were to share equally in the expense of shipping, corn, and feed, and, when the hogs were sold, each to share one-half the profits. After all expenses were deducted from the proceeds of the sale, out of one-half remaining to Biggs, he agreed to pay his pro rata part of the purchase price of the 136 head of hogs (purchased of Neeley); and Key, out of the one-half of the proceeds remaining to him, agreed to pay his pro rata part of the purchase price of the 136 head purchased, according to the weight of the hogs in Ward county at time of shipment. The weight of the 100 head of the Key hogs is not given in the agreed statement. The weight of the entire 236 head, when shipped fromi Ward county, was 15,535 pounds. Key went with.the shipment, and the statement shows several items of expense incurred and paid by Key, before the hogs were shipped and during the shipment; but the amounts are nowhere shown, except the sum of $60 paid by Key to Neeley. The agreed statement of the expenses of the keep of the hogs after reaching Cherokee county and up to the time they were sold aggregates $654.17. The entire lot of hogs sold on the market for $903.75. The items of the expense account were for feed for the hogs, help hire, teams used in hauling feed, all of which were either furnished or paid for by Biggs. The statement further shows that Biggs paid the entire said partnership note at the bank, amounting to the sum of $650. If the entire lot of hogs cost $1,346.17, as agreed, and sold for $903.75, as agreed, a loss is shown of $460, of which loss, Key owning a one-half interest, discharged only $60.

In order to sustain a recovery by Key, the agreed facts must show a profit, and, in that event, the amount of. his recovery would be the difference between his one-half interest in the hogs and the profit shown. In brief, Key’s one-half interest in the hogs sold for $451.87½, charged with an indebtedness, as well as we can determine from the agreed statement of facts, of $460.32, paid by Biggs.

The verdict and judgment rendered are not sustained by the agreed statement, and for that reason the case is reversed and remanded. !
      ®=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TAXLOR, J. PHILLIPS, C. J.

license: Public Domain

text:
    GAMMAGE v. GAMER CO.
    (No. 25-2649.)
    (Commission of Appeals of Texas, Section A.
    Feb. 19, 1919.)
    1. Master and Servant <®=>297(4) — Injury to Servant — Verdict—Conclusiveness.
    Where the court submitted the issues, including that of defect in machinery, in a general charge so framed that, unless the jury found the machine defective, its verdict would be for the defendant, verdict for plaintiff necessitated the conclusion that they found the machine defective.
    2. Master and Servant <®=>265(5) — Unsafe Machinery — Rbs Ipsa Loquitur.
    Where a servant was injured by the starting of machinery unexpectedly and automatically without human agency, the character of the accident and circumstances held to show defendant negligent in caring for the machine.
    S. .Master and Servant ⅞=»124(1) — Injury to Servant — Safe Place to Work — Inspections.
    It is the duty of the master to make such inspections of machinery, and use such precautions in keeping it oiled and in good running condition, as its nature requires.
    4. Master and Servant <g=»286(24) — Injury to Servant — Defect in Machinery — Time for Discovery.
    Where the evidence raises the question as to whether a machine was ever inspected or more than casually observed by the master, whether the defect existed for a time sufficient to be discovered upon proper inspection does not arise, and whether the defendant was free from negligence is a question for the jury.
    5. Master and Servant <⅜=»278(5,16) — Injury to Servant — Starting of Machine-Negligence — Inspection—¡Evidence.
    Evidence in a servant’s action for injury from the unexpected automatic starting of a machine held sufficient to show the master’s negligent failure to inspect, oil, and repair the machine.
    6. Appeal and Error ©=»1114 — Disposition of Case — Decision of Intermediate Court —Remand.
    Where the Court of Civil Appeals reversed and rendered the judgment of the trial court, and made no finding of fact which would defeat recovery, the Supreme Court may reverse such judgment and affirm that of the trial court.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by Henry C. 'Gammage against the Gamer Company. Judgment for the plaintiff was reversed by the Court of Civil Appeals and judgment rendered for defendant (162 S. W. 980), and plaintiff brings error.
    Judgment of the Court of Appeals reversed, and that of the trial court affirmed.
    I-Iunter & Hunter, A. J. Clendenen( and Theodore Mack, all of Ft. Worth, for plaintiff in error.
    Lassiter, Harrison & Rowland, of Ft. Worth, for defendant in error.
   TAXLOR, J.

The plaintiff, Henry C. Gam-mage, sued the defendant, the Gamer Company, for damages on account of personal injuries received by him while operating a machine for cutting leather washers. It is not necessary to describe the machine and the manner of its operation further than a» follows;

Immediately in front of where the operator stands there is a perpendicular iron shaft which, when the machine is in motion, works up and down like a sewing machine needle. In the lower end of the shaft is a detachable cutter, fastened in by means of a small pin or key. The leather, from which the washers are cut, is placed under the cutter on a horizontal die having a circular hole in it directly under the cutter, measuring the same in circumference as the cutter. The downward stroke of the shaft presses the cutter through the leather and on through the hole in the die, thus cutting the washers. There are two ways of starting the machine, and only two, when it is properly constructed and in good condition: First, by shifting a bolt from a loose pulley to a tight pulley; second, by moving a balance wheel. The loose and tight pulleys are close together on the same shaft, and the belt is shifted from one to the other by the operator in starting and stopping the machine, by means of wooden lever just behind the operator and within his reach. The balance wheel' is located a few feet from where the operator stands, about two feet above and in front of him.

The plaintiff at the time he entered the employ of the defendant was inexperienced as a machinist. It was known to the defendant that he had not operated, or worked around, machinery of any kind prior to that time. When injured he had been working for the defendant nine days, and had operated the machine about seven days. On the occasion of the plaintiff’s injury, and immediately before the accident causing it happened, the machine was standing idle. The die was in position for cutting washers, and the lower end of the shaft was at rest a few inches above the die. The plaintiff had just inserted the cutter into the end of the shaft, holding it in position with his left hand, and was in the ' act of fastening the cutter in with the key, when the machine suddenly started, amputating three of the fingers of his left hand.

The allegations of the petition material here are substantially that the plaintiff was an inexperienced workman with machinery, as was known to the defendant; that the machine upon which the plaintiff was injured was, through the negligence of the defendant, out of repair, defective, and dangerous to work with; that the lever used for shifting the belt was out of repair and not properly secured so as to hold the belt on the loose pulley; that the loose pulley was worn and wobbled, and was not properly set on the shaft, and would wobble and otherwise carry the belt onto the fixed pulley, or by friction and negligent failure to oil would become heated and tighten on the shafting, thereby starting the machine; that the plaintiff had no knowledge of such defects, and they were not obvious and open to view; that the defendant knew of the existence of the defects and had notice thereof, or by the exercise of reasonable diligence could have known thereof ; that by reason of such defects and dangers, and the failure of the defendant to warn the plaintiff, he was injured as alleged.

^e answer consisted of a general denial, plea of contributory negligence, and assumed risk.

The trial was before a jury, and resulted in a verdict for the plaintiff for $4,000. The Court of Civil Appeals reversed and rendered the judgment in favor of the defendant. 162 S. W. 980.

There is no evidence that the machine was set in motion on the occasion of the accident by any human agency. It had never been known to start automatically prior to that time, and it is uncontroverted that the machine, when properly constructed and in good condition, could be started in only the two ways stated above. The only reasonable conclusion to be deduced from the testimony is that the machine, at the time the plaintiff was injured by it, was defective. The court submitted the issues, including the issue of the defect, in a general charge, so framed that, unless the jury found the machine was defective, its verdict would be for the defendant. The verdict was for the plaintiff, and necessitates the conclusion that the machine, at the time of the plaintiff’s injury, was defective. The Court of Civil Appeals does not question the sufficiency of the evidence to warrant this conclusion. Its action in reversing and rendering the judgment is based upon the proposition that, while the evidence may be sufficient to establish the fact that the machine was defective, there is no evidence tending to show that the defect was due to the defendant’s negligence. Judge Hendricks in the opinion on rehearing says:

“We decided this case upon what we conceived to be a universal and simple rule of law; that is, ‘There must be evidence fairly tending to show either that the defendant knew of the existence of thé defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been discovered before the accident.’ ”

The principle of law stated by the honorable Court of Civil Appeals is correct, but, under the facts of this case, both the question of the existence of the defect, and of the diligence and care used by the defendant to discover or prevent it, are material, and the evidence bearing on both issues must be considered as a whole in determining whether the defendant was negligent. The issues cannot be disassociated in their relation to the defendant’s negligence. The fact that the machine started automatically is not relied on solely, and of itself, as showing that the defendant was negligent. The case is not one either requiring or permitting the application of the doctrine of res ipsa loquitur, which is evident from the character of both the pleadings and evidence. The plaintiff, in addition to pleading the facts tending to show that the machine started automatically, pleaded that through the negligence of the defendant there were three defects that caused it to start, pointing them out with particularity. He pleaded also that the defendant knew, or by the exercise of ordinary care could have known, of the existence of such defects. He introduced the testimony of W. S. Kirby, pointing out the three possible defects in detail, any one of which could, have caused the machine to start, and the existence, discovery, and prevention of all of which depended upon the degree of care used by the defendant in inspecting, repairing, and oiling the machine. While the doctrine of res ipsa loquitur is not applicable here, the facts of the case are such as to invoke the rule easily confused with that doctrine, and announced in the case of Washington v. M., K. & T. Ry. Co., 90 Tex. 315, 38 S. W. 765, as follows:

' “While the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident, and the circumstances in proof attending it, may be such as to lead reasonably to the belief that without negligence it would not have occurred.”

