text:
    RICE COMMON SCHOOL DIST. NO. 2 et al. v. OIL CITY IRON WORKS.
    (No. 7365.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 13, 1915.
    On Motion for Rehearing, Dee. 24, 1915.)
    1. Mechanics’ Liens <&wkey;13 — Property Subject to Lien — Public Buildings.
    A mechanic’s lien cannot be enforced against a public school building.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 14, 15; Dec. Dig. 4&wkey;13.]
    2. Mechanics’ Liens <&wkey;114 — Equitable Assignments— Sufficiency oe Evidence.
    In an action against a school district for the value of materials furnished contractors for use in the construction of a school building, evidence held to show that, when the contractors “O. K.’d” plaintiff’s claim, it was intended that such claim was to be paid by the school trustees out of the school fund appropriated for the school building.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 149; Dec. Dig. <@=ell4.]
    3. Mechanics’ Liens <&wkey;114^-EQUiTABLE Assignments — Building Contracts — Liability.
    Where plaintiff’s claim for materials furnished contractors for use in the construction of a building was “O.K.’d” by the contractors with intent that it should be paid by the trustees out of the fund appropriated for the school building, and the trustees were duly notified, and it was recognized by all parties that the account was just and rightfully chargeable to such fund, and thereafter the trustees paid on junior claims or to the contractors amounts in excess of plaintiff’s claim, the school district was liable for the amount of such claim, though there was no written or verbal order specifically directing its payment by the trustees, and though no estimate was made therefor by the architect, and the contractors subsequently defaulted in their contract, and it cost the district all that was due on the contract to finish the building.
    [Ed. Note — For other cases, see Mechanics’ Liens, Cent. Dig. § 149; Dec. Dig. <&wkey;114.]
    On Motion for Rehearing.
    4. Principal and Surety <&wkey;89 — Release op Surety — Consideration por Release.
    Where after the abandonment of a contract for the construction of a school building by the cóntraetors it was agreed by the contractors’ surety and the district that the surety should complete the building, but it was subsequently agreed that the school district should take charge of the building and complete it, and that the surety should be released, and the surety bond was thereupon canceled and surrendered, this agreement constituted a valuable consideration for the surety’s release, and the district was not entitled to judgment against the surety for the amount of a judgment recovered against it by one furnishing materials to the contractor.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 133, 133%, 136-139; Dec. Dig. <&wkey;89.]

      Appeal from Navarro County Court; R. R. Owen, Judge.
    Action by the Oil City Iron Works against Rice Common School District No. 2 and others. Erom a judgment against them, the School District and the defendant Fidelity & Deposit Company of Maryland appeal.
    Affirmed in part and reversed and rendered in part.
    Duther A. Johnson, J. S. Callicutt, and Jno. I-I. Rice, all of Corsicana, for appellants. Richard Mays, of Corsicana, for appellee.
   RAINEY, C. J.

Appellee brought suit against the Rice common school district No. 2 and the three trastees thereof, to wit, T. W. Neal, J. W. South, and J. B. Fortson, and Johnson & Meier, a firm of contractors composed of D. F. Johnson and L. G. Meier, the Fidelity & Deposit Company of Maryland, bondsmen for said contractors, Waller & Fields, architects, a firm composed of M. L. Waller and E. Stanley Fields, and their superintendent, Edward Norris, to recover a judgment jointly and severally against all of said parties for $225 balance due for material furnished and used in the construction of a school building at Rice, Tex.

The petition, in substance, alleged: That in the year 1911 said school district, through its trustees, entered into a contract with said Johnson & Meier, contractors, to erect a school building at Rice for the consideration of $14,330, according to certain plans and specifications to be made by Waller & Fields, architects, who, with said Norris, their superintendent, were to represent the trustees in directing the construction of said building according to said contract. Said Johnson & Meier executed a bond for the faithful performance of said contract, payable to said school district, in the sum of $7,000, with said Fidelity & Deposit Company as surety thereon. That Johnson & Meier, contractors, purchased of appellee certain material, which was used in said building, amounting to $325, of which $100 was paid, leaving due $225. That defendants knew appellee had furnished said material; the said contractors having accepted same and permitted it to be used in said building. That on February 19, 1912, appellee gave notice to the school district and its trustees of its claim against Johnson & Meier, and thereby fixed a lien against said building, the land used in connection therewith, and also against the money and fund then and thereafter payable to Johnson & Meier, and the same was recognized and accepted by the district and its trustees, and thereafter Waller & Fields and Edward Norris made an estimate showing that the contractors were entitled to the payment of $225 to cover amount of indebtedness due appellee by contractors, and that Johnson & Meier (contractors) transferred to appellee that amount of money then due and thereafter to become due and in the hands and control of defendants, and which estimate and assignment was presented by appellee to the school district and its trustees and accepted by them, and that said district had funds on hand at that time due the contractors more than enough to pay the amount of plaintiffs debt. That shortly before the completion of the building all of the other defendants entered into a conspiracy against the contractors, Johnson & Meier, and illegally forced them to abandon the completion of the building, and at that time the trustees had funds on hand due the contractor sufficient to pay ap-pellee’s debt and other debts owing by contractors, but that trustees refused to pay same, and unlawfully retained said funds in their hands, retaining a larger sum than was necessary to complete the building. That the trustees converted to their own use and benefit and diverted the building fund belonging to contractors, and which had been assigned to appellee, to the payment of other creditors. That the defendant Fidelity & Deposit Company of Maryland wrongfully took charge of the building, and assumed to complete same and pay off the creditors of Johnson & Meier, including appellee, and it was its duty to turn over the building free of claim or debt, and appellee was subrogated under the bond to all rights of the school district and its trustees to enforce against said bonding company the amount due appellee by all defendants. That later the school district and its trustees took the completion of the building out of the hands of the bonding company, and employed another to finish it, and the trustees agreed to surrender the bond and release the bonding company from liability, and the school district, by its trustees, then completed the building, and “plaintiff says at this time that the school district and its trustees had more than enough money then due and owing the contractors to pay off the debt of plaintiff and complete and carry out said contract without loss.” That the law required the district and its trustees to retain 10 per cent, of the contract price, to be devoted to the payment of indebtedness of the contractors, and the contract required them to retain 20 per cent, for this purpose, and, if they had done so, they would have had enough money to have paid appel-lee’s debt, but they failed so to do.

The answer of this appellant (Rice school district) put in issue all of the allegations of the petition; denied that it had anything to do with the purchase of material from ap-pellee, or that it or its trustees at any time agreed to pay therefor or assumed the payment thereof, but under the contract Johnson & Meier were to furnish all material for the building, and appellee sold same to the contractors, and it or its trustees knew nothing thereof until long after same had been bought by the contractors from appellee and had already been used in the construction of the building; denied that any assignment of fund was made by Johnson & Meier to appel-lee, or that it had any notice of any assignment, or that same was accepted by this appellant, that the school trustees, under the contract, were not to pay out money except on estimates furnished by the superintendent as the work progressed, as shown in paragraph 4 of the building contract, that Edward Norris was the superintendent in charge of the construction, and that the school district paid all estimates promptly as allowed, and especially deny that Edward Norris allowed an estimate of $225.20 to cover indebtedness due appellee, as claimed by it; denied that it, by a conspiracy or otherwise, caused the contractors to quit work on the building; but alleged, on the contrary, that Johnson & Meier failed and refused to furnish material and workmen necessary to comply with their contract, and that their failure so to do was certified to by the architect under the terms of the contract, and that Johnson & Meier voluntarily quit the construction of the building because they were financially embarrassed and could not finish same, that the contract price at which Johnson & Meier undertook to construct the building was inadequate, and that this tended to cause the financial embarrassment of the contractors, that it paid all estimates due Johnson & Meier as allowed, and under the contract said contractors were to complete the building on March 1, 1912, but Johnson & Meier abandoned the work on or about July 1, 1912, the building still being unfinished, and the school district, through its trustees, paid out the remainder of the funds then on hand for the completion of the building according to the plans and specifications, the entire contract price of $14,-330 being paid out and much more for the construction thereof, that the fund was judiciously, necessarily and economically expended, and that after the payment of said amount and the completion of the building none of the building fund on hand remained, and the school district had no funds on hand belonging to the building fund at the time this suit was brought, and that the school district got the entire benefit of the funds in the hands of the trustees for the erection and completion of said building, and that none of the funds were misapplied or converted, that the school district paid all estimates as allowed by the superintendent, and the goods sold by appellee to Johnson & Meier were wrought into the building early in its construction, and were included under estimates furnished by the superintendent soon after the construction of the building begun, and that said estimates were paid to Johnson & Meier by the school district, and, if the plaintiffs did not receive said money, it is not the fault of the school district, that before suit was brought, appellee’s claim had been settled and merged in a promissory note payable to appellee and executed and delivered to it by Johnson & Meier for the full amount sued upon, and accepted by appellee in full settlement and satisfaction of the amount sued upon. This appellant also asked for judgment over and against Johnson & Meier, the contractors, and also over and against Fidelity & Deposit Company of Maryland. Judgment by default was rendered against the defendants Johnson & Meier, Waller & Field, and Edward Norris in favor of appel-lee for the amount sued for. A trial before a court and jury was had as to the other parties, resulting in a verdict and judgment in favor of appellee against Rice common school district No. 2 for the sum of $225, with 6 per cent, interest thereon from April 1, 1912, and in favor of Bice common school district No. 2 against the defendant Fidelity & Deposit Company of Maryland for a like sum, and to favor of Fidelity & Deposit Company of Maryland against Johnsoh & M¡eier for the same amount. Under an instructed verdict judgment was rendered in favor of the defendants T. W. Neal, J. W. South, and J. B. Fortson, school trustees, the court holding that there was no individual liability shown as to them. A motion being overruled, the school district and the surety company appealed.

The school building on which a mechanic’s lien is sought to be foreclosed is a public one on which such a lien cannot be enforced. This is too .well settled under the law to admit of discussion; therefore the lien sought herein will not be further noticed in this opinion.

There are many assignments of error presented, all of which we will not discuss, but confine ourselves to the pertinent facts and the propositions of law that relate to them necessary for a decision of the case. The first question that arises is: Does the evidence show that the contractors, Johnson & Meier, made an equitable assignment of the amount due appellee for material furnished and used in the building of the contract price in the hands of the trustees. If there was an assignment, as claimed by appellee, of a part of said fund sufficient to pay said account, then the court was fight to rendering judgment for appellee. The liability of the appellant school district for the payment of said claim depends upon all the testimony adduced on the trial in relation to said claim. On this issue the trial court instructed the jury, in its fifth paragraph as follows:

“If you find and believe from the evidence that Johnson & Meier approved the plaintiff’s account, and if you further find and believe that it was the intention of Johnson & Meier in so approving said account, if they did, that such approval, if any, was for the purpose of enabling plaintiff to present said account to the Rice school board for payment by said school board, and if you further believe from the evidence that it was agreed and understood between Johnson & Meier and the plaintiff that such approved account, if any, was to constitute an order, or request, if it did, to the Rice school board to pay said account out of any moneys, if any, due or thereafter due by said Rice school board to Johnson & Meier under estimates made, and if you further believe that said approved account, if any, was received by the Rice school board from the plaintiff, and if you further believe that said school board, under the circumstances, and in the course of dealing with creditors of Johnson & Meier for materials used on said building, knew that said approval, if any, of said account by Johnson & Meier was intended by them, if it was, as an assignment of a sufficient amount of any funds, if any, then or thereafter to become due to Johnson & Meier by the board of trustees under estimates made, and if you further believe that the approval of said account, if any, by Johnson & Meier was intended by them to operate as authority for the school board to pay plaintiff’s account, and if you further believe that such school board under the circumstances understood, or in the exercise of ordinary prudence would have known, that such approval, if any, of said account was intended by Johnson & Meier, if it was, to operate as authority for said school board to pay said account, and if you further believe that at any time after said school board received plaintiff’s claim approved by Johnson & Meier, if it was, the said school board under estimates made, if any, under the terms of the original building contract, became indebted to the said Johnson & Meier in an amount of money equal to or more than the amount of plaintiff’s debt, then, if you so find and believe, you will return a verdict for the plaintiff against the Rice common school district No. 2 for the amount of plaintiff’s claim.”

Were the facts grouped by the court warranted by the evidence, and, if so, did they warrant a recovery by appellee? We think so. There is no controversy about said material being furnished said Johnson & Meier for use in the building, and that such material was delivered and placed in the building.

“The building contract was let September 5, 1911, wherein Johnson & Meier, contractors, agreed to furnish all material and labor and to construct and complete the building by March 1, 1912, for $14,330 payable ‘on certificates of superintendent from time to time as work progresses, to wit, 80 per cent, of estimated value of the same, subject to additions and reductions as hereinafter provided, estimates to be made every 15 days upon material furnished and labor done, and the remainder on satisfactory completion and acceptance of the entire work after the expiration of ten days.’ ”

The said material was furnished during the month of October, 1911, and amounted to $325.20. In February, 1912, after delay in payment, Johnson & Meier, at appellee’s instance, wrote on the face of said account the letters “O. K.,” and signed their names thereto thus: “O. K. Johnson & Meier.” On February 19, 1912, appellee wrote to the chairman of the school board, and inclosed therein the O. K. account, which letter is as follows:

“Corsicana, Texas, Feb. 19, 1912.
“Chairman School Board, Rice, Texas — Gentlemen: We inclose you account $325.20 that we have against Johnson & Meier, contractors on your Rice school building, duly approved. We have a letter from Mr. Fields, the architect, saying that Mr. Edward Norris, the superintendent, would be up from Navasota, and would give enough estimate to take up this and other claims. We kindly ask that you check us for it in the next few days, as we broke over our usual custom in shipping this material open, and it had been running more than four months. We beg to remain,
“Xours truly, Oil City Iron Works,
“Per Wm. Clarkson.”

Said letter and account were duly received by said trustees. Prior to this Johnson had refused to O. K. the bill, and then phoned to appellee he would O. K. it if appellee would ship the balance of the material. Ap-pellee then got it ready for shipment, but before doing so he telephoned to Norris, an employs of Waller & Fields, superintending the building, and told him he would ship with bill of lading attached to cover the whole account. Norris said not to do that; “we are going to take care of you.” Then appellee let the shipment go open. Afterward appel-lee called up J. W. South, one of the trustees, and asked him, to try to get the money. After this Clarkson, appellee’s agent, saw Neal and Norris in Rice, who handed him a check for $109 on the account, which was cashed. Clarkson thinks Johnson was present when the cheek was handed him by Norris and Neal. Albritton, who was superintendent of public instruction in Navarro county, stated he, at the instance of Clarkson, called up T. W. Neal, secretary of the Rice school board, and had a talk over the phone with reference to a settlement of appellee’s claim. “Neal said he was secretary of the board, and he would give an order for the money when the bill was O. K.’d by the contractors and the architect.” He remembered of no limitation made by Neal of the architect having to make an estimate or reference to the board having the money. Neal, one of the trustees, testified that he was secretary of the board, kept the minutes, the papers, vouchers, and accounts covering all transactions pertaining to said transactions, was an active member of the board, and had exclusive knowledge of the things concerning the records; that he made all payments and signed all cheeks, etc.; that he was actively engaged in the negotiations and employment of the architects, Waller & Field, and made the contracts with Johnson & Meier; that he told the other trustees about Clarkson’s letter, and told Clarkson that the trustees had no money then; that, if the contractors got any later on, they would see that it was paid. There was an estimate signed by M. E. Waller and presented—

“to me once covering the amount of appellee’s claim, which was either mailed to me or presented to me by Harvey, and I told him to send it back to appellee. I knew that Johnson & Meier had O'. K.’d appellee’s account when I got it. They had told us that they wanted to pay appellee, and had given him an estimate on us, if you call that account an estimate. He told Clarkson that he would help him-if he got any money. Fortson, South, and myself and the architect agreed that the school board would guarantee the people who sold material to Johnson & Meier. We gave them a verbal guarantee that they would receive the money for their material. Sometimes I would give them that verbal guarantee, and sometimes the others would do that. The reason the trustees told people who sold material that went into the building that we would stand security for such stuff as was sold to Johnson & Meier was that they could not buy much on credit, and when anybody sold material the school board would see that they got their money.”

When all the evidence is considered, we think it fairly shows that at the time the Johnson & Meier claim was O. K.’d it was intended by them and by Clarkson, appellee’s agent, that said claim was to he paid by the trustees out of the school fund appropriated for the school building. The trustees had guaranteed to people who sold material to the contractors for said building the payment of such hills, and it seems all that was necessary to be done was that such bills be properly O. K.’d. This bill was duly O. K.’d, the trustees were duly notified, and, while there was no written or verbal order specifically directing the trustees to pay this bill out of the building fund, yet we think it was so intended and recognized by all the parties that the account was for material, was just, and was rightfully chargeable to said school fund.

Said account being a charge upon said school fund, and not having been paid by the trustees, should there be judgment against them for said amount? After April 19, 1912, said trustees became obligated to pay said amount, if there was in their hands sufficient of said building funds for that purpose. From said April 19th until Johnson & Meier abandoned the contract, July 1, 1912, the trustees paid to Johnson & Meier, $8,332.02 and on estimates made to three other parties a sum aggregating $2,088, from which it would appear that during that time the trustees held sufficient funds with which to pay appellee’s claim, which they had promised to do. Ap-pellee’s claim being a preference one, and the trustees having paid out funds on claims that were junior thereto, the trustees cannot defeat appellee’s claim on the ground that no estimate was made for him by the architect, or that the contractors had defaulted in their contract, and it cost them all that was due on the original contract to finish the building. That, under the facts, the unexpended balance of the contract price on July 1, 1912, was necessary for the completion of the building is doubtful, and we deem it unnecessary to determine that point, as the evidence clearly shows that the trustees had funds out of which appellee’s claim should have been paid before said contract was abandoned.

On July 1, 1912, Johnson & Meier defaulted in their contract to complete the building, and abandoned same. There was $4,090 remaining unpaid of the contract price, and the trustees made arrangements with the surety company to complete the building, but soon after the trustees concluded they could save money by having the work done themselves, when by agreement of all parties the trustees canceled the surety bond, released the surety company, and finished the building. By this action of the trustees the surety company was released from all liability.