The principle underlying the liability of the defendant in such cases, and referred to in the Washington Case, supra, is frequently stated as follows;

“Where the particular thing causing the injury has been shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.”

It was the defendant’s duty to use ordinary care to furnish the plaintiff with safe machinery with which to do his work, and to use the same degree of care to keep it in a reasonably safe condition. In discharging this duty it was incumbent on the defendant to make such inspections of the machine, and use such precautions in the matter of keeping it oiled and'in good running condition, as the nature of the machine indicated to be proper. It is true that negligence is not imputed to the defendant if the defect is not discoverable by a reasonably careful inspection. It is equally true, however, “that the master’s nonliability cannot be affirmed as a matter of law, merely because the abnormal condition which created the risk from which the servant suffered injury was not apparent to a person making a superficial examination of the instrumentality in question. Where the evidence, as in this case, raises the question as to whether the machine was ever inspected, or more than casually observed from time to time by the defendant, the question of whether the defect had existed for a sufficient length of time to be discovered upon a proper inspection does not arise, and in such cases it is*a question for the jury as to whether the defendant is free from negligence. Labatt’s Master & Servant, vol. 13, §§ 1056-1059.

The machine was owned by the defendant, and was under its exclusive management. Mr. Gamer was the president, manager, and principal owner of the ■ company, and a Mr. Bird was superintendent. Mr. Wainwright, an employé at the time plaintiff began working for the defendant, instructed the plaintiff as to how to “set up” and operate the machine. Neither he nor the superintendent testified. The plaintiff’s task of operating the machine seemed to be temporary, as the superintendent had stated to him a few days before he was injured that he had another position which he would probably give him in two or three days as receiving clerk. He had no duties in connection with the machine other than those immediately incident to operating it. The following testimony of the plaintiff touching his duties is not controverted:

“I could not say whether the Gamer Company had a man regularly employed to oil its machinery. * * * I could not say about that. My attention was not called to any part or any defect in that machinery. I was never directed by any one connected with the Gamer Company to make any inspection of the machinery at any time; there was nothing ever said to me about inspecting the machinery. Nothing was ever said to me by any one about being careful in the use and operation of that machinery.”

There is no testimony that Mr. Gamer, the manager, or any one else, made an inspection of the machine at any time for the purpose of ascertaining its condition. Mr. Gamer’s testimony, and the only testimony, in fact, bearing on this question, is as follows:

“As to whether or not the shaft, pulley, machine, etc., were oiled from day to day, I state that we had a man to make a practice to oil every day; it was his job to do oiling every morning. From my observation of the machine from day to day, I can state that it was kept in first-class condition with reference to the oil prior to the accident — it was.”

The witness, on being recalled by the plaintiff, testified;

“I said that I had a man regularly employed to oil up this machine; ⅜ * * had him regularly when he was there. It was his duty to keep the'machine oiled. We had a man named Mike; I do not know what his other name was. ⅜ * ⅜ jje was an irishman all(j p <j0 not know what his other name was.”

The foregoing statement and testimony showing the ownership of the machine, whose duty it was to inspect and keep it oiled, and tending to show the degree of care used in these particulars, serve to differentiate this case from T. & P. Ry. Co. v. Endsley, 103 Tex. 434, 129 S. W. 343, cited by the Court of Civil Appeals. Mr. Gamer testified also that the machine was in good condition prior to the time of the plaintiff’s injury and at all times thereafter, and that nothing was done to it in the way of repairing until about two years after the accident.

The defendant made no attempt- to show the degree of care exercised in caring for the machine, or that it was ever inspected, other than is shown by the testimony of the manager quoted above. No evidence was offered by the defendant to explain how the accident occurred that did not, in effect, controvert the conclusion that the machine was defective, and present a conflict with the plaintiff’s testimony. Certainly the testimony is not conclusive that reasonably careful inspections were made or that, the machine was at all times oiled; nor could it be held, as a matter of law, that under the circumstances a defective condition of the machine might not result in personal injury to the one operating it. Washington v. M., K. & T. Ry. Co., supra. The evidence as a whole raised the issues of whether the machine was defective, and whether, if the defendant had used reasonable diligence to inspect the machine or ordinary care to keep it in good running condition, the plaintiff would have been injured. These issues were for the jury, and, together with others, were submitted under a proper general charge. The verdict was for the plaintiff and is supported by evidence. Washington v. M., K. & T. Ry. Co., 90 Tex. 315, 38 S. W. 764; McCray v. Ry. Co., 89 Tex. 170, 34 S. W. 95; G. C. & S. E. Ry. Co. v. Hayden, 29 Tex. Civ. App. 280, 68 S. W. 530; Texas & St. L. Ry. Co. v. Suggs, 62 Tex. 323.

In view of the fact that the Court of Civil Appeals reversed and rendered the judgment of the trial court and made no finding of fact that would defeat recovery, we are of opinion the judgment of the Court of Civil Appeals should be reversed, and that of the trial court affirmed. Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295; Tweed v. Western Union Telegraph. Co., 107 Tex. 253, 166 S. W. 696, 177 S. W. 957.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted; and will be entered as the judgment of the Supreme Court.
      cfcaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MONTGOMERY, P. J. PHILLIPS, C. J.

text:
    TEXAS MOLINE PLOW CO. v. KLAPPROTH et. al.
    (No. 37-2688.)
    (Commission of Appeals of Texas, Section B.
    Feb. 26, 1919.)
    1. Principal and Agent 100(3) — Power op Sale — Mortgages.
    A power of attorney, authorizing one to bargain and sell property, does not give power to execute a deed of trust.
    .2. Principal and Agent 3=>167 — Execution — Ratification .
    The ratification of an unauthorized mortgage must be evidenced by a written instrument, under Rev. St. 1911, arts. 1103, 3965.
    3. Principal and Agent <⅜^175(3) — Right of Mortgagee — Intervening Rights.
    Right of mortgagee must be determined by facts as they existed at time of execution of mortgfgc, and if there was then no other valid lien existing, nothing thereafter done by mortgagor could create a prior and valid mortgage or superior lien, not even a pleading admitting validity of a prior mortgage.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Proceeding hy H. Klapproth against Mrs. Delia Hooper and the Texas Moline Plow Company, to foreclose a deed of trust. There was a judgment in favor of plaintiff, which was affirmed by the Court of Civil Appeals <164 S. W. 399), and the last-named defendant brings error.
    Reversed and remanded.
    Spence, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for plaintiff in error.
    Howard & De Armond and J. M. Caldwell, all of Midland, for defendant in error.
   MONTGOMERY, P. J.

A full statement of the pleadings and material facts will be found in the opinion of the Court of Civil Appeals, 164 S. W. 399.

H. Klapproth, who was plaintiff in the trial court sued Mrs. Delia Hooper, a widow, to recover upon certain promissory notes and foreclose a deed of trust on certain lands, the property of Julia Hooper.

It was alleged that the notes and deed of trust were executed hy M. T. Hooper, the duly authorized agent of Julia Hooper, and it was further alleged that if the execution of the notes and deed of trust were not properly authorized hy Julia Hooper that she, after their execution, with full knowledge of all the facts, had ratified the act of M. T. Hooper, who in the execution thereof purported to act as her agent and attorney in fact. The Texas Moline Plow Company was also made a party, and it was alleged that said plow company was a junior mortgagee, that is, that Mrs. Julia Hooper, after the execution of the deed of trust and notes to Klap-proth, had executed certain notes payable to the Texas Moline Plow Company, and to secure the same had given to said plow company a deed of trust for the same land conveyed hy the Klapproth deed of trust. A foreclosure was sought both against Mrs. Julia Hooper and the Texas Moline Plow Company.

The plow company answered hy alleging that the deed of trust to secure Klapproth’s debt was executed without the authority of Julia Hooper, and that she had never legally ratified or adopted the same so as to become bound thereby, and further alleged that by virtue of its mortgage it had a' lien on the land superior to any lien of the plaintiff Klapproth, but it did not ask a recovery on tbe note or a foreclosure of its lien; and in fact a large part of the debt was not due.