The evidence fails to show any conspiracy, as alleged by appellee, and we are unable to see upon what theory is predicated the right of judgment against said surety company, and it is reversed and rendered as to it.

We think the evidence supports the verdict in all other respects. Judgment with the foregoing exception as to the surety company is affirmed.

Affirmed in part and reversed and rendered in part.

On Motion for Rehearing.

In passing upon the right of the Rice common school district No. 2 to recover a judgment against the Fidelity & Deposit Company, we said:

“The evidence fails to show any conspiracy, as alleged by appellee, and we are unable to see upon what theory is predicated the right of judgment against surety company, and it is reversed and rendered as to it.”

Appellee recovered no judgment against the bonding company, but the Rice common school district No. 2 did recover a judgment for the amount, and judgment was rendered against it. So we were in error in predicating our judgment on the ground we did.

While a wrong reason was given, the correct result, under the facts, is the same. When Johnson & Meier abandoned the construction of the building, the bonding company agreed with the trustees of the Rice district No. 2 to take charge and complete it. Some time after it was further agreed between them that the Rice school district should take charge of said building and complete it, that the bonding company should be released from said bond, and the bond was canceled and surrendered by the trustees. This agreement constituted a valuable consideration for the release of the bonding company from any obligation on the bond. Therefore there was no obligation upon which appellant was authorized to recover from the bonding company.

The motion for rehearing is overruled.
      <g=>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. JARAMILLA.
    (No. 5520.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1. Railroads <&wkey;398 — Intoxicated Trespasser — Discovered Peril — Negligence — SUFFICIENCY OF EVIDENCE.
    Evidence in an action for the death of an intoxicated trespasser from being run over by a train while he was lying on the track within the limits of a village at a place where the track was habitually used as a foot path held, to show that the operatives of defendant’s locomotive were willfully and wantonly negligent in failing to use the proper means to avert danger to deceased after discovering his position of peril.
    [Ed. Note. — Eor other cases, see Railroads, Cent.Dig. §§ 1356, 3358-1303; Dcc.Dig. &wkey;398.]
    2. Railroads <&wkey;37G — Intoxicated Trespasser — Duty to Keep Lookout.
    A railroad company owes the duty as to a drunken trespasser lying on the track within the limits of a village at a place where the track is commonly used as a footpath to keep a reasonable lookout on its locomotives.
    i[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dee. Dig. <&wkey;376J
    3. Railroads &wkey;>376 — Intoxicated Trespasser-Discovered Peril.
    The duty of the operatives of a locomotive to use reasonable care to avoid injury after discovering the presence of a trespasser lying on the track is not destroyed or weakened by the fact that the trespasser is drunk.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. &wkey;376.]
    4. Trial <&wkey;351 — Refusal of Special Issue.
    The refusal of a special issue on a matter presented by the court was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351.]
    5. Appeal and Error <&wkey;1062 — Harmless Error — Submission of Issues.
    In an action for the death of an intoxicated trespasser from being run over by a train while he was lying on the track within the limits of a village, the submission of the issue whether the operatives of the locomotive were negligent in failing to keep a lookout while running through the village, if error, was harmless, where th’e jury found that sufficient effort was not made to stop the train after the peril of deceased was discovered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 423,2-4218; Dec.Dig. <&wkey;1062.]
    6. Railroads i&wkey;351 — Injury to Trespasser —Submission of Issues —Duty to Keep Lookout — Passway.
    The issue whether the track was used as a passway at the place of the accident was material to the question of defendant’s duty to keep a lookout, and hence was properly submitted, though deceased was lying down when struck by the train.
    TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. *§ — 1351.)
    7. Appeal and Error <©=^1060 — Argument of Counsel — Cure of Error — Verdict.
    Remarks of counsel which were not supported by the evidence were not prejudicial, where they were promptly withdrawn by the court, and the small verdict returned indicated that the jury were not influenced thereby.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;1060.)
    Appeal from District Court, Wilson County ; O. A. McCracken, Special Judge.
    Action by Antonia Jaramilla against the San Antonio & Aransas Pass Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Browne Bros., of San Antonio, for appellant. J. E. Canfield, of Floresville, and Dibrell & Mosheim, of Seguin, for appellee.
   FLY, C. J.

This is a suit by appellee, in her capacity as the widow of Vicente Jara-milla, to recover damages arising from his negligent killing by appellant. It was alleged that Vicente Jaramilla was a licensee on the track of appellant a short distance north of the town of Floresville, and while on said track from some cause was unable to leave the same, and unable to realize the danger of his position, and while in such place and condition was discovered by the employés of appellant on an approaching train, and was run over and killed; such employés after discovering the peril of deceased making no adequate effort to stop the train. It was further alleged that no warning was given of the approach of the train. Appellant filed general and special demurrers, and answered that deceased, while in a drunken condition, went upon the track and fell asleep, “or was asleep without being drunk, or was drunk without being asleep”; that when he was discovered on the track it was too late, with the use of all means at the hands of the employés, to stop the long freight train; that it was at night; and that the proper signals were given of the approach of the train. The case was submitted on special issues, all being answered in favor of appellee, except that deceased was guilty of contributory negligence in lying down on the track. The damages were assessed at 81,500, and judgment was accordingly so rendered for appellee.

The jury found, and the evidence showed, that when Vicente Jaramilla was struck by the locomotive of appellant, he was lying across the track; that he was discovered in his perilous position by the employés operating the train at such a distance that the train could have been safely stopped in time to have avoided running over and killing deceased; that the said employés did not use all means in their power consistent with their own safety to stop the train, and by such failure caused the death of the husband of appellee. ¡

It is very difficult to prove that employés operating a train saw a person on the track; for it is an act on their part to which they alone can definitely and directly swear. It would be almost unimaginable for a case to arise in which such employés would admit that they saw a person on the track, but failed to use all means in their power to stop the train and prevent the disaster. To ex-peet such testimony would be making a draft on traman nature that would be unreasonable. A case of discovered peril and failure to use proper means to avert the danger to the person in the perilous position must therefore usually be proved by circumstantial evidence. The engineer testified that "when he reached the top of the hill, just north of Floresville, he cut off the steam and was running on a downgrade, without steam, when he ascertained that an object on the track which he had noticed some time before was a man, and that he then threw the “brakes into emergency” and worked the said lever to get all the braking power he could. He admitted that he had testified before a justice of the peace, but had failed to testify that he ever cut off the steam, nor did he mention it on his first examination in the trial of this case. On being recalled, after W. H. Martin had testified that, “If you did not shut the steam off, it would have a tendency to keep the engine in motion until the brakes checked it down; it would be longer in stopping” he swore for the first time that he had shut off the steam at the top of the hill. It was in proof that the man was seen by the engineer at a distance of 600 to 800 feet, and the fireman swore that he first saw deceased at a distance of 300 feet, and one second after he first saw the object he knew it was a man. The train, moving at the rate of 25 miles an hour, as testified by the employés, could not have gone but little more than 36 feet, or was at a distance of more than 260 feet from the man on the track. There was testimony to the effect that the train could have been stopped in 210 to 240 feet. The train went from 550 to 600 feet, at least, from the place where the employes admitted the object was known to be a man. The grade was a moderate one of about 31 or 32 feet to the mile on a straight track. Martin swore that a man lying down on the track could be seen at a distance of 500 feet. The engineer admitted that he saw the object on the track when he .was 600 or 800 feet off, but did not slacken his speed or make any attempt to stop the train until within some 200 feet of the man. The testimony of the conductor was that the air went on when the caboose was on the crossing about 1,200 to 1,500 feet from where deceased was lying at or near the middle bridge, and the engine at that time must have been from 400 to 700 feet from deceased. According to the. engineer, he applied the brakes as soon as he saw the object was a man. The track was straight for a distance of about 1,400 feet from where the locomotive passed around the curve to where deceased lay, and the engineer must have seen him as soon as he passed the curve. Common prudence and ordinary care should have caused him to at least slacken the speed of his train so as to have it under control when he ascertained what the object was, especially as he was approaching a town at the rate of 25 miles an hour. However, he made no effort, according to his own account until within 200 feet of the prostrate man, to stop the train. The train went 1,000 feet before it was stopped after the brakes had been applied, which indicates that the steam had not been cut off.

There was testimony introduced by appel-lee which tended to show that the brakes were not applied until the locomotive was within 20 or 25 feet of where the deceased was lying. There was some testimony tending to show that the track at the point where the husband of appellee was killed had been used for several years by the public as a passageway, and that this fact was known to appellant. The road at that point was in the village of Lodi, a suburb of Floresville, and a number of families resided there. One witness testified that “they have about 200 good votes up there.”

The facts show that the employés on the train must have seen deceased lying on the track at such a distance that the train could have been stopped before reaching deceased, with safety to the employés and the train. The duty of keeping a lookout on the track when running through a village and when about to enter the county seat of the county rested upon appellant. Not only was the train running through a village, but along a part of the track habitually used by the public, and, under the most favorable decisions of the Supreme Court to railway companies, this habitual use placed the duty on the railway company of watching out for people at such places. Railway v. Shiflet, 98 Tex. 326, 83 S. W. 677; Railway v. Malone, 102 Tex. 269, 115 S. W. 1158. While the facts of this case bring it clearly within the purview of the cited cases, the writer does not wish to be understood as subscribing to the restricted view in those cases as to the duty of railway employés in keeping a lookout as to persons on the track. As said by this court in the case of Railway v. Broomhead, 140 S. W. 820, in which a writ of error was refused:

“The question in that case [Railway v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632] was, and should be in every like case: Was reasonable care exercised in discovering the trespasser or licensee on the track, regardless of whether people were in the habit of using the track for a passageway or not?”

This principle of law was repeated by this court in the case of Railway v. Huegle, 158 S. W. 198, and the case of Broomhead was quoted from and approved. In that case a writ of error was refused by the Supreme Court, and it may be taken as the law in such cases.

The fact that deceased was a drunken trespasser upon the track of appellant did not give it license to run over and kill him. It owed the same care to the drunken trespasser as to the sober one, and the unfortunate person who becomes intoxicated and goes upon a railroad track and stands or lies upon it is not an outlaw that may be slain by the servants of a railway company. As said in Railway v. Weisen, 65 Tex. 443:

“A man docs not forfeit bis life, or Ms right to remain whole, by going whore he has no right to go, or being where he has no business.”

We know of no law that would relieve a railway company of all duty to watch its track and use all reasonable means to prevent the injury of a human being discovered thereon, just because he was besotted and stupefied by intoxicating liquor. The same law applies to him as would to the unfortunate individual who might fall down in an epileptic convulsion. It is true that the drunken person is not relieved by his condition from the effects of his contributory negligence and employés of railway companies owe no higher duty to him than to the sober man, unless they are cognizant of his irresponsible condition. The same duty is owed to him as though he were sober, in the absence of knowledge of his condition. Elliott, Railroads, § 1172.

It is insisted that in the case of Railway v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632, that the railway company was held liable because the man fell down in a fit, and his position on the track was providential. No such doctrine was 'announced in that case, but it is the leading case in holding that it is the duty of a railway company to keep a lookout, and that it was negligence not to discover a man upon the track in open view of the operatives. It was further held that the presence of a man on a railroad track in a drunken condition was contributory negligence but that such negligence did not license the railroad company to wantonly or willfully kill him; in other words, the doctrine of discovered peril would not be destroyed or weakened by the drunken condition of the man on the track. The evidence in this case shows, as found by the jury, willful or wanton negligence on the part of the operatives on the locomotive. No case has gone further than to hold that the duty of keeping a lookout did not arise in the case of a drunken man on a railway track, and that the writer deems to be a cruel and barbarous doctrine. The writer, without committing the court to that ruling, believes that the duty of keeping a lookout rests upon the employes of railway companies in every city, town, or village, or other place persons are likely to enter upon the track, whether they be drunk or sober. The foregoing rulings dispose of the first, second, third, and fourth assignments of error.

Special issue No. 10, the rejection of which is complained of in the fifth assignment of error, was properly refused. The same matter was presented by the court, and it was unnecessary to repeat it. The sixth, seventh, and eighth assignments are disposed of in the consideration of the first three assignments.

If it be admitted that the operatives of the engine were under no obligation while running through a village and that it was not negligence for them to fail to keep such watch, the submission of such issue and the finding that the operatives were negligent in not keeping such watch could not have injured appellant, because the jury found that sufficient effort was not made to stop the train after the peril of deceased was discovered, and this finding was sufficient upon which to base the judgment of the court This disposes of the ninth, tenth, and eleventh ■ assignments of error.

It was not error to submit the issue as to whether the track was used as a pass-: way, even though deceased was lying down when struck, because that fact had a bearing upon whether it was the duty of appellant to keep a lookout. Constant use of the track by pedestrians, both day and night, charged appellant with notice of that fact. The twelfth and thirteenth assignments of error are overruled.

The remarks of appellee’s counsel complained of in the fifteenth assignment of error were not supported by the evidence, but they were promptly withdrawn from the jury by the court, and the small verdict would indicate that the jury were not influenced thereby. There is nothing to indicate that the jury understood • or applied the quotation, ‘“Let the galled jade wince,” as such an expression is never used in this day in regard to a soreback horse or mule whose withers are hurt by the saddle.

The sixteenth and seventeenth assignments of error are overruled.

The judgment is affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    GULF, C. & S. F. RY. CO. v. MOSS et ux.
    (No. 7378.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 30, 1915.
    Rehearing Denied Dec. 11, 1915.)
    1. Negligence <&wkey;39 — Trespassers — Who Are.
    The doctrine of the turntable cases does not apply to a railroad company which had fenced off its right of way, and a child who slipped through a hole broken in the fence is a trespasser, though some of the railroad company’s servants had knowledge of the hole.
    [Ed. Note. — Por other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. <&wkey;>39.]
    2. Railroads &wkey;>359 — Injuries to Persons on Tracks — Lookout.
    Where a railroad company fenced its right of way and attempted to keep trespassers and others away, it is not guilty of negligence because not maintaining a lookout to discover whether small children were under or beneath its cars before starting a train which had been stopped only a few minutes; for that would have practically required employés to go the entire length of the train.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1238, 1239; Dec. Dig. &wkey;359.]

      3. BailRoads ‘&wkey;398 — Injuries to Persons on Tracks — Actions—Negligence.
    Where the maimer in which a small child trespassing on railroad tracks met his death under a train was not disclosed, it not being shown whether he attempted to board the train or whether he was underneath the ears when started, the failure of the railroad company to maintain a lookout to discover children’s presence before starting the train was not the proximate cause of the injury.
    [Ed. Note. — For other cases, see Railroads, Cent.Dig. §§ 1356,1358-1363; Dec.Dig. &wkey;398.J
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by T. G. Moss and. wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    Terry, Cavin & Mills, of Galveston, Lee & Lomax, of Ft. Worth, and E. M. Browder, of Dallas, for appellant. W. W. Nelms and El J. Gibson, both of Dallas, for appellees.
   TALBOT, J.

T. G. Moss and wife brought this suit to recover damages alleged to have been sustained by them on account of the death of their minor son, Carlean Moss, who was run over by a train of freight cars owned by the appellant and being operated by its servants in its switchyard at Dallas, Tex., on October 19, 1913.

The petition, so far as is necessary to state, alleges, in substance, that prior to the injury complained of defendant had built a high board fence along its right of way, surrounding its switchyard in East Dallas, for the purpose of preventing children of tender years from going into and upon its tracks, but that on the date of the accident, and prior thereto, defendant had negligently permitted an opening to be made in such fence near the intersection of Ferris and Merlin streets, through which opening the public, including children and some of defendant’s employés, were accustomed to enter defendant’s yards, and that defendant had knowledge of such custom, and, having acquiesced therein, persons who entered its yards at that point became licensees; that on the day of the accident one of appellant’s trains had stopped in its yard, with the rear car about 50 feet south of the hole in the fence referred to, and that plaintiffs’ son, being of immature years and incapable of appreciating the danger of so doing, caught on one of the cars in the train, and thereafter fell beneath the wheels when the train was put in motion and was killed; that, under the facts and circumstances as they existed at the time plaintiffs’ son was run over and killed, it was the duty of the defendant company to keep a proper lookout upon its tracks in every direction and to prevent their son from entering upon defendant’s premises or going upon its railway tracks or upon its cars, but that defendant wholly failed at the time of the injury of their son to maintain and keep such a lookout or a lookout such as the facts and circumstances in evidence demanded, and. wholly failed to warn their said son of the dangers incident to entering upon its said premises and railway tracks and cars; and that the failure to keep such lookout and give such warning was the proximate cause of the fatal injury to their son, Carlean Moss. The defendant denied the issues of negligence as tendered by plaintiffs, and averred that by constructing the fence surrounding its yards, and by repeatedly closing the holes in the fence when the boards were torn off, and by repeated written and verbal warnings, persons who entered its yards were advised that their conduct in so doing was against the wish and desire of defendant, and that deceased therefore was not a licensee, but a trespasser, whose presence was never discovered until after the accident, and wherefore defendant was not liable. Defendant pleaded also contributory negligence both on the part of plaintiffs and their deceased son, barring a recovery.