Julia Hooper answered by admitting that the notes and deed of trust to Klapproth were executed by her authority, and further alleged that she had after the execution thereof, ratified and approved the same. She, in effect, confessed judgment in favor of the plaintiff, Klapproth.

By supplemental petition Klapproth alleged that the plow company accepted its mortgage with full knowledge of the prior mortgage, and that its rights were subject to the rights of Klapproth under the first mortgage.

The case was tried by the court and a judgment rendered in favor of the plaintiff, Klapproth, against Julia Hooper for the amount of the notes sued on and for foreclosure of his lien against both Mrs. Hooper and the Texas Moline Plow Company. Upon appeal of the plow company this judgment was affirmed hy the Court of Civil Appeals, and the plow company applied for and obtained this writ of error.

The material facts which were found by the trial court and by the Court of Civil Appeals will here be set out:

''“I, M. T. Hooper and the defendant Julia Hooper are mother and son, and were at the time of all of the transactions in this causo and are now both stockholders in a corporation known as the Midland Metal & Manufacturing Company.
“II. On the 30th day of August, 1910, the defendant Julia Hooper executed a general power of attorney, appointing M. T. Hooper as her attorney in fact, which power of attorney authorized him to bargain and sell any property. both real and personal, in the state of Texas, belonging to the said Julia Hooper.
“III. Said power of attorney was properly authenticated and filed for record in the office of the countyr clerk of Upton county on the 31st day of October, 1910, at 2 o’clock p. m., and duly recorded on the 3d day of November,
1910, at 11:30 o’clock a. m.
“IV. Thereafter, on the 1st day of August, 1911, M. T. Hooper, acting under the aforesaid power of attorney, executed 38 certain promissory notes of $50 each, all dated August 1, 1911, and due one on the 1st of each month thereafter, payable to the order of H. Klap-proth, signed by Mrs. Julia Hooper by M. T. Hooper, attorney in fact, and three days thereafter, to wit, on August 3d, the said M. T. Hooper, acting under said power of attorney, executed a certain deed of trust, conveying to W. B. Elkin, trustee, the second tract of land iu controversy, to secure the payment of the aforesaid 3S notes.
“V. The said 38 notes were executed in favor of H. Klapproth for a consideration of certain stock owned by the said Klapproth in the Midland Metal & Manufacturing Company, a corporation, the said corporation purchasing said stock from H. Klapproth.”
“VIII. On the 5th day of January, 1912, the defendant Mrs. Julia Hooper executed a deed of trust on the land in controversy to O. P. Robb, trustee, to secure the payment of two promissory notes executed by the Midland Metal & Manufacturing Company, M. T. Hooper, and Mrs. Julia Hooper, dated January 6, 1912, due December 1, 1912, and November 1, 1913, for the sum of $795 each, payable to the Texas Moline Plow Company.
“IX. Immediately prior to the execution of said deed of trust by M. T. Hooper to W. B. Elkin the defendant Mrs. Julia Hooper knew that M. T. Hooper contemplated and was going to execute said deed of trust, and both the defendant Mrs. Julia Hooper and M. T. Hooper believed that M. T. Hooper had authority, under the aforesaid power of attorney, to execute said deed of trust; and within a very few days after the execution of the deed of trust by M. T. Hooper, the defendant Mrs. Julia Hooper was advised of the execution of same, and approved and assented to the action of M. T. Hooper therein.
“X. The notes executed by Midland Metal & Manufacturing Company, M. T. Hooper, and Mrs. Julia Hooper to the Texas Moline Plow Company were for a pre-existing indebtedness of the Midland Metal & Manufacturing Company to the Texas Moline Plow Company, and the notes and deed of trust were given to secure an extension of said indebtedeness.
“XI. The notes to the Texas Moline Plow Company signed by Midland Metal & Manufacturing Company and the deed of trust given to secure same were secured for the Texas Moline Plow Company by its duly authorized agent, W. A. Metcalf, who, before the execution of the notes and deed of trust, was advised by M. T. Hooper that he, acting under the power of attorney aforesaid, had executed a deed of trust to secure the notes due the plaintiff, and advised the said Metcalf that his lien would be subject t.o the lien of Klapproth - and also to the lien of the state of Texas for the purchase price of said land.
“XII. At the time of the execution of the deed of trust to secure the notes of the Texas Moline Plow Company the defendant the Texas Moline Plow Company, through its duly authorized agent, W. A. Metcalf, refused to accept a deed of trust on the land in controversy executed by M. T. Hooper as attorney in fact under said power of attorney, believing that the deed of trust executed by M. T. Hooper in favor of the plaintiff was invalid under the power of attorney.
“XIII. Of the 38 notes given, and for which the deed of trust was executed to secure 8 have been paid off and discharged by the defendant Mrs. Julia Hooper out of the funds of the Midland Metal & Manufacturing Company, the remaining 39 of said notes are unpaid and are valid and subsisting obligations of the defendant Mrs. Julia Hooper, and the plaintiff, Klap-proth has elected to mature all of said notes under a provision in said deed of trust providing that a failure to pay any one or more of said notes should, at the option of the holder thereof, mature all of same.”
“XV. The approval and indorsement of the defendant Mrs. Julia Hpoper of M. T. Hooper’s execution of the deed of trust was verbal and not in writing1:”

Opinion.

The power of attorney executed by-Julia Hooper gave M. T. Hooper no authority to execute the deed of trust to W. B. Elkin as trustee to secure the notes to the plaintiff, Klapproth. Reese v. Medlock, 27 Tex. 120, 84 Am. Dec. 611; Frost v. Erath Cattle Co., 81 Tex. 509, 17 S. W. 52, 26 Am. St. Rep. 831; Wiess v. Goodhue, 46 Tex. Civ. App. 142, 102 S. W. 793; First National Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842.

The verbal approval of the act of M. T. Hooper did not have the effect of ratifying the deed of trust. The authority to mortgage the land is required by law to be in writing, and the ' ratification of an unauthorized mortgage must also be evidenced by a written instrument. R. 8. arts. 1103, 3965; Zimpleman v. Keating, 72 Tex. 318, 12 S. W. 177; Reese v. Medlock, 27 Tex. 124, 84 Am. Dec. 611.

It follows from the foregoing that, unless there was proof of such facts as amounted to an estoppel as against Julia Hooper, the deed of trust to secure Klapproth’s notes was ineffectual and created no lien.

The right of the Texas Moline Plow-Company must be determined by the facts as they existed at the time it accepted the notes and deed of trust from Mrs. Julia Hooper. If at that time Klapproth had a valid and enforceable lien, such lien is superior to the lien of the plow company. If, however, there was then no valid lien, nothing thereafter done by Julia Hooper and Klapp-roth, or either of them, could create a lien superior to the lien of the plow company. We agree with the Court of Civil Appeals that there is nothing in the record" which shows that prior to the execution of the deed of trust to secure the notes' given to the Texas Moline Plow Company Julia Hooper had done anything, or that anything had occurred which would estop her from denying the validity of the lien claimed hy Klapproth. The answer of Julia Hooper, admitting the validity of the deed of trust to secure Klapp-roth’s debt, while it is evidence against her and in a proper case would bind her by. es-toppel, cannot bind the plow company. It is contrary to reason to say that, while the plow company had a valid and superior lien until the moment her answer was filed, she, by simply answering and admitting a state of facts, contrary to the facts as they actually existed, could destroy the existing right of the plow company.

We have carefully examined all the cases cited in the opinion of the Court of Civil Appeals, and none of them, we think, support the conclusion reached by that court. The case of Stoney v. Shultz, 1 Hill Eq. 465, 27 Am. Dec. 429, cited by the Court of Civil Appeals, in our opinion does not touch the question involved in this case. In that case it appears that a sheriff under the authority and direction of one Brooks, and claiming to act under a judgment in fact void, made a deed by which he undertook to convey the fee in certain lands in which Brooks had an interest to one Williamson. The court held that the sheriff could be regarded as the private agent of Brooks, and as not acting in his official capacity, and in that connection used this language:

“And if it be objected that his [the sheriff’s] authority from Brooks was by parol, and void under the statute of frauds, it is an answer that the facts are admitted by Brooks in his answer to this bill — a confirmation of the act. Williamson was therefore entitled to all the rights of Brooks.”

It will be seen in that case that the admission by Brooks in his pleading was not held to be binding upon any one except Brooks. In that case the intervening rights of third parties were not involved.

All the Texas cases cited by the Court of Civil Appeals are cases in which the pleadings of litigants are held to be admissions binding upon the pleader, but in none of them was it held that a statement or admission in the pleadings of a party could affect the intervening and vested rights of others, whether parties to the suit or not.

Our conclusion is that the lien of the Texas Moline Plow Company is a first lien on said land, subject only to the unpaid purchase money due the state, and that the plaintiff, Klapproth, has a second lien inferior to the lien of the plow company. In view of the fact that the notes due the plow company were not due, and therefore no judgment could be rendered for the amount thereof when this case was tried, we recommend that the judgment of the Court of Civil Appeals and the trial court be reversed, and this case remanded for a new trial and for proceedings not inconsistent with this opinion.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the questions discussed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STRONG, J. PHILLIPS, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.
    (No. 35-2684.)
    (Commission of Appeals of Texas, Section A.
    March 5, 1919.)
    1. Trial <§=314(1) — Conduct of Court — Coercion of Jury.
    In personal injury suit, in which testimony was sharply conflicting on material issue, keeping the jurors together from Thursday noon until Friday afternoon, after they had informed the court that they were unable to agree and asked to be discharged, and urging them to agree to avoid additional expense to the county, etc., requires reversal of the judgment.
    2. Trial <§=>314(1) — Conduct of Court — Coercion of Jury.
    While the trial judge is allowed considerable discretion in matters of keeping the jury together, he has no authority to insist upon an agreement in order to avoid additional expense to the county or personal inconvenience to juroi’s.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (163 S. W. 116), and defendant brings error.
    Reversed and remanded.
    A. S. Coke and A. H. McKnight, both of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for plaintiff in error.
    B. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for defendant in error.
   STRONG, J.

This is an action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas for damages for personal injuries alleged to have been sustained by him while in the service of defendant company. The trial resulted in a verdict and judgment in favor of plaintiff, which was affirmed by the Court of Civil Appeals. 163 S. W. 116.

The principal assignment of error is based upon the action of the trial judge in giving to the jury certain verbal instructions after they had reported that they were unable to agree and asked to be discharged. It is disclosed by the record that the jury retired to consider their verdict on Wednesday morning. They reported to the court at noon Thursday that they were unable to agree, and the court thereupon instructed them verbally substantially as hereinafter quoted, and sent them back for further deliberation. At adjourning time Thursday afternoon, the jury again reported to the court that they could not agree and again asked to be discharged. The court thereupon repeated in substance the verbal instructions given at the noon hour, which were as follows:

“The Court: Have you been able to agree yet?
“The Foreman: No sir.
“The Court: Now, in order to restate, as I did this morning — I know you gentlemen appreciate the importance, of arriving at a verdict, and I appreciate the responsibility on you. The court is now, you see, where it can’t turn a wheel. As I stated this morning, the only way we can transact business is through verdicts of the juries, because this is a jury case, and nobody. but a jury can render a verdict. I have no power. I don’t want the power of doing it. The law makes it your duty, and I think the law wisely leaves it with the juries. Now, I don’t know — you see if you' were to quit now and couldn’t agree, we would have to get another jury at the next term of the court. I don’t know whether we could get a better jury than you are or not. Now, I appreciate the fact that you have differences of opinion, and men of pronounced views and independent thoughts— they will have differences of opinion about a great many things. We very often agree, and generally agree, to disagree, but in this matter you all have to agree on something, or else, of course, if that is an impossibility, then I would have to discharge you. I don’t feel that — you see you just took this case yesterday, I believe about 1:30 o’clock, and I don’t feel like, with the great expense that it will be to try this case over — under the circumstances, I don’t want to punish you, gentlemen; I sympathize with you. I know some of you probably want to be at home with your families and looking after your business, and I certainly sympathize with you in that respect. If I were to simply consult my sympathy, I would just simply tell you to go home and we would try it before another jury. Now, there is the right of the county and of the people to have verdicts, if it is possible. Of course, if you reach a point where you can’t agree, can’t get-together, why, then, that is a different matter. I suppose you stand somewhat as you did this morning numerically.
“Foremen: Yes, sir; one change only.
“The Court: Now, as I said, I don’t believe I ougjit to discharge you yet. I know you have been worrying over this matter all .day, and I have an idea, if you all go home, and get a good night’s rest, and get back here in the morning— it very often happens when people sleep over their troubles, or over their work, why, the next morning they may see things clearly that didn’t appear so the evening before. Now, I want to say to you, gentlemen, that it is not my intention to try to force you into any verdict. I wouldn’t have a right to do that, and I certainly wouldn’t do it if I could. If I had a right to, I wouldn’t force you to it against your best judgment; hut the point has come to this now, that I think you are at the end of another day’s work on the'case, and yet you have only had about a day and a half consideration of it, and I am going to ask you to come back here in the morning, and take it up where you left off, and consider it again, and see if you can’t get together on a proposition that you can all agree to in regard to a verdict.”

On Friday morning the jury again retired to consider the case, and at noon again reported to the court that they were unable to agree, and requested to be discharged. The request was again refused by the court. Friday afternoon, about 4 o’clock, the jury reached an agreement and returned into court their verdict.

The language used by the trial judge was clearly improper. Jurors should be allowed to pass upon issues submitted for their determination without having any matter pressed upon them for consideration, other than the evidence introduced upon the trial and the law governing same, given in the charge of the court. Personal consideration should not influence a juror in arriving at his conclusions, and should never be suggested to him as a motive for action. The trial judge is allowed considerable discretion in the matter of keeping a jury together until a verdict is reached, or until he is convinced that none can be reached; but he has no authority to insist upon an agreement in order to avoid additional expense to the county or personal inconvenience to the jurors. The judge in his remarks failed to impress upon the jqry that, however desirable it might be to avoid a mistrial, an agreement should not be reached unless it represented the honest conviction of each juror upon the issues involved. The testimony upon the material issues in the case was sharply conflicting, and we think the language used, while no doubt prompted by an earnest desire to expedite the business of the court, was calculated to, and probably did, exert an improper influence upon the jury, depriving them of that freedom which the law contemplates they should exercise in reaching a verdict. Railway v. Johnson, 99 Tex. 337, 90 S. W. 164.

. It is unnecessary to pass upon the questions raised by the other assignments, as they probably will not arise upon another trial.

We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for another trial.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.
      gs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SONFIELD, P. J. PHILLIPS, C. J.

text:
    COCA-COLA CO. v. WILLIAMS et al.
    (No. 36-2686.)
    (Commission of Appeals of Texas, Section A.
    Feb. 26, 1919.)
    1. Death <§=»33 — Negligence oe Corporation — Act oe Vice Principal.
    Under Rev. St. 1911, art. 4694, subd. 2, a corporation is liable for death of servant caused by negligence of a vice principal.
    2. Master and Servant <®=al03(l) — Safe Place to Work — Delegation oe Duty.
    The exercise of ordinary care to furnish servant with reasonably safe place in which to work is a positive duty on part of master, which cannot be so delegated as to relieve him from liability for its negligent performance.
    3. Master and Servant <S=>190(10) — Safe Place to Work — Fellow-Servant Rule.
    The fact that a barrel of liquid would explode if fire was applied to it did not render place of work unsafe, and the safe-place rule did not apply where a vice principal lit a match to look into barrel to ascertain amount of liquid therein, causing an explosion; there being no evidence that such was only and customary method of ascertaining amount of liquid in barrel.
    4. Master and Servant <®=3286(27) — Injuries to Servant — Question for Jury.
    Whether vice principal was guilty of negligence in lighting match to look into bunghole of barrel to ascertain amount of liquid therein, causing an explosion, held, for jury.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Lurena Williams and others against the Coca-Cola Company. There was a judgment for plaintiffs, which was affirmed by the Court of Civil Appeals (164 S. W. 1032), and the defendant brings error.
    Reversed and remanded.
    See, also, 150 S. W. 759.
    Smith, Robertson & Robertson, of Dallas, for plaintiff in error.
    Carden, Starling, Carden, I-Iemphill & Wallace, Ed Sewell, and Claude Westerfeldt, all of Dallas, for defendants in error.
   SONFIELD, P. J.

Gardner Williams was in the employ of the Coca-Cola Company as a common laborer. It was his duty to help cook and mix the ingredients used in the manufacture of Coca-Cola. The ingredients so used were not designated by name but by number. A barrel had been partially filled with a mixture styled “7-X”'; this mixture was a combination of two ingredients known as Nos. 7 and 9. No one in the plant except the manager and Van Winkle, the foreman, knew the properties of “7-X.” The other employes knew of but one of the ingredients in the mixture. The barrel containing the “7-X” was of oak, regular shape, with two ends; the only opening being a bunghole. The contents of the barrel were drawn from it by means of a siphon. Williams and others were preparing to proceed with the mixing; Van Winkle, the foreman and a vice principal, in order to ascertain the amount of mixture in the barrel, struck a match and held it to the bunghole. There was an explosion, the contents were blown out at the end of the barrel where Williams was standing, and he was covered with the burning liquid, receiving injuries resulting in his death.

Lurena Williams, his surviving wife, and their children, plaintiffs, brought this action against the Coca-Cola Company, defendant, to recover damages for the death.