The defendant objected to the submission of the case to the jury and to the court’s charge prepared for that purpose, and requested a special charge directing the jury to return a verdict in its favor; but the objections and special charge requested were overruled and denied, and the jury instructed, in substance, that if they should find that the servants of the defendant in charge of its train failed to exercise ordinary care to keep a lookout for and avoid injuring plaintiffs’ son, Carlean Moss, and such failure was the proximate cause of his injury and death, to find for plaintiffs. The jury’s findings were favorable to the plaintiffs, and their damages assessed at $2,500. The issues of contributory negligence on the part of Carlean Moss ¿nd of his parents were also submitted to the jury and resolved by the jury in favor of plaintiffs. There is little or no conflict in the evidence affecting the issue submitted to the jury. The plaintiffs’ son, Carlean Moss, on the 19th day of October was struck or run over by a train of freight cars being moved along the main track of defendant’s road in its switchyard in East Dallas, and as a result of the injury received died about 3 o’clock in the afternoon of that day. At the time injured Carlean was seven years, three months, and a few days old. He lived with his parents at 2731 Ferris street, about 50 yards west of Merlin street, and there were many other houses on Ferris street fronting the defendant’s railroad tracks and occupied by families, neighbors of the plaintiffs; in other words, that portion of the city of Dallas contiguous to or near defendant’s said switch-yard was thickly populated. Ferris street runs practically east and west, and Merlin street runs about north and south. The defendant’s switchyard was on the south side of Ferris street, and between Ferris street and the main, track upon which Carlean was struck and injured there was a switch track called the scale track. Along the south side of Ferris street and between it and the defendant’s switchyard there was a plank fence about 6 feet high, built by the defendant with a view of preventing persons from going upon its premises and railroad tracks. This fence runs east and west parallel with the defendant’s railway tracks and switch-yard for several blocks. About on a line with the west side of Merlin street, which intersects Ferris street, two or three planks had been knocked off the fence, making a hole therein about 3 feet wide, through which people could easily pass. This hole had been in the fence some months probably prior to the accident in question. It seems that about as fast as the employes of the defendant would nail the planks on and close the hole some person or persons unknown to them would knock them off. Many persons were in the habit of passing through this hole and thence upon and across defendant’s railroad tracks going to church and other places. Some of the employés of defendant also passed through this hole in the fence going to and returning from their work, and children habitually passed through the hole and upon defendant’s premises and tracks at that point. This was known to defendant’s employes, but without their consent and over their protest. Signs1 were posted warning persons of the danger of going upon the railroad tracks, and numerous means were resorted to by defendant to give warning of such danger and to prevent trespassing upon its property. These warnings and efforts, however, had been up to the time of the injury to Garlean Moss ignored. On the day Garlean Moss was injured the switch crew of defendant came into the switchyard with a train of some 18 or 20 cars. This train came from .the west going east. . The train crew consisted of B. S. Miller, engineer, G. M. Dooley, fireman, R. D. Vaughan, foreman, and L. Combs and G. M. Mays, switchmen or helpers. Mr. Vaughan controlled the movements of the train, and as the train moved east he and one of the “helpers” rode on the front end of the engine, or on the south side thereof, and the position of the other “helper” was on the rear part of the train. The engineer and fireman occupied positions in the cab of the engine — the engineer on the right side and the fireman usually on the left side. When the train causing the death of Carlean Moss came into the switchya'rd, it was stopped on the main track with some of the cars east and some of them west of Merlin street and the hole in the fence. Some of the witnesses stated that the train was stopped with the middle opposite the hole in the fence. The train remained standing in this position two or three minutes, and was then started forward again. Just after the train was thus started screams of a child were heard by G. M. Mays, the .rear helper, and Mrs. Long, a neighbor of the plaintiffs, and probably other neighbors. It was discovered that this child was Garlean Moss. Prior to the time he screamed he had not been seen near or upon the railroad track by any employs of the defendant. The first employe of the defendant that saw him was G. M. Mays, the rear “helper.” He testified that the first “I knew of this accident was when the boy holloaed”; that, when the car passed, the boy was sitting near the switch stand, something like 8 or 10 feet, holding up.the stub of his leg like that (indicating), holloaing; that prior to that time he had not seen or heard the boy; that as he came up there he was facing the fence and looking behind, looking out for the rear end of the train; that he was sitting on the running board in the middle of the car or something near the middle of the car, and on top of the car; that, when he saw the boy there on the ground and heard him holloa, the next thing he did was to report it to his foreman. The witness Mrs. Long having heard the screams of the little boy, ran to him, and a little later his father came and carried him home. He was thence, it seems, carried to St. Paul Sanitarium, and shortly thereafter died. When seen sitting near the switch stand, and when picked up by by his father, he was, with reference to the hole in the fence, about 50 feet east of it. About ten minutes before the accident Mrs. Gooch, a neighbor of the plaintiffs, saw Carlean Moss and his little sister and told them “not to go inside of the fence there; some day one or the other of them would get killed.’'’ She further stated that she did not see Garlean after he got inside the fence, and that the first thing that attracted her attention was his screams. At the time the accident occurred the members of the train crew were in their respective places on the train, and no one of them occupied a position from which he could have seen the accident, except possibly the fireman and the rear helper, Mays, and no special effort was made by either of them at the time the train was started after it was stopped in the yards to ascertain whether or not any person was on or near that portion of the train that struck Garlean Moss, or on or attempting to get on the train at any point between the engine and rear ear. Just when he went to the train or what he was doing at the time he was struck or run over does not appear. He was1 not struck by the engine, but by some car of the train that was west of the hole in the fence.

The contention of the appellant is, in substance: (1) That it did not owe Garlean Moss, or the plaintiffs, the duty to keep a lookout to discover his presence at the place where he was struck and injured by the train, and that, as there was no evidence adduced showing or tending to show that his presence was discovered in time to have prevented injury to him, the trial court erred in not instructing the jury, as requested, to return a verdict in its favor; (2) that the evidence adduced at the trial in support of ap-pellee’s action was not legally sufficient to warrant the submission of the case to a jury, because it does not appear therefrom, even if it was appellant’s duty to keep a lookout to discover the presence of Garlean Moss, that the failure to keep such a lookout was the proximate cause of his injury and death, and for this reason the court should have instructed a verdict in its favor.

It is not contended, nor could such contention reasonably be made, that the case comes within the rule applicable to and governing what are known as the turntable cases. In such cases liability is predicated upon the fact that a turntable is a dangerous thing, that it is peculiarly attractive to children as a plaything, the danger of which they are not capable of appreciating, and “that to leave them exposed should be deemed equivalent to an invitation to use them, or that, when unsecured, they are so obviously dangerous to children that, when it is discovered that they are using them, it is negligence on the part of the owner not to take some steps to guard them against the danger.” It is, however, fundamental that, in an action to recover damages for injury to or death of a child, as in cases . where damages are sought to he recovered for injuries to or the death of adults, there can be no recovery unless the defendant has been guilty of a breach of duty. Clearly Garlean Moss was a trespasser upon appellant’s premises, and the first question is: Was the appellant guilty of a breach of duty owed by it to him in failing to keep a lookout such as would probably have been necessary to discover his presence along its train of 18 or 20 cars, just before or at the time said train was put in motion, after it had been stopped a few minutes near the place where the accident occurred to see if he or some one might be in dangerous proximity to its train, it appearing that many persons, including small children, habitually passed through the hole in the plank fence and upon appellant’s track near the place where the said Garlean Moss was injured? To answer this question in the affirmative would be equivalent to holding that it was the duty of the appellant, before starting its train at the time and place in question, to have sent some one of its employés along practically the entire length of the train to ascertain if any person was on or under any one of the cars of the train or within such proximity thereto as to reasonably lead to the belief that he would get on or tinder the car and into a place of danger. A lookout less than this would have been inadequate. No adjudicated case has been cited holding that such a duty rests upon a railway company under such or a similar state of facts as we have in the present ease, and we know of no case so holding. On. the contrary we think the case of Railway Company v. Davis, 110 S. W. 939, in which a writ of error was denied by the Supreme Court, holds, in effect, that no such duty is imposed upon railway companies. In that case the appellee, Davis, was injured in the yards of the railway company at Mt. Pleasant, Tex. His leg and arm were run over by the wheels of one of the appellant’s freight cars on which he had been riding, and badly injured. He lacked two months of being nine years of age. The tracks of the railway company at Mt. Pleasant consisted of the main line and two switch tracks, all of which ran practically north and south through the town. A large number of residences were situated on the east side of the railroad, and the school building and business houses were on the west side. On the day young Davis was injured one of appellant’s local freight trains arrived at Mt. Pleasant, and the crew did some switching in the yards. In doing this work the engine ran back on the house track to a point near the depot, passing the place where Davis and some of his compan' ions were sitting, and then started back south with two box cars attached. When the train passed Davis and his companions going south they were sitting or standing within a few feet of the track, and as the cars passed Davis and a boy about his age swung onto the rear car, with the intention of riding down to the switch and back again. After riding some distance Davis fell from the car and received the injuries stated. The negligence relied upon for a recovery consisted of the alleged failure of the railway company’s employes to exercise ordinary care to prevent Davis from swinging onto or getting on the cars or in a place of danger when he was liable to be injured in the ordinary operation of the train, and in failing to discover and protect him after he did so, that Davis was an immature child, without sufficient judgment and discretion to understand and appreciate the danger of such risks, and that such conditions existed at Mt. Pleasant at the time of the accident as would reasonably put the appellant’s em-ployés upon notice that an attempt to ride upon its cars by Davis and other immature children would be made. Much testimony was offered upon the trial tending to show that for a considerable time prior to the date of the accident a large number of children, ranging in age from six to fifteen years, were in the habit of congregating at the appellant’s depot in the town of Mt. Pleasant and riding on its cars; that they would swing onto moving freight trains and passenger coaches whenever opportunity offered. In rebuttal, the railway company introduced evidence to the effect that its employés had made repeated efforts to put a stop to this practice of t¿e children; that they had warned them of its danger, and had driven them off when discovered riding on or about their trains; that they had applied to the officers for and had received assistance from them in keeping the children away from their trains, but that, in spite of those and other efforts, they were unable to keep many small boys from stealing rides. The conductor of the train testified that a short time before the accident, and while they were switching in the yards, he saw some boys there about the cars and made them leave, but the testimony made it clear that none of the train crew, or any employs of the railway company, saw Davis when he swung onto the side of the car. After reviewing charges given by the trial court on the issue of contributory negligence, and stating that the charge given and the refusal of the court to give special charges reguested by the railway company was sufficient grounds to reverse, the Court of Civil Appeals said they would not dispose of the case on those grounds alone, for the reason that, in the opinion of the court, the case should bo reversed and judgment rendered in favor of the railway company, on the ground that the evidence was insufficient to warrant a verdict for the appellee Davis. The court then proceeds to cite and discuss “turntable cases,” states the exceptions, based upon principles of humanity, to the general rule that the owner of premises or machinery owes no duty to a trespasser further than not to willfully or wantonly injure him after discovering his presence, and recognizes the doctrine that the duty is imposed upon railway companies in the operation of their trains to keep a lookout in the direction in which the trains are being moved to prevent injuring those who may be upon the track, and that a failure in the performance of that duty will render the company liable for injuries sustained by those who are in law deemed incapable of being guilty of contributory negligence, or who may be there under circumstances that negative the existence of contributory negligence, citing Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 233; Railway Company v. Hewitt, 67 Tex. 479, 3 S. W. 705, 60 Am. Rep. 32. But this rule the court holds, and which was approved by the Supreme Court, imposes upon the servants of railway companies only the duty of keeping a lookout along their tracks ahead in the direction in which the trains may be moving to avoid collisions with and injury to any person who may be upon the track. To impose the duty upon the servants of a railway company to look ahead to discover persons who may be upon its track in front of an approaching train, and thus avoid injury to such persons, is a practicable and reasonable rule, but to impose upon them the further obligation or duty to inspect their trains being switched in their yards when or after being set in motion for the purpose of discovering and avoiding running over and injuring even children who may be trespassing upon their premises and cars is to impede the progress of their work, and, as said in Railway v. Davis, supra, place upon them an unreasonable and unjust burden. We do hot think that either the case of Railway Company v. Abernathy, 28 Tex. Civ. App. 613, 68 S. W. 539, or Ollis v. Railway Co., 31 Tex. Civ. App. 601, 73 S. W. 30, or any other case cited by able counsel for ap-pellee, would warrant us in holding that such a duty rested upon appellant under the circumstances of this case; and such would be the effect of our holding were we to sustain the view of able counsel for appellee, as we gather it from their brief, and affirm the judgment of the lower court. The cases last above cited were relied upon in Davis’ Case, and the Court of Civil Appeals held they were not in point. For practically the same reasons that they were held inapplicable in that ease they are not applicable in the present case.