Plaintiffs alleged negligence on the part of defendant in failing to exercise ordinary care to furnish Williams a reasonably safe place in which to work; in failing to warn him of the combustible nature of the liquid, and of the foreman’s intention to strike the match; and in keeping the inflammable material in and around the premises in barrels and other containers.

A trial to a jury resulted in a verdict and judgment in favor of plaintiffs. On appeal this judgment was affirmed. 164 S. W. 1032.

This is the second appeal in this case. On the first trial the court gave a peremptory instruction to find for the defendant. The Court of Civil Appeals reversed the judgment and remanded the case. 150 S. W. 759.

The peremptory instruction, in favor of the defendant on the first trial, was based on the theory that under subdivision 2 of article 4694, R. S. 1911, prior to its amendment in 1913 (Acts 33d Leg. c. 143, § 1 [Vernon’s Say les’ Ann. Civ. St. 1914, art. 4694]), a private corporation was liable for injuries resulting in death only when the negligent act was that of the corporation itself; that the act of the vice principal, Van Winkle, even if negligent, was the act of a servant or agent of the corporation, and not of the corporation; the acts of a corporation being only such as have reference to its nondele-gable duties. Defendant asserts the same theory here in an argument of unusual strength and ability.

The Supreme Court has definitely determined that, under the subdivision referred to, the wrongful act, negligence, unskillfulness, or default of a vice principal is that of the corporation, for which the corporation itself is liable. Hugo Schmeltzer Co. v. Paiz, 104 Tex. 563, 141 S. W. 521; Sullivan-Sanford Lumber Co. v. Cooper, 105 Tex. 21, 142 S. W. 1171; Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902. The last-cited case does not, as contended by defendant, in any wise modify, but on the contrary reiterates, the rule announced in Sullivan-Sanford Lumber Co. v. Cooper, supra. On the former appeal of this case, the Court of Civil Appeals, in the opinion written by Mr. Justice Moursund, discusses the question at length and reviews with thoroughness the above-cited cases. We deem it unnecessary, therefore, to further discuss the proposition.

The court did not submit to the jury the question whether the act of Van Winkle, in striking the match and applying it to the bunghole of the barrel, was negligent, and, if negligent, the proximate cause of the injury resulting in the death of Williams. The liability or nonliability of defendant was, under the charge, made to depend solely upon whether it exercised ordinary care in furnishing Williams a reasonably safe place in which to work.

We are of opinion that the court was in error in assuming that the safe:place rule was ■applicable under the facts of this case.

The exercise of ordinary care to furnish the servant a reasonably safe place in which to work is a positive duty on the part of the master, which cannot be so delegated- as to relieve him from liability for its negligent performance. It follows, therefore, that in determining the liability of defendant in this particular, the position or grade of service of Van Winkle, whether that of vice principal or merely a fellow servant of the deceased, is immaterial and should be left wholly out of view.

The proper construction and safety of the building or the room in which Williams was at work is not questioned by the evidence. The mixture, known as “7-X,” was customarily placed in this barrel. Though it was combustible, there is no evidence of anything about the place or premises rendering the same dangerous or unsafe through the mere presence of the combustible material. The barrel of mixture was not in and of it:self dangerous, nor was its presence or its Use attended with danger unless in some manner brought in contact with fire. The danger arose from and the explosion was caused by Van Winkle striking the match and applying it to the bunghole of the barrel, an act having no reference to the furnishing of the place, but only to the use of ;and operation in the place. There is no evidence that this act was necessary by reason of the manner of the construction of the place, or even that this was the only or customary method of ascertaining the amount ■of mixture in the barrel.

From the record it appears that the danger to which Williams was exposed was, to use the apt language of the court in Meehan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518, “merely a transitory one, existing only ■on tbe single occasion when the injury was .sustained, and due to ño fault of plan or construction or lack of repair, and to no permanent defect or want of safety in the defendant’s works, or in the manner in which they had been ordinarily used.” The act of Van Winkle ..stands out as the single instance in which such act was performed, and without evidence of necessity therefor ^ through the construction or condition of the place. In such case the rule of safe place is without application. Meehan v. Spiers Mfg. Co., supra; 4 Labatt, Master & Servant (2d Ed.) § 1517.

The duty of the master to exercise ordinary care to furnish and maintain a reasonably safe place is not breached by every negligent act, whereby the safe place furnished is rendered unsafe. To so hold would, in effect,' make the master an insurer of the safety of the servant and abrogate the rule of nonliability of the master for an injury, the result of the negligence of a fellow servant. In almost every case involving the master’s liability for injury to a servant, the safe-place doctrine could be successfully invoked. “A place, in its broad sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer.” Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017.

This positive duty of the master has its rational and legal limits, which must be recognized and enforced. It is confined to construction or provision, and does not include operation or use. The duty is violated only when the negligent act resulting in injury pertains to the place in contradistinction 'to the use of the place. “At the instant of the injury, every place * * * is unsafe. The test of liability is not the safety of the place nor of machinery at the instant of injury, but the character of the duty, the negligent performance of which caused the injury.” St. Louis, I. M. & S. Ry. Co. v. Needham, 11 C. C. A. 56, 63 Fed. 107, 25 L. R. A. 833; American Bridge Co. v. Seeds, 75 C. C. A. 407, 144 Fed. 605, 11 L. R. A. (N. S.) 1041. Was the duty one having to do with the preparation, construction, or maintenance of the place, or one pertaining to the operation or conduct of the business in or the use of the place? If the former, the master has breached his positive and nondelegable duty, and is liable for an injury resulting therefrom, whether the negligence be that of a vice principal or of a fellow servant; if the latter, though he may be liable, his liability does not arise from a failure to furnish or maintain a safe place.

The act of Van Winkle had no reference to preparation, construction, or maintenance of the place, but to the use of the place, the operation and conduct of the business within the place. For an injury to a servant, the result of á negligent use of the place or negligent operation in the place by a felLow servant in a ease of this character the master is not liable. But Van Winkle was a vice principal, and if his act was negligent and the proximate cause of the injury to and subsequent death of Williams, defendant would be liable. Its liability, however, would not be predicated upon failure to furnish a safe place, but upon the negligent use of, or operation in the safe place furnished.

Whether the act of Van Winkle was negligent, and, if negligent, the proximate cause of the injury resulting in the death of Williams was for the jury, and the court erred in failing to submit this issue and submitting that of negligence in failing to furnish a safe place.

We are pf opinion that the judgment of the Court of Civil Appeals should be reversed, and the cause remanded.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.
      ®s»For other cases see same topic and KBY-NXJMB-ER in all Key-Numbered Digests and Indexes


text:
    WALKER GRAIN CO. et al. v. FT. WORTH GRAIN & ELEVATOR CO.
    (No. 50-2723.)
    (Commission of Appeals of Texas, Section A.
    March 5, 1919.)
    1. Appeal and E'er or @=32 — Texas Court oe Civil Appeals — Finality of Judgment —Statute.
    Under Rev. St. 1911, art. 1591, mailing certain judgments of Court of Civil Appeals final in any civil case appealed from county or from a district court, etc., and where county court under the Constitution and but for article 4653 would have had original jurisdiction of an action in which the judgment was rendered and jurisdiction of action to enjoin collection of such judgment, a judgment of Court of Civil Appeals upon appeal from district court in the injunction suit was final.
    2. Appeal and Error @=32 —Texas Court of Civil Appeals — Finality of Judgment —Statute.
    Rev. St. 1911, art. 1591, making judgment of Court of Civil Appeals final in any civil case appealed from county court or from district court when under the Constitution, a county court would have had original or appellate jurisdiction to try it, applies to adjunct or ancillary proceedings as well as to the original action.
    Error to Cburt of Civil Appeals of Second Supreme Judicial District.
    Action by the Walker Grain Company and others against the Ft. Worth Grain & Elevator Company, to enjoin the collection of a judgment. Temporary writ of injunction was made perpetual, and from a judgment-of the Court of Civil Appeals, 168 S. W. 470, reversing the judgment of the District Court and entering a judgment dissolving the injunction, plaintiffs bring error.
    Writ of error dismissed for want of jurisdiction.
    Harris & Xoung, of Ft. Worth, for plaintiffs in error.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for defendant in error.
   STRONG, J.

The Hood County Mill & Elevator Company sued the defendant in error in the district court of Hood county for the sum of $900. Defendant in error answered, making plaintiffs in error parties, and prayed judgment against them for whatever amount plaintiff might recover against it. The trial resulted in a judgment in favor of plaintiff against the defendant in error for the sum of $600.52 and in favor of defendant in error over against the plaintiffs in error for the same amount. Both defendants perfected their appeal to the Court of Civil Appeals. Pending the appeal, the defendant in error compromised the judgment against it, with the plaintiff Hood County Mill & Elevator Company, by paying $450,' and abandoned its appeal. The plaintiffs in error continued to prosecute their appeal, but the'judgment of the trial court was affirmed by the Court of Civil Appeals. Walker Grain Co. v. Hood County Mill & Elevator Co., 157 S. W. 444. The plaintiffs in error then deposited in the registry of the district court of Hood county the sum of $450 together with lawful interest and all costs of the litigation, upon the theory that the judgment of defendant in error against them was one of indemnity, and that the settlement made by defendant in error with the plaintiff in the judgment inured to their benefit. Defendant in error refused to accept this amount, and caused execution to issue on the judgment. Plaintiffs in error instituted this action to restrain a further collection of the judgment. A temporary writ of injunction was issued, and upon final hearing was made perpetual by the district court. The Court of Civil Appeals reversed the judgment of the district court, and entered judgment dissolving the injunction. 168 S. W. 470. The case is before this court upon the application of plaintiffs for writ of error.

It is contended by the defendant in error that the judgment of the Court of Civil Appeals is final. The statute provides, subject to certain exceptions, none of which apply in this case, that the judgment of the Court of Civil Appeals shall be final in "any civil case appealed from a county court or from a district court, when, under the Constitution, a county court would have had original or appellate jurisdiction to try it.” Article 1501, R. S. 1911. This statute has been held to apply to adjunct or ancillary proceedings as well as to the original action. Smith v. Wilson, 91 Tex. 503, 44 S. W. 672. The county court would have had original jurisdiction to try the case in which the judgment, here under attack, was rendered, and would have had, jurisdiction to try this action for injunction, but for the statute requiring such proceeding to be brought in the court in which the judgment sought to ¡be enjoined was rendered. Article 4653, R. S. 1911. This being true, we are of opinion that the judgment of the Court of Civil Appeals is final, and that the application for writ of error should be dismissed. Smith v. Wilson, supra; Cole v. Cobolini, 106 Tex. 472, 170 S. W. 1036; McFarland v. Hammond, 106 Tex. 579, 173 S. W. 645.

PHILLIPS, C. J.

The case will be dismissed for want of jurisdiction.
      É=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SADLER, J. PHILLIPS, C. J.

text:
    MISSOURI, K. & T. RY CO. OF TEXAS v. GRAHAM.
    (No. 47-2711.)
    (Commission of Appeals of Texas, Section B.
    March 5, 1919.)
    1. Master and Servant <⅞=278(7) — Personal Injury — Negligence—Evidence.
    In action for injury to station agent, who, after steps had been removed-, and while attempting to step from edge of a mixing trough to freight platform and to pull himself up by a railing on platform, fell back into a ditch, which railroad was constructing, 'held, on the evidence, that railroad was not negligent in removing steps and in failing to replace them, or in failing to furnish some other reasonably safe means to get upon platform or a safe railing or other object by which the agent could pull himself to platform.
    2. Master and Servant <@=112(1) — Place of W ore — Negligence.
    That railroad took away steps which were convenient and direct passage for its agent to freight platform, and left known safe routes of travel, did not charge it with negligence because such other routes might have been inconvenient to agent and have required more of his time in performance of his duties.
    .3. Master and Servant <@=>278(13) — Injury to Servant — Dangerous Place oe Work —Evidence.
    Evidence in action for injury to station agent, who, after steps had been removed, and while attempting to step from edge of mixing ■trough to freight platform and to pull himself up by a railing on platform, fell back into a ditch, which railroad was constructing, held not to show railroad’s negligence in not covering ditch or taking proper means to prevent any one from falling or stepping into it.
    4. Master and Servant <@=»97(2) — Safe Place for Work — Liability.
    A master must exercise due care to furnish a servant a reasonably safe place to work, and if his negligence renders such place unsafe, with resulting injury to servant, master is liable, if injury is such as under circumstances might reasonably have been foreseen as natural, probable, and proximate result of negligence.
    5. Master and Servant <@=281(2) — Injury to Servant — Contributory Negligence-Evidence.
    In action for injury to station agent, who, after steps had been removed, and while attempting to step from edge of a mixing trough to freight platform and to pull himself up by a railing on platform, fell back into a ditch which railroad was constructing, held, on the evidence, that agent was guilty of contributory negligence, proximately causing his injury.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Sam Graham against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals, and from a judgment of af-firmance by the Court of Civil Appeals (16S S. W. 55), the defendant brings error.
    Judgments of Court of Civil Appeals and of district court reversed, and judgment rendered for defendant.
    C. C. Huff, of Dallas, W. R. Abernathy and Wallace Hughston, hoth of McKinney, and A. H. McKnight, of Dallas, for plaintiff in error.
    R. C. Merritt and H. C. Miller, both of BlcKinney, for defendant in error.
   SADLER, J.

For a statement of the pleadings in this cause reference is had to the opinion by the Court of Civil Appeals. ICS S. W. 55. The facts on the question of negligence vel non are as follows:

At the time of the alleged injuries for which recovery is sought Graham was the freight and passenger agent of the defendant at McKinney, Tex., and had been such for several years. His duties as such agent were performed at the passenger and freight depots.

It seems that the track of the defendant at tliis place runs north and south. The passenger station is located on the west side of the track, while the freight station is on the east side. It was Graham’s duty to look after the sale of tickets at the passenger depot, to perform his duties with reference to freight matters at the freight office which was situated near the south end of the freight station, and to attend generally to the business of defendant at this station. His duties required that he pass backward and forward from one to the other of these offices.

Surrounding the freighthouse proper was a platform extending out north, south, east, and west from the building, forming a place upon which to receive and from which to deliver fréight. This platform was approximately 100 feet long north and South by 40 feet wide east and west. Along its western side, the platform was about 3 feet above the ground. Along the northern end, it was from 3 to 4½ or 5 feet higher than the ground, being about 3 feet above the ground at the western end and about 4½ or 5 feet at the eastern end. Along the east side, it was from 4½ to 5 feet above the ground. Defendant’s passing tract ran along the west side of the freight platform. When freight trains were standing on this track, there was a very narrow space between the cars and the edge of the platform, rendering it inconvenient to pass between the cars and the platform. At the northwest corner of the freight platform, there had been for several years steps, which were used in passing from the freight over to the passenger station and vice versa. At the southwest corner of the freight platform, there were steps used in passing to and from the freighthouse. The most convenient route of travel from the passenger over to the freight station and return — the one used commonly by Graham — was by way of the steps at the northwest corner of the freight station.

Graham received his injuries on Monday. During the preceding week the defendant was engaged in rebuilding and repairing a sewer which extended along the north end of the freight platform. This sewer was being dug about 4½ feet deep and about 4 feet wide. The bottom was being covered with cement. Graham knew that this work was being done.

While digging this trench along the north side of the platform the foreman in charge of the work caused a banister or railing to be placed along the north end of the freight platform as a warning to prevent parties from walking oif into the ditch. This consisted of three uprights about 3 ⅛ feet long, either 1 by 4, or 2 by 4, on top of which was nailed a railing of 1 by 4 or 2 by 4. These standards or uprights were not braced, but were toe nailed to the floor of the platform with sixpenny nails. It was a temporary structure to prevent parties from walking off. This railing extended within about 3 or 3½ feet of the northwest corner of the freight platform. The rules of the company prohibited any obstruction on platform nearer than 3½ or 4 feet of the west edge to prevent injury to trainmen hanging on the side of box cars in freight trains passing this platform, requiring this for protection of employés.

On Saturday, the steps at the northwest corner of the platform were removed, and the sewer or ditch dug at this point. At this place, the south edge of the ditch ran about 12 inches under the edge of the platform. After digging the ditch on Saturday, a mixing board, 16 by 9, was placed at the edge of the ditch on the north side about the point from which the steps had been removed. This board extended to the edge of the ditch,, was resting upon a secure foundation, and was used to mix the cement and gravel with which the ditch was floored. The cement was put into the ditch Saturday. The south edge of this board was 2⅛ or 3 feet north and 2 or 2½ feet lower than the top edge of the platform. The ditch was open between-the edge of the mixing board and the platform. Graham knew on Saturday that the, steps had been removed; that the ditch had been dug; that the mixing board had been placed there in order to prepare the cement for flooring the ditch; and that the cement had been placed in the bottom of the ditch.

After removing these steps there were the-following safe ways by which Graham could pass from one depot to the other: One by way of the steps at the southwest corner of the freight platform; another by going to-the northeast corner and climbing up on the east side; and when no cars Were standing on the passing track along the west side of the platform, he could get on the platform anywhere along the west side.

On the morning of the injury, Graham had been in the passenger depot, selling tickets for the outgoing passenger train. After he-had completed this work, he then, started over to the freight office. At this time there-was a freight train standing on the passing track ready to depart. It appears from the evidence that this train extended the entire-length of the platform, and perhaps on south-of the south end. Graham came out of the-passenger depot at the east door, crossed' the tracks, and attempted to get up on the freight platform at the northwest comer by stepping from the mixing board to the platform. In doing this, he stood on the edge of the mixing board with his left foot and! placed his right foot on the edge of the platform, then took hold of the top of the railing and undertook to step up on the platform. The railing gave way, and he fell into the ditch, receiving the injuries for which he-seeks recovery.