But, if we should be mistaken in the views expressed above, and it be conceded that it was the duty of the servants of appellant to have kept a proper lookout to discover the presence of Carlean Moss, and thereby avoided injury to him, still we think it cannot be said from the facts and circumstances shown that the failure to keep such lookout was the proximate cause of his injury and death. This view is supported by the decision of the Supreme Court in the case of Railway Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049. Just when Carlean Moss got upon or in dangerous proximity to appellant’s train, how long he had (been upon it or near it before he was struck or run over, what his position was, whether concealed under the train, swinging onto or attempting to get on it, is not shown by the evidence. In the case of Railway Co. v. Shoemaker, supra, the Supreme Court, after discussing the question of the failure of the employés of the railway company to keep a proper lookout, said:

“But, aside from this, the failure to keep a proper lookout, either from incapacity or other reason, could only be deemed the proximate cause of the death, when it appeared that the keeping of it would have prevented the unfortunate occurrence, and no inference of this fact can be drawn from the evidence. What were the boys doing as the train approached them? How long were they on the track before they were struck? What was their position? An answer to these questions must be found before it can be said that there was a failure to keep a proper lookout, and that such lookout would have discovered them [the boys] in danger in time to have enabled those controlling the train to have saved them; and for such answer the evidence may be searched in vain. This fact of causal connection between an alleged negligent act or omission and an injury can no more be presumed than can the act or omission itself.”

This language is applicable here, and, the evidence contained in the statement of facts sent to this court failing to show' what Car-lean Moss was doing when struck by appellant’s train, how long he had been in close proximity to the train, or what his position was when struck, it does not appear that the keeping of a proper lookout would have prevented the sad and unfortunate accident which resulted in his death. If the views expressed' are correct, and we believe they are, it becomes unnecessary to consider other questions presented in appellant’s brief.

Holding, as we do, that the evidence was insufficient to authorize a recovery by appel-lees, and the case having been fully developed, the judgment of the court below will be reversed, and judgment rendered in this court for the appellant.

Reversed and rendered.
      ig^Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§rs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HEIDELBERG AMUSEMENT CLUB et al. v. MERCEDES LUMBER CO. et al.
    (No. 5555.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.)
    1. Judges &wkey;?19 — Disqualification — Special Judges — Minute Entries — Waives.
    Defendants, by presenting application for continuance to make new parties, waive the failure to make entries in the minutes of the disqualification of the regular judge and the taking of oath by the special judge.
    [Ed. Noté. — For other cases, see Judges, Cent. Dig. §§ 64-67; Dec. Dig. &wkey;>19.]
    2. Partnership &wkey;>219 — Suing Firm and Members — Dismissal as to Member — Effect.
    Where a partnership and members thereof are sued, an unqualified dismissal as to one of the members, because not served and because of his insolvency, prevents judgment against the firm, and limits it to the members.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dee. Dig. &wkey;
    Error from Hidalgo County Court; W. H. Gossage, Judge.
    Action by the Mercedes Lumber Company against the Heidelberg Amusement Club and others. Judgment for plaintiff, and certain defendants bring error.
    Reformed and affirmed.
    Amos Rich, of Brownsville, and Alex. Wheless, of Mercedes, for plaintiffs in error. Robt. J. Smith, of Piqua, Ohio, W. H. Gos-sage, of Edinburg, and Canales & Dancy, of Brownsville, for defendants in error.
   MOURSUND, J.

The Mercedes Lumber Company, on May 27, 1914, sued Peter Lange, John Lertora, George Marsh, Homer Mack, Alexander Wheless, and Fred Lange, alleging that they compose an unincorporated club or association named or styled the Heidelberg Amusement Club, and that plaintiff had sold defendants certain supplies for said club or association for which there remained due and unpaid the sum of $285.22, for which amount, with interest, judgment was asked. On November 28, 1914, the defendants Peter and Fred Lange, John Ler-tora, and George Marsh filed an answer, wherein, by exception and plea, they urged the two-year statute of limitation. On the same day defendant Marsh filed a motion to make additional parties defendant, naming various persons, who, he alleged, were members of. the club, and as such jointly and severally liable for the debt due plaintiff. This motion was overruled on the same day. The plaintiff dismissed as to Homer Mack, who had not been served with citation, alleging that he was and had been, since prior to the filing of the suit, hopelessly insolvent. The defendants on said date also filed an answer, containing a general demurrer and a general denial, and the defendant Wheless filed a separate answer, denying liability and pleading that he was not a member of said club and never had been. It appears that on November 28, 1914, a judgment by default was rendered against Peter Lange, John Ler-tora, George Marsh, Alexander Wheless, and Fred Lange, and also against the Heidelberg Amusement Club. On November 30, 1914, the defendants filed a motion to set aside the judgment, which was dismissed by the court, a lengthy order being entered, wherein it is stated that the pleadings, consisting of the general demurrer and general denial, were filed after judgment was rendered. On April 30, 1915, Peter Lange, Fred Lange, Alexander Wheless, and the Heidelberg Amusement Club filed their petition for writ of error.

Plaintiffs in error contend that the special judge did not qualify by taking the oath of office, and that no entry was made 'of the disqualification of the regular judge, and therefore the judgment should be reversed. The record does not show that any entry was made concerning the disqualification of the regular judge or to the effect that the oath of office was administered to H. B. Galbraith, the special judge. It is admitted that the county judge was disqualified by reason of having been attorney for plaintiffs, and that said H. B. Galbraith was agreed upon by the parties to try the case. It further appears that appellants made no objection to proceeding with the case on the ground that the proper entries had not been made in the minutes, but on the contrary presented an application to continue the case in order that additional parties could be brought in, which was overruled by the special judge so agreed upon, and also that defendants invoked the rule for costs. No complaint was made on' account of the failure to make the entries concerning disqualification of the regular judge, and taking the oath of office by the special judge, until the application for writ of error was filed. We think it must be held that plaintiffs in error, by presenting their application for continuance to make new parties, waived the failure to make said entries. Ford v. First Nat’l Bank, 34 S. W. 684.

It is also contended that error was committed in awarding a judgment against the club, because among the parties sued as members was Homer Mack, as to whom plaintiff dismissed. The proposition relied upon is that where suit is dismissed as to one member of the firm and a personal judgment rendered against the others, a judgment against the partnership property is without effect. The record shows that plaintiff alleged that Black was a partner, and it appears from, the order dismissing the suit as to him that it was based solely on the grounds of inability to procure service upon him and his insolvency. The dismissal was not qualified in any way, and while it is true that the judgment recites that evidence was introduced, we think, in view of the allegations of the petition and the form of the motion to dismiss, as well as the order thereon, no judgment should have been rendered against the Heidelberg Amusement Club. McManus v. Cash & Luckel, 101 Tex. 261, 108 S. W. 803; Glasscock v. Price, 92 Tex. 271, 47 S. W. 965; Scalfi v. State, 96 Tex. 559, 73 S. W. 441; Ketelsen & Degetau v. Pratt Bros., 100 S. W. 1172. The judgment will be reformed so as to provide that plaintiff take nothing as against .said club. As to the other plaintiffs in error, it is affirmed. As to those defendants who did not appeal, the judgment remains undisturbed. The costs of this appeal will be taxed against plaintiffs in error Peter Lange, Fred Lange, and Alexander Wheless.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    TEXAS & PACIFIC COAL CO. v. GIBSON.