As station agent for the defendant Graham had the direction of the business of the company at McKinney, was in charge of the freight and passenger depots, and familiar with the situation of all of the premises. He knew the work that was being done in digging this sewer and repairing same. It was open and apparent that the railing aloñg the north end of the platform was a temporary structure without any braces.

In order to pass from the passenger depot to the freight depot on the morning of the injury, Graham could have gone the course traveled by him and got up on the platform at the northwest corner; or have gone to the northeast corner and climbed up on the east side of the platform; or continued south to the southeast corner of the platform, west to the steps at the southwest comer; and ascended by these steps, then across the platform about 20 feet to the office; or he could have gone south from the passenger station, passing around the south end of the freight train, and ascended the steps at the southwest corner. The course pursued by him was the shortest route from the passenger office to the freight office. It was rendered unfit for use by reason of the repair. To have gone by the way of the northeast corner of the platform, passing ^completely around the freight depot and using the steps at the southwest corner, would have required him to travel in the neighborhood of 110 or 115 feet further than to have gone the route selected by him. To have gone around the south end of the freight train would have necessitated about the same additional distance of travel. Either of these routes would have afforded him a safe way. Both were known to him. He could have selected either of these routes instead of taking the one he did.

He charges the defendant with negligence in the following particulars: (a) In removing the steps which he had been using and failing to replace them or other steps at the northwest corner of the platform; (b) in failing to furnish him' a reasonably safe way and means to get up op the platform in going from the passenger station to the freight depot; (c) in failing to cover the ditch or sluiceway and providing proper means to prevent any one from falling or stepping into same; and (d) in failing to provide a safe railing or other object by which he could pull himself up on the platform. He charges that each of the above acts of negligence was the direct and proximate cause of his injury.

Defendant in the Court of Civil Appeals urged many errors in the trial of the cause, among others that the evidence wholly failed to show liability on the part of the company in that no negligence was proved.

The Court of Civil Appeals having held against the company on all of its assignments, the cause is before us on writ of error.

Opinion.

Many errors of which complaint is made by the defendant in error become immaterial in the view which we have of this case. We are not unmindful of the fact that, in the opinion of the honorable Court of Civil Appeals, the trial judge, and the jury, the evidence was deemed sufficient to establish negligence on the part of the defendant proximately bringing about plaintiff's injuries. We are loath to take a position contra to that which has been held by the learned judge who tried the case, .the jury, and the honorable Court of Civil Appeals, but in matters of this character we must be governed by our own concept in solving the problem which this record has presented. A court of last resort cannot excuse itself from an unpleasant duty. We have very carefully considered the testimony in the record in the view that certainly ■ there will be discovered' some evidence justifying the submission of the question of negligence on the part of the defendant to the jury. We cannot agree with the proposition that this record discloses any primary negligence on the part of the defendant responsible for plaintiff’s injuries.

Was the company negligent in removing the steps and in failing to replace them? There is no charge nor is there any proof that the defendant’s agents did not exercise care in removing the steps. The plaintiff •knew that these steps were removed. He knew just what was being done by the defendant’s employés at the very place that he had been accustomed to use in the performance of his duties. There was nothing done by the agents of the company to conceal any danger. Certainly it could not be charged that it was negligence on the part of the company to remove these steps, especially in view of the facts which will be hereafter mentioned, and since it was necessary to make the repairs to' the sewer. In digging the ditch there is no proof or charge that it was being done in a negligent or careless manner. In placing the mixing board near the edge of the ditch it is not charged, nor is there any evidence-showing, that this board was negligently put or carelessly set, but the evidence shows, on the other'hand, that it was solidly placed. There was no give-away to the mixing board. There is no evidence nor any contention that the employes of the defendant had placed the mixing board at the point where it was situated to take the place of the steps, or to invite its use as a means of passage to the platform. The steps were taken away in broad daylight. The plaintiff knew that they were removed; knew that they had not been placed back. There is nothing in the record which in any manner sustains the proposition of negligence on the part of the company in the removal of'and the failure to replace these steps.

Was the defendant negligent in failing to furnish a reasonably safe way and means for the plaintiff to get up on the platform of the freight depot in the discharge of his duties? The evidence shows, without contradiction, that for many years the plaintiff had been an employs of the defendant at this station, and was familiar with all of the surroundings; that the defendant had furnished steps at the southwest corner of the platform by which he could go on to same in passing from the freight depot to the passenger depot, and vice versa; that he might, at some little inconvenience to himself, have made a safe passage by going to the east side of the platform and getting on it there. The company had furnished him places that were safe, and had brought to him knowledge of the removal of one of these places, but he still had open to him other safe ways. It is true that these safe ways would have required him to take a little more time in going from the passenger over to the freight office, and may have called upon him to walk a few hundred feet further. But he was in the service of the company. It was paying him for his time. Whatever time he may have utilized in passing from one place of work to the other was the defendant’s time and not his. That he was pressed with work was not a matter of negligence on the part of the company contributing to or bringing about or causing his injury. That was a matter with which he had no concern, further than his own desire to keep up with his work. The proposition that the company was negligent in removing these steps and failing to furnish to plaintiff a safe way is not apparent from this record. On the other hand, it is apparent from the record that there were safe ways known to the plaintiff, furnished by the company, which he could have used. That he saw fit not to do so was solely within his own option, and not occasioned by any requirement on the part of his employer, and not necessitated by reason of the performance of any duty. We, therefore, cannot accede to the proposition that the company was negligent in failing to furnish to the plaintiff safe routes of travel in the performance of his duty.

Plaintiff says, this was the most convenient and most direct route, and that it had been rendered unsafe. We are not willing to say that because the defendant took away a means of passage which was convenient and direct and left known safe routes of travel that it can be charged with negligence because the known and remaining routes of travel may have been inconvenient to its em-ployés and may have required more of their time in the performance of their duties than would have been required by the use of the direct and convenient way. The inconvenience to the employés is the company’s inconvenience, and the loss of time of the employes in traveling an inconvenient route is the loss of the company, and not the loss of the employs. The defendant had the right to make these repairs. This record shows that had the plaintiff used the safe way left to him by the company and known to him his injury could have been avoided.

Was the company guilty of negligence in failing to cover the ditch or sluiceway and in failing to take proper means to prevent any one from falling or¡ stepping into same? Under this record we are justified in concluding that there was no railing along the north side of the platform prior to the time work was begun on this ditch. The plaintiff and those parties who have used this platform for the past several years knew that there was no railing along the north side. When this ditch was begun a railing appeared. A man of ordinary prudence, familiar with the premises, would have concluded upon seeing this railing that something out of the ordinary had occurred. The railing, therefore, would call his attention to the fact that conditions were not as they had been. Ordinary prudence would call upon him to investigate, which investigation would have disclosed the ditch. So we find that the defendant was exercising care in undertaking to prevent injury to parties using the depot platform by reason of the ditch, in that the railing called their attention to the departure from the ordinary usual conditions that had been existing, and put them upon notice and called for the exercise of ordinary prudence on their part.

The ditch was dug by sections. In the daytime, it was an open, visible thing to be seen, and sounded its own warning. At night, attention was" called to the situation by lights placed for that purpose. On the Saturday on which this particular portion of the ditch was being dug and being floored with cement, it was open, visible, and plain to be seen. The character of work ipsi was notice to the public of the danger that might exist. The plaintiff not only had the same opportunities to discover the ditch, not only had the same warning that the public had with reference to the character of the work, but he was there in person, saw the ditch, saw the work being done, and knew the conditions. There is no question but that the mixing board was stationary and solid. It is apparent from the record that it was not placed there to be used by any one except those who were in the performance of the labor required with reference to this particular ditch or sewer. There was nothing hidden; there was no danger existing that was not open and patent. In itself the ditch was not dangerous. It could only be dangerous in the event some one undertook to cross it, or carelessly and negligently fell into it. The defendant had not been derelict, because the very facts themselves spoke the warning to the public. It was not an invited passageway over the ditch. The removal of the steps, that they had not been put back, and the conditions while the work was being done, were a warning against the use of that way of passage. The facts in this record do not show negligence on the part of the company in the particular of which complaint is here made, but show the exercise of that care incumbent upon the defendant.

Was the company negligent in failing to provide a safe railing or other object by which plaintiff could pull himself up on the platform ? It may be conceded that the railing which was placed along the north edge of the platform was not such as was of sufficient strength to be used as a means by which to pull oneself onto the platform, but we are of opinion that of itself would not be sufficient to bring responsibility to the defendant for an injury resulting in its use for such purpose. What duty did the defendant owe the plaintiff in this particular? 'From what has already been said, it was apparent to the plaintiff that the defendant had furnished him a safe way which he could use in the performance of his duty. The railing itself spoke the use for which intended and unquestionably in itself warned the defendant of its unstable character. All of the facts connected with the digging of the ditch, the removal of the steps, the condition in which the railing was, and the position of the mixing board, informed plaintiff of the purpose of the defendant for the time being to withdraw its duties to him in the matter of using the northwest corner of the platform as a route over which to travel in the performance of his labors. This railing under the evidence was not built to be used as a means for pulling oneself onto the platform. Its manifest purpose from its construction, from its temporary character, from the character of the work being done, was to act as a warning, and the defendant was performing its duty toward the public and towards the plaintiff in the way of warning, and this railing was being used only in connection with that duty.

Is it right to say that the defendant, having furnished safe ways of passage, and being then engaged in withdrawing from use one of these ways, was under any duty whatever to do anything with reference to this railing which should tend to render it a stable structure to be used by the plaintiff in traveling a way which tire defendant had for the time being rendered unfit for use? There is no evidence'that the defendant extended to the plaintiff, either by implication or otherwise, an invitation to use this means of passage. We cannot see wherein it owed to the plaintiff any duty with reference to this railing further than the duty which it had performed in placing it there as a means of warning, calling attention to the changed condition of affairs and putting in motion the mind of a prudent man to the end that he might not undertake to use that route while improvements were then going on. We have been unable to put our finger on any evidence in this record showing that the defendant owed the plaintiff the duty of rendering this railing safe as a means to be used by him in the performance of his services for the company, or otherwise. We are unable to find any evidence in this record sustaining the view that the defendant was negligent in the matter of the construction of this railing.

The conclusions presented are intended as application of the general principles of law governing in matters of this character to the particular facts in this case.

The rule touching actionable negligence in matters od this character is believed to he concisely stated as “the duty of the master to exercise due care to furnish the servant a reasonably safe place to work, * ⅜ * and, if the negligence of the master renders such place unsafe and the servant is injured in consequence thereof, liability attaches, provided the injury is such as, under the attendant circumstances, might reasonably have been foreseen; that is, if it is the natural and probable, and hence the proximate, result of the negligence.” Smith v. T. & P. Ry. Co., 24 Tex. Civ. App. 92, 58 S. W. 151; Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

Applying this principle to the facts in this case, it is necessary for the evidence to show that the defendant railway company had negligently rendered unsafe the way formerly used by plaintiff over which to travel in performing his duties, and that the defendant might reasonably have foreseen that as a natural dnd probable result of this negligence the injury to plaintiff would occur. The evidence in this record fails to measure up to this requirement.

In T. & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S. W. 3, the rule is stated that:

“Where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose for want of care.”

In the case at bar the railing, mixing board, and the ditch were under the control of the defendant railway company. The plaintiff also was, by reason of his position as agent, in charge of the properties of the company at McKinney, and an actor on behalf of defendant in managing the property. Further, the facts in this record do not show that the defendant was negligent in the particular duties resting upon it, and negatives want of care on its part. In the Coal Company Case the court makes the further statement that:

“Negligence, is not to be imputed either to him [the plaintiff] or the defendant’s other servants without proof; and a state of facts in which the cause of the accident cannot be found does not warrant’a conclusion that one rather than the other produced it. We cannot presume in favor of one and against the other. Evidence must be brought by a plaintiff, having the burden of proof, sufficient to justify an inference of negligence on the part of the defendant, and none such can be drawn from an occurrence which, while indicating negligence somewhere, is as consistent with the hypothesis that it was his own- [plaintiff’s] or that of one in whose right he sues as that it was that of the other party.”

In St. L. S. W. Ry. Co. of Tex. v. Highnote, 99 Tex. 27, 86 S. W. 924, in speaking of the rule applicable in that case, the court says:

“By his own evidence it is showk that High-note did not act upon the suggestion of the conductor or any trainman in the employ of defendant. On the contrary, by using the bell, he undertook to do that which under the agreement it was the duty of the conductor to do; that is, to cause the train to reduce its speed and to determine when that speed had reached a safe point at which he would be permitted to leave the train. Having assumed to perform these acts himself instead of calling upon the conductor to do so, and, having by his own judgment determined the propriety of his act, his injury was the result of his own conduct. ‘There is no form of action known to the law (and the wit of man cannot invent one) in which the plaintiff will be allowed to recover for an act not done or caused by the defendant, but by himself.’ ”

In the present case to permit a recovery under the facts in this record would be permitting the plaintiff to recover for an act not done by the defendant, but performed by the plaintiff in the exercise of his own independent judgment.

G., C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 89, 23 S. W. 578, supports the proposition that negligence on the part of the railway company in this case is not to be inferred from the fact that the steps had been removed and not replaced; that the railing was not of sufficient strength to be used as a lever or as a means by which plaintiff could pull himself onto the platform.

In Crawfordsville Trust Co. v. Nichols, 121 Ark. 556, 181 S. W. 904, the Supreme Court of Arkansas, passing upon a like case, says:

“We are also of the opinion that the court should have instructed the jury as a matter of law that Alfrey was not negligent, under the circumstances, in failing to warn his employés of the danger and in failing to place a barrier around the excavation for their protection. The allegations of the complaint as to negligence were not proved. Alfrey, at the time of Haggard’s injury, was doing all that any man of ordinary prudence would be required to do. The excavation was suddenly made during the night by the bursting of a pipe, and it was discovered as soon as it could have been done in the exercise of ordinary care, and the employés had set about making the repairs, and were so engaged when Maggard came along and fell into the hole that the other employés were then draining.”

That case arose on this state of facts: Maggard had been working at the trust company’s plant long enough to be .familiar with the premises, and was killed while walking through a passageway commonly used by the employés, where there was a steam pipe which had burst and washed away the ground, leaving a cavity full of boiling water at a time when it was obvious that more steam was escaping from the pipes than usual, being so dense that it covered the passageway. This condition was discovered, and in the exercise of ordinary care the em-ployés set about making repairs, but there was no guard rail or warning displayed, and Maggard, while the employés were making these repairs, came through the passageway, fell into the hole filled with boiling water, and received injuries from which he died. The court here holds that the company was not liable, and in support of its holding cites Stuart v. West End Ry. Co., 163 Mass. 391, 40 N. E. 180; also cites E. & A. Ry. Co. v. Miles, 82 Ark. 534, 103 S. W. 158, 11 L. R. A. (N. S.) 720.

In the Miles Case above cited the court states that the plaintiff “was a full-grown man of mature years, strong in body and of more than average intelligence. There was no negligence on the part of the company in placing the gravel on the embankment, as that was necessary and customary in the improvement and repair of its roadbed. Walsh necessarily knew that it was there, and the danger of alighting upon it from a moving train, if it was ordinarily dangerous, was obvious to any one. Any person of ordinary intelligence knows that it is more dangerous to alight upon an uneven surface or movable substance than upon a smooth and firm surface. 1-Ie needed no previous warning or instructions on that score, and it cannot be said -that the company owed him the duty of giving warning or instruction of a danger which was obvious to him.”

In this case the plaintiff was not only a full-grown man, but he had for seven years been in charge of this particular ground and this particular place of business of the company. He was familiar with these premises. He knew that the repairs were being made. The changed conditions warned him of the probable unsafeness of the way and the advisability of using the other safe ways. The evidence does not present any primary acts of negligence on the part of the company in making those repairs or in the manner of warning against the use as a means of passage of the place where plaintiff’s injury occurred.

The defendant had the right to repair this sewer, if it were not in fact a duty to do so. So long as it exercised care in doing the work and to warn of the changed conditions, to call attention to the situation, to use proper means by which to bring home notice of the repairs and of the situation 'of things, it was acting within its rights. The evidence fails to show any negligence in these matters, and the record establishes that plaintiff’s own independent negligence brought about his injury. This- effort to use this way with full knowledge of all the conditions and in disobedience to the warnings given was the direct and proximate cause of his injuries, and they did not result from that want of care incumbent upon the defendant.

The evidence does not present a condition of affairs wherein the defendant could have reasonably anticipated that the agent in charge of'its depot, familiar with its grounds and cognizant of the conditions brought about by the necessary repairs, would have undertaken to use the means which he did to pass from one place of employment to another.

We are therefore of opinion that this record discloses a state of facts showing that plaintiff’s negligence was the proximate cause of his injuries, and that no primary negligence is shown on the part of the railway company.

We recommend that the judgments of the Court of Civil Appeals and of the district court be reversed, and that judgment be here rendered for the defendant.

PHILLIPS, C. J.

The judgment recommended by the Commission of Ajppeals is adopted and will be entered as the judgment of the Supreme Court.
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