    (No. 8256.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 30, 1915.
    Rehearing Denied Dec. 4, 1915.)
    1. Master and Servant <&wkey;25S — Injuries to Servant — Actions—Petition.
    A petition averring defendant’s operation of a narrow gauge railroad at the mouth of a shaft of its coal mine, that the cars were operated by means of a stationary steam engine, that while plaintiff was oiling the shive wheel the engineer in charge without notice negligently and carelessly started the engine, that defendant owed plaintiff the duty to employ a competent and prudent engineer, that the engineer was not prudent but was reckless, and that such negligence was the proximate cause of the injury, is sufficient to sustain a recovery on the ground that defendant was negligent in the employment of an incompetent engineer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. <&wkey;> 258.]
    2. Master and Servant <&wkey;279 — Injuries to Servant — Negligence.
    In a servant’s action, evidence held to warrant recovery on the ground that the master was negligent in employing and retaining in employment an incompetent engineer, whose negligence caused the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. <&wkey;>279.]
    3. Master and Servant &wkey;>264r — Injuries to Servant — Petition.
    A petition averring that the defendant master was negligent in employing an incompetent and reckless engineer will support recovery on evidence showing negligence in retaining such a person in .its employ.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <i&wkey; 264.]
    4. Master and Servant <&wkey;279 — Injuries to Servant — Actions—Evidence.
    In a servant’s action, evidence held to warrant a finding that the engineer, who started the machine which caused the injury, was negligent.
    LEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. &wkey;279.]
    5. Master and Servant <&wkey;2S9 — Injuries to Servant — Actions—Contributory Negligence.
    Whether a servant injured while oiling a shive wheel of a mine railroad was guilty of contributory negligence held under the evidence for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. &wkey;>289.]
    6. Appeal and Error <®=j1062 — Issues—Refusal.
    In an action by a servant injured while oiling a shive wheel of a narrow gauge mine railroad, where the court submitted issues whether the engineer in charge was competent, whether the defendant was negligent in employing an incompetent engineer, whether the shive wheel .was stationary when plaintiff began oiling it but was placed in motion while he was so engaged, whether the engineer was guilty of negligence and whether plaintiff was guilty of contributory negligence, the refusal of questions whether there was a safer method of oiling the wheel than that used and whether if plaintiff had undertaken to oil the wheel by a safer method he would have submitted himself to danger of injury, was not error, particularly in view of the definitions of negligence and contributory negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey; 1062.]
    7. Appeal and Error &wkey;j843 — Review—Determination.
    Where a judgment can be sustained upon one theory, the determination of whether it may be sustained on another is unnecessary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331 — 3341; Dec. Dig. 843.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by A. J. Gibson against the Texas & Pacific Coal Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John W. Wray, of Ft. Worth, for appellant. J. R. Stubblefield, of Eastland, for appellee.

      Writ oí error pending in Supreme Court.

   BUCK, J.

The appellee, plaintiff below, alleged in his petition that the defendant was extensively engaged in the mining of coal in shaft No. 1 in Erath county, Tex.; that in the performance of said work it was necessary to remove a great deal of rock, shale, and other waste matter from the said mine; that as a means of facilitating the work the defendant owned and operated a narrow gauge railroad, from the mouth of said shaft to the end of the dump, approximately 300 feet; that the said railroad consisted of ordinary cross-ties, with, iron rails spiked thereon, and that cars having four wheels and a body were at the time of the plaintiff’s 'injury being operated on the said railroad; that said cars were operated by means of a stationary engine propelled by steam; that there was a large drum on which was a steel cable, one end of which was attached to the said drum and the other attached to said cars, and a shive wheel which was attached to the said railroad and at the opposite end of said railroad from the stationary engine.

Plaintiff further alleged that he was an employé of defendant at the time of the injury, and while engaged in the operation of the said cars he was permanently injured on account of the negligence of the defendant; that the said injury consisted in the loss of one hand and the first, second, and third fingers on the other hand; that said injuries were inflicted while the plaintiff, without negligence on his part, was engaged in oiling the said shive wheel; that the engineer in charge of said stationary engine, without notice to the plaintiff, negligently and carelessly started the said engine, and placed said car in operation, and thereby injured the plaintiff.

Plaintiff further alleged that defendant owed him the duty “to employ and place in charge of the said engine a capable, competent, cautious, and prudent man; that the engineer, who was employed and placed in charge of said engine by the defendant was not a competent, cautious, or prudent engineer, and was reckless, and in this defendant was guilty of negligence, and the said negligence was the direct and proximate cause of plaintiff’s injuries hereinafter complained of.”

Defendant pleaded the general denial, special denials, contributory negligence, that if plaintiff was injured it was caused by the negligence of a fellow servant, and assumed risk.

The cause was submitted to the jury on special issues, and the jury found, first, that the engineer employed by the defendant to operate the stationary engine was not a competent engineer; second, that defendant was guilty of negligence in the selection of an incompetent engineer; third, that the shive wheel was not running at the time plaintiff began oiling the same, but that it was placed in motion while he was engaged in oiling it; fourth, that the engineer in charge of the engine was guilty of negligence in placing the machinery in operation under the circumstances and at the time he did; fifth, that plaintiff was not guilty of contributory negligence; and, sixth, that plaintiff was damaged in the sum of $15,000. Upon these findings by the jury the court rendered judgment for plaintiff in the sum of $15,000.

No question is presented as to the character and extent of plaintiff’s injuries, nor to .the amount of the verdict, if appellant under the facts is liable. Therefore there are presented for our consideration and determination the following questions: (1) Was defendant operating a “railroad” as contemplated under article 6640, Vernon’s Sayles’ Texas Civil Statutes, so as to make it liable for injuries resulting from the negligence of a fellow servant of the person injured? (2) If question No. 1 should be answered in the negative, are plaintiff’s allegations sufficient, in the absence of even a general demurrer to the petition, to sustain a recovery on the : ground that defendant was guilty of negligence in the employment of an incompetent engineer? (3) Does the evidence sustain the allegation, if admitted to be sufficient, of ssueh negligence on the part of defendant in employing an incompetent engineer? And (4) does the evidence sustain the allegation of ineompetency on the part of the engineer?

If the answers to questions 2, 3, and 4 should be in the affirmative, it then becomes immaterial as to whether or not the defendant was operating a “railroad” in the sense used in article 6640, supra.

In the case of Galveston Rope & Twine Co. v. Burkett, 2 Tex. Civ. App. 308, 21 S. W. 958, the following language is used:

“The first assignment of error is that the court erred in overruling' the exception to the petition because of its omission to allege that appellant knew, or by the use of ordinary care could have known, of the ineompetency of the servant from whose negligence it is alleged that appellee’s injury resulted. The petition alleged that the act of employing a servant was done in a careless and negligent manner, and that in consequence thereof an incompetent servant was taken into appellant’s service. This was not an abstract allegation that appellant was guilty of negligence, but a specification of the act complained of, and charged to have been done in a negligent manner. This we think was sufficient. To have alleged that appellant knew, or could have known, of the ineompetency of the employé, would have been only a further definition of the negligence charged against it, and it would have been a repetition in other language of what was involved in the averment made.”

In Pennsylvania Coal Co. v. Bowen, by the Supreme Court of Alabama, 159 Ala. 165, 49 South. 305, we find the following expression:

“The law is that in order to recover against the master, on account of the employment of incompetent servants, it must be shown that the master knew of the ineompetency of said servant, or by the exercise of reasonable diligence could have ascertained that fact. 1 Labatt, Master and Servant, pp. 418, 419, § 193a; Bailey’s Master’s Liability for Injuries to Servants, pp. 48-50; 26 Cyc. 1298, 1299; First Nat. Bank v. Chandler, 144 Ala. 286, 308, 39 South. 822, 113 Am, St. Rep. 39. It is also laid down, as a general proposition, that the complainant must allege that the master knew of the ineompetency, or by the exercise of reasonable care could have known; but it is not necessary that those exact words should be used. Under the general trend of our own and other 'decisions, we hold that the allegations in this complaint, that the ‘defendant violated its duty in this respect and negligently employed,’ etc., are a sufficient compliance with this requirement. 26 Cyc. 1393, 1394; Galveston Rope & Twine Co. v. Burkett [2 Tex. Civ. App. 308] 21 S. W. 958.”

In Pennsylvania Foundry & Mfg. Co. v. Probst, 114 Va. 264, 76 S. E. 323, the Supreme Court of Appeals of Virginia bolds sufficient, even as against special exception, similar allegations. We think the allegations in plaintiff’s petition as to this matter are sufficient, especially in the absence of even a general demurrer.

We now come to the question as to whether or not the evidence sustains the allegation of defendant’s negligence in employing an engineer who was incompetent to perform the duties with which he was charged, and in passing upon this question, it would seem that we are justified in fixing the date of the engineer’s employment by defendant in the capacity of an engineer as of the date of the accident, for though the evidence tends to show that Jackson, the engineer in question, had had some experience in running the engine operating this car, which experience according to different witnesses covered a period ranging from a few days to nine months, yet the evidence shows that immediately prior to this accident said Jackson had been employed in operating a dynamo, and that on the day of the accident he was withdrawn from his regular employment and put in charge of this hoisting engine. Mr. Wylie testified that he was in charge of No. 1 mine at the time of the accident, and that the regular engineer was a man by the name of Dee Lee, and that he (Wylie) had put Jackson in as a substitute that morning; that Jackson had been running the dynamo. E. H. Cunningham, a witness for plaintiff and one of the ’ employés of defendant, testified as follows:

“I have known Mm (Jackson) something like five years up to the time of Gibson’s injury, if I am not mistaken. During that time Jackson had run an engine something like 1% weeks before he took possession of it the last day of March, 1913. The latter days of March he had another job, and then I wouldn’t be positive, but I think the next day he ran the engine was the time he crippled Jack (meaning the plaintiff). I wouldn’t be -positive, but I think it was the next time he ran the engine after he gave it up, lacking about a day and a half being a month, but he had run it about a week and a half before that, I never heard of his running an engine anywhere else before that.”

The plaintiff testified that the railroad was approximately 300 feet long, and that the engineer standing in his place within the engine house and beside the throttle of the engine could have looked out of a window made for the purpose, and could have seen the opposite end of the dump, and if a person had been greasing, the shive wheel, could have seen such person. Jackson testified that he had operated this hoisting engine all told for something like nine months prior to the accident, and had worked at this mine for about five years; that he could look up the track from his place at the throttle of the engine and see the shive wheel, and a man oiling the same, and could see a man in charge of the car of slate, and could see any signal that might be given by such a man to run slow or fast or to start the car. He further testified that during the time that he had operated said engine he never gave the slate man at the end of the dump any signal that he was going to start the cars in motion, nor waited to receive a signal from said slate man; that there were no signals at all used when the engineer was loading the rock and “going to the top.” We believe the jury was justified in finding that the defendant was guilty of negligence in employing an engineer who had, according to his own testimony, habitually failed, during prior employments in the same capacity, to look before starting the engine to see whether or not his fellow employé at the end of the dump was in a place of danger, and that such failure on the part of said engineer to keep a lookout, or to give a signal of his intention to start the engine, was negligence. The engineer had been in the employment, according to his own testimony, in this position for a period of some nine months, and his manner of operating the engine was within the knowledge of the defendant company, or by the exercise of ordinary care said defendant company could have acquainted itself with said engineer’s habits as to negligence or the lack thereof. In Railway Co. v. Day, 104 Tex. 237, 136 S. W. 435, 34 L. R. A. (N. S.) 111, the Supreme Court, speaking through Judge Ramsey, in answer to certified questions from the Court of Appeals for the Fifth District, used the following language:

“We think it cannot be doubted, under the authorities, that there was evidence tending to show, and wMch, if credited, would have justified the conclusion, that appellant was negligent in employing and in retaining Milam in' its service, and that by such negligence appellee was subjected to the peril and danger of injury by him. It is stated by the Court of Civil-Appeals that ‘there was no evidence that appellant did or did not make an investigation of Milam’s character and fitness before employing him.’ Since this was a fact peculiarly within the knowledge of the railway company, its failure to produce such evidence when, if inquiry-had been made, the proof was not only readily accessible^ but of value to it, might well justify the jury m concluding that no such inquiry had-been made. It is well settled in this state that it is the duty of a railway company to use ordinary and reasonable care to inform itself of the character and efficiency of its servants. T. & P. Ry. Co. v. Johnson, 89 Tex. 519, 35 S. W. 1042; Labatt on Master and Servant, § 194. And, if not alone, certainly in connection with other proof, the failure to make such inquiry may well justify a finding of negligence.”

But it is argued by appellant that there is no allegation in plaintiff’s petition of negligence on the part of defendant in retaining the engineer in question in its employment,, but merely in employing him. If the latter allegation be held sufficient, since the date of employment can fairly be held to be date of the accident, we hold that the allegation of negligence arising from the retention of the engineer in the employment of the company becomes unnecessary, and that the rule laid down in the case last cited is applicable to this case, though the allegation of negligence as to this matter be only as to the employment. We are of the opinion that the evidence justifies the jury in finding in answer to issue No. 2 that the defendant did not exercise ordinary care at the time it employed Will Jackson as an engineer to determine whether or not he was a competent man for the place. Incompetency in a fellow servant denotes the absence of reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those required to associate with a person. Ingram Day Lbr. Co. v. Joh (Miss.) 64 South. 934.

We now come to the question as to whether or not there is evidence to support the finding of the jury that the engineer in charge of the engine was guilty of negligence in starting the engine at the time and under the circumstances that he did start the same. The testimony of the plaintiff is to the effect that on the morning of the accident, and shortly prior thereto, that he and the engineer were out at the end of the track and dump assisting in raising the track and “cribbing” it up, and the engineer brought the oil can up and left it with plaintiff and told him to grease the wheel; that when they got the track raised, the engineer went back towards the engine house and plaintiff told him: “The first cars you send up load them light so I can dump them in the track.” That in response to the instruction of the engineer he, plaintiff, started to grease the shive wheel and found the oil hole stopped up with dirt; that he took his knife or a splinter and started to remove the dirt from the oil hole so that he could oil the wheel, and in order to perform his work got astraddle of one of the iron rails, holding the wheel with his left hand and pouring the oil into the hole with his right; that while he was so engaged the engineer started the engine without any signal, and his hands were caught, and he was injured, as alleged in his petition; that he was not looking for the engine to start until he got away, and gave the engineer the signal to start it; that it was required by the company that he oil the wheel and that it could not possibly be oiled except when standing still; that a person could not pour oil into this hole while the wheel was in motion; that he was oiling the wheel in the way he always oiled it; that he had to shake the wheel in order to make it take oil and oftentimes open up this hole in order that the oil might run through. He further testified:

.“I suppose the engineer brought the can from his engine room. He came up the dump with it in his hands. "When he told me to oil the shive wheel, he and I were standing something like 15 or 20 feet, maybe 30 feet, from the shive wheel. He then had to go something like 275 or 280 feet to the engine room, and I had to take some blocks out from under the rails or between where the ropes were. I pitched these out and the engineer set the oil can. down and said, ‘When you pitch these out, oil the wheel.’ And I started to oil the wheel and had to open the hole to get the dirt out of it. When we stopped to fix the track we always gave a signal before they started up with the first ear, of course when the dump was in1 good shape they went backward and forward without any signals, but when we stopped for anything a little while, they never started a car until they were given a signal, and never in the morning, when we first begin work, started a car without a signal. The signal I was to give the engineer was before a car started.”

The evidence shows that the accident oc-cured at the beginning of that day’s work. The engineer testified that from where he stood he could see the plaintiff when he was on the dump ; that he did not know whether or not the plaintiff could see him as he was in a room, there being a window between him and the plaintiff; that on the occasion of the accident he did not see plaintiff when he started the engine and did not look for him. Enough of the evidence has been cited in our opinion to support the finding of the jury that the engineer was negligent in starting the engine at the time and under the circumstances he did.

We are of the opinion that appellant’s seventh assignment, which attacks the verdict of the jury in response to issue No. 4, wherein they found that the plaintiff was not guilty of contributory negligence, cannot be sustained. The plaintiff himself testified, as also did Homer Gower, that the foundation of the dump at the shive wheel was not solid and substantial, and that the débris was disposed to roll from under the feet, and there was a gradual incline of the grade adjacent thereto, making it inconvenient and probably impracticable to grease the wheel from the ground, and we are not able to say that a man in the exercise of ordinary care for his own safety would not have adopted the plan that plaintiff did adopt as to greasing the wheel, especially as the oil was to be applied through this oil hole or duct. Contributory negligence is a question of fact for the jury, unless the act done is in violation of the law, or the facts admit of but one inference. Adams v. Railway Co., 164 S. W. 853.

There are a number of assignments alleging error in the failure of the trial court to submit certain issues tendered by the defendant. But we are of the opinion that such questions were matters of evidence touching the issues of fact to be determined by the jury, rather than the issues themselves. For instance, in the tenth assignment, error is urged to the failure to submit the following question:

“Was there or not a safer method of oiling the wheel than the method used by the plaintiff?”

And under the eleventh assignment:

“If plaintiff had undertaken to oil the wheel by a safer method, if there was one, would he have submitted himself to the danger of the injury?”

We believe that, in view of the court’s definitions as to what constitutes negligence and contributory negligence, these several questions of fact were included in tlie issues submitted by the court.

Since we are of the opinion that the judgment of the trial court. should be sustained upon the ground that the defendant was guilty of negligence in the employment of an incompetent engineer, we are not called upon to decide the question of whether or not the defendant was operating a railroad, or the question whether or not if defendant was operating a railroad, plaintiff was injured while engaged in the operation of the cars. Therefore we will not undertake to determine these questions.

The judgment of the trial court is affirmed.
      <g^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes