author: TALIAFERRO, J.

text:
    SAN ANTONIO TRACTION CO. v. URBAN.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1913.
    On Motion for Rehearing, April 23, 1913.)
    1. Cabbiebs (§ 303*) — Injuries to Passen-gebs While Alighting — Liability.
    A carrier must stop its car at the usual stopping place for a reasonably sufficient time to enable passengers to alight, and, where it does so, it is not liable for injuries to a passenger while alighting unless it knew that the passenger was in a position of danger.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240; Dec. Dig. § 303.]
    2. Caebiebs (§ 303) — Injuries to Passen-gebs While Alighting — Liability.
    The duty of a carrier to stop its car a reasonably sufficient time to allow a passenger to safely alight is no more imperative than the duty of the passenger to alight with reasonable dispatch, and where a carrier stopped its car for a reasonablv sufficient time, but the passenger was not diligent in alighting, the carrier was not liable for damages, unless when the passenger was alighting the carrier knew of his position and then failed to use the high degree of care required to protect passengers from injury, and then only if the passenger was free from contfibutory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240; 1243; Dec. Dig. § 303.]
    On Motion for Rehearing.
    3. Teial (§ 256) — Instetjctions—Requests —Necessity.
    An instruction, which correctly states the law as applicable to one theory of the case and which requires a finding of the facts necessary to support that theory, is not affirmatively erroneous for failing to submit the whole case, in the absence of a requested instruction, unless a proper requested instruction covering the whole case or the phase omitted will conflict with the instruction given or will render the whole misleading.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Déc. Dig. § 256.]
    4. Appeal and Ebeob (§ 216) — Objections —Instructions—Requests—Necessity.
    Where, in an action for injuries to a passenger while alighting, the evidence raised the issue whether the passenger proceeded'to alight with reasonable dispatch, an instruction that if, while the passenger was about to alight from the car, the car men started the car before the passenger had reasonably- sufficient time to alight, and if by reason thereof the passenger was injured, and if the car men were guilty of negligence in starting the car directly causing the injuries, and if the passenger was not guilty of contributory negligence, the verdict must be for the passenger, was not affirmatively erroneous for in effect making a carrier responsible for starting the car as the passenger was about to alight, regardless whether the passenger acted with reasonable dispatch, and the carrier in the absence' of a requested instruction could not complain.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.]
    5. Appeal and Error (§ 10021 — Verdict — Conclusiveness.
    A verdict on conflicting evidence will not he disturbed as contrary to the preponderance of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3035-3937; Dec. Dig. § 1002.]
    Appeal from District Court, Besar County; C. V. Birlthead, Judge.
    Action by Theresa Urban against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed on rehearing.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. D. A. McAskill, H. C. Carter, and Perry J. Lewis, all of San Antonio, for appellee.

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

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

   TALIAFERRO, J.

This suit was brought by Theresa Urban, a feme sole, against the San Antonio Traction Company, a corporation, for damages for personal injuries to plaintiff. The petition alleged: That on or about the 18th day of February, 1911, plaintiff was a passenger on one of the defendant’s street ears running out East Commerce street, in the city of San Antonio, and when said car arrived at a point north of and opposite to the Southern Pacific passenger station, on said street, the ear stopped for the purpose of allowing passengers to alight, and that said place was a regular stopping place for cars to discharge and admit passengers. That while said ear was so stopped plaintiff undertook to disembark, and while she was on the rear platform preparing to alight from said car the defendant’s em-ployés, in control of said car, negligently put the same in motion, and did not allow 'plaintiff a reasonably sufficient time in which to disembark, but put said ear in motion while plaintiff was in the act of alighting therefrom, whereby she was thrown from the car with great violence and sustained the injuries complained of. The defendant answered by general demurrer, general denial, and a plea of contributory negligence. A trial of the case before a jury resulted in. a verdict and judgment for the plaintiff in the sum of $15,000. A motion for new trial was duly presented and overruled.

Appellant’s first assignment of error complains of the fourth paragraph of the general charge given by the court, which is as follows : “If you believe from the evidence that on or about the 18th day of February, 1911, the plaintiff was a passenger upon one of defendant’s street cars; and if you further believe from the evidence that said car stopped, as alleged in plaintiff’s petition, for the purpose of enabling passengers to alight; and if you further believe from the evidence that the plaintiff prepared to alight from said car as alleged in plaintiff’s petition; and if you further believe from the evidence that, while the plaintiff was about to alight from said car, defendant’s employé put said car in motion before the plaintiff had reasonably sufficient time to alight; and if you further believe from the evidence that, by reason of said defendant’s employé putting said car in motion, if it was put in motion, the plaintiff was thrown from the car and injured as alleged in plaintiff’s petition; and if you further believe from the evidence that the defendant’s employé was guilty of negligence in putting said car in motion when he did, if you find that said car was put in motion; and if you further believe from the evidence that such negligence, if any, directly caused injuries to plaintiff as alleged in her petition;, and if you further believe from the evidence that the plaintiff was not guilty of any contributory negligence — then I charge you that your verdict must be for the plaintiff.”

It was the legal duty of the appellant to stop this car at the usual stopping place for a reasonably sufficient time to enable passengers to alight therefrom, and, if this was done, the appellant’s liability would depend upon the doctrine of discovered peril, and not upon the breach of duty to stop the car for a reasonably sufficient length of time for the passengers to alight. If therefore the appellee was injured in attempting to alight, after the car had been stopped for a reasonably sufficient length of time for her to have alighted therefrom, the defendant would not be liable unless it knew that the appellee was in a position of danger and peril.

Appellee contends that the evidence makes it clear that it was the duty of the motorman in charge of the ear not to start the same until he knew all the passengers who desired to alight had done so, and that his view from the front platform was sufficiently clear for him to have assured himself of this fact before he started the car. It is a sufficient answer to such contention to say that no such ground of negligence was submitted to the jury, and it cannot be urged as excuse for erroneous submission of the only issue submitted. If appellee had desired the issue of discovered peril submitted, it could have asked a charge upon that theory, and such charge, if correctly drawn, would have given plaintiff the protection of the well-known rules of law relating to discovered peril. The charge in question, however, had the effect of making appellant responsible for starting the car as she was about to alight, regardless of whether liability attached therefor under the rules relating to discovered peril, and to this appellant objects.

The rule rquiring the ear to remain stationary a reasonably sufficient time to enable passengers to disembark was, in a general manner, correctly given to the jury in tbe second paragraph of the charge; but the complaint is directed to the fourth paragraph of the charge, in which this rule is attempted to be applied to the facts in this case. The time of stoppage, under the rule, is to be contemplated from the beginning of the stop to the end thereof; that is, the time the car remained stationary, and whether or not such time is “reasonably sufficient” is a question for the determination of the jury, and, there being an issue raised by the evidence in this case on that question, it should have been submitted to the jury by the court. The language in paragraph 4 upon this particular question, which is complained of in appellant’s propositions under various assignments, is as follows: “And if you further believe from the evidence that, while plaintiff was about to alight from said car, defendant’s employé put said car in motion before the plaintiff had reasonably sufficient time to alight.” We think this means the same as if the words “to do so,” .or “to complete the operation,” had been used instead of the words “to alight.” Under this instruction the jury would have been warranted in finding for the plaintiff, if they believed that, after she started to alight, she was not given a reasonably sufficient time to complete the operation, regardless of whether the length of the stop had been a reasonably sufficient time in which to alight and, in fact, without at all considering the length of time that the car remained stationary, or whether such time was, or was not, reasonably sufficient to enable passengers to alight. That is not the law. In the case of Railway v. Booth, 97 S. W. 128, this court held: “It is the duty of railway companies to stop their trains at stations for a time reasonably sufficient to allow passengers to get off or on the ears, and in case injuries should be inflicted by a failure to perform this duty the railway company would be liable for all damages arising therefrom. When the train had been stopped for such reasonable time as is necessary for the egress and ingress of passengers, it is not required to give notice of its departure, and it owes no further duty, except to use its utmost efforts to protect any person who might be discovered in a position of peril.” Railway v. Williams, 70 Tex. 159, 8 S. W. 78; Railway v. Mathes, 73 S. W. 411.

If the car was stopped for a reasonably sufficient time to enable passengers to alight, and the plaintiff, instead of using such “reasonably sufficient time” in getting off the car, was not diligent in making her exit therefrom, the appellant would not be liable to her for damages, unless, when'she was alighting, or about to alight, the appellant knew of her position of danger, and then failed to use the high degree of care required of carriers of passengers to protect them from injury (Railway v. Rose, 93 S. W. 1105); and then only if she was free from fault in contributing to the injury (El Paso Ry. Co. v. Boer, 108 S. W. 199; Railway Co. v. Booth, supra).

The charge refers the jury to the allegations of the petition as to how the car stopped, but when we turn to the petition we find the allegation to be that “plaintiff further avers that, while said car was stopped, she undertook to disembark, and,, while she was on the rear platform preparing to alight .from said car, the defendant’s employés in charge of the car negligently put the same in motion before plaintiff had a reasonably sufficient time to alight therefrom.” This allegation sheds no light upon the charge. What process of preparation was plaintiff conducting? Was her preparation mental or physical? 1-Iow long had it taken her? There was evidence that she hesitated on the back platform, and there is evidence that the car, upon the whole, was stopped for a time sufficient to have allowed all passengers, in the exercise of ordinary dispatch, to have alighted. The jury could have believed that they were instructed to find for plaintiff if the car was started before she had a reasonable time to. alight, after she made up her mind to alight. Does not this allegation in fact emphasize the error, because the preparation is alleged to have been made while she was on the rear platform, and the jury could not by referring to said allegation become informed that the words “prepared to alight from said car as alleged in plaintiff’s petition,” used in the charge, meant to inform them that the reasonably sufficient time to alight should be computed from the time the car stopped.

Paragraph 5 of the general charge of the court reads as follows: “If, on the other hand, you do not find from a preponderance of the evidence that the motorman was guilty of negligence in starting the car in the manner and under the circumstances you find he did, you will find for the defendant; or if you do not find from the preponderance of the evidence that the plaintiff was thrown from the car by reason of the same having been started, then in that event also you will return a verdict for the defendant.”

We do not think that this paragraph cures the vice in the charge; for, as above stated, paragraph 4 instructed the jury that it was negligence on the part of appellant if, while plaintiff was about to alight, the appellant’s employé put the car in motion before she had a reasonably sufficient time to complete the operation, and the testimony showing as it does without contradiction that the car was started as she was about to alight, we do not see how the jury could' have arrived at any finding thereunder unless they disregarded either the evidence or that part of the charge in paragraph 4 complained of by the appellant, or believed plaintiff to be guilty of contributory negligence.

Appellee contends that, even if the charge is subject to the criticism directed to it by appellant, the same was not affirmative error, because there is “no testimony whatever indicating that there was any delay or hesitation on the plaintiff’s part in leaving her seat in the ear; * * * the only evidence which at all squints at any delay or hesitation on the part of plaintiff was that while she was on the back platform * * * the plaintiff seemed to hesitate.” -

We are unable to follow this distinction in the matter of appellee’s delay; The time or place where she may have loitered in her course to dismount from the ear can have no bearing upon the question of appellant’s duty to stop the car only a reasonable time to allow her to dismount by the use of ordinary diligence. The duty of appellant to stop its car a reasonably sufficient time to allow appellee to safely alight was no greater or more imperative than was the duty of ap-pellee to alight with reasonable dispatch. There was evidence that appellee paused and hesitated for an appreciable time on the rear platform of the ear before making an attempt to alight. Harry Robbins testified: “She (plaintiff) was standing there to get off, hesitated there, standing in front of me.” And again: “My recollection is Miss Stabe-now had got to the sidewalk; I think I saw that myself. During that time Miss Urban certainly had a perfect chance to get off if she wanted to. She may have wanted to get off at the time Miss Stabenow got off, but she hesitated a while. In the meantime Miss Stabenow went over to the sidewalk.”

Raymond Barry, another witness offered by defendant, testified: “It seemed as though these two young ladies, Miss Stabenow and Miss Urban, walked out on the back platform and one of them got off- the ear; the other one seemed as though she was talking with the other one; I wasn’t listening to the conversation, I don’t know, she hesitated, the bell gave two rings from the front, and the car started, and the lady jumped off and fell on her side. She (plaintiff) was standing on the edge of the platform talking to the other lady when the car started. That girl (referring to Miss Stabenow, plaintiff’s companion) had gotten off and was standing there waiting for this one (referring to plaintiff) standing out toward the sidewalk in the street; she had not yet reached -the sidewalk. The young lady that got off first was not holding to the railing of the car when it started; she had entirely left the car and got about sis or eight feet in the street. I am positive of that.”

This evidence was sufficient to raise an issue of fact upon that point, and appellant was entitled to have this issue submitted to the jury. We are of the opinion that, taking the charge as a whole, it submitted to the jury the question of whether or not appellee, as she was about to alight from the platform, was given a reasonably sufficient time to complete the operation, and not whether the car was stopped and held stationary a reasonably sufficient time to give the passengers thereon an opportunity to alight safely. We consider this to be an affirmative error, going to the entire case, and we cannot say that, if charged correctly, the jury would have arrived at the same verdict.

This conclusion makes it unnecessary to pass upon the other assignments presented by appellant’s brief.

The judgment of the lower court is reversed, and the cause is remanded.

On Motion for Rehearing.

Appellee, in her motion for rehearing, urgently insists that, even if the paragraph of the court’s charge complained of bears the construction placed upon it by this court, yet it is not affirmative error, because it is not a misdirection of the jury, but is a mere omission by the court to charge in that connection upon the defensive theory of appellant. It is contended that the charge as given was not erroneous, “but a failure to give an instruction which the appellant had a right to demand,” and that a charge, which appellant contends would have been correct if given, would not have been in conflict with nor created a confusion in the meaning of the charge which was given. If this contention of appellee is correct, then the charge given by the court was not such affirmative error as to justify a reversal of this case, in the absence of a request for a special instruction upon that theory of the case which appellant contends should have been submitted to the jury. A clear line of decisions, from the ease of Chamblee v. Tarbox, 27 Tex. 140, 84 Am. Dec. 614, down to the very lucid and learned discussion of the doctrine by Mr. Justice Williams in Parks v. Traction Co., 100 Tex. 225, 94 S. W. 331, 98 S. W. 1100, has established the rule that a charge, which correctly states the law as applicable to one theory of a case requires a finding of the facts necessary to support such a theory, in the absence of a request for additional instructions, is not affirmative error merely for failure to submit the whole case to the jury, unless the giving of a proper requested charge covering the whole case, or.the phase omitted, would present a conflict with the charge given or render the whole unintelligible or misleading. As said by the court in the Parks Case: “The distinction, upon the mere statement of it, may appear to be a close one;' but it is really a substantial and important one, for upon it depends the further question as to the duty of parties to aid the trial courts in' the submission of their causes of action or grounds of defense by supplying mere omissions and deficiencies in instructions given.” Chamblee v. Tarbox, supra; S. & E. T. Ry. Co. v. Wood, 69 Tex. 679, 7 S. W. 372; T. & P. Ry. v. Brown, 78 Tex. 397, 14 S. W. 1034; G. C. & S. F. Ry. Co. v. Hill, 95 Tex. 629, 69 S. W. 136; S. A. & A. P. Ry. Co. v. Lester, 99 Tex. 214, 89 S. W. 752; Parks v. S. A. Traction Co., 100 Tex. 225, 94 S. W. 331, 98 S. W. 1100; Sauer v. Veltman, 149 S. W. 706.

After a careful reconsideration of tlie charge complained of in this case, we have concluded that we were in error in holding that it presented an affirmative error, and believe it comes within the rule above stated. There is no doubt that a special charge could have been so worded as to fully cover the phase of the case that was omitted in that paragraph of the general charge, and it was the duty of appellant to prepare such a charge and request its submission. Not having done so, it must be presumed to have been satisfied with the general charge.

It becomes necessary for us to dispose of appellant’s other assignments of error.

The second, third, and fourth assignments of error attack the verdict of the jury as contrary to the great preponderance of the evidence. Upon all the issues of fact raised by these assignments the evidence was in conflict, and therefore it is not the province of this court to disturb the findings of the jury, and they are overruled.

The fifth assignment of error attacks the verdict as excessive. We find no evidence in the record of passion or prejudice on the part of the jury, and cannot say the amount of damages allowed to the plaintiff was excessive. This also disposes of the sixth and seventh assignments of error.

Our original opinion is amended by striking out that part of it relating to the enforcement of the rules, and the motion for rehearing is granted, and the judgment affirmed.


source: Caselaw Access Project

author: MeKBNZIE, j. HIGGINS, J.

license: Public Domain

text:
    PRODUCERS’ OIL CO. v. BUSH et al.
    (Court of Civil Appeals of Texas. El Paso.
    March 20, 1913.
    Rehearing Denied April 24, 1913.)
    1. Master and Servant (§ 199) — Fellow Servants — -Who Are.'
    Employés engaged in drilling oil wells, each doing a specific part of the work, and neither having the power to employ and discharge, are fellow servants.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 491; Dec. Dig. § 199.]
    2. Master and Servant (§ 107) — Obligation of Master — Safe Place to Work.
    The rule that one of the nondelegable duties of an employer is to provide a reasonably safe place in which to work is subject to the exception that the employer need not keep the working place safe, when the work which the employé is employed to perform changes the condition of the place, and makes it more or less dangerous as the work advances.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.]
    3. Master and Servant (§ 118) — Obligation of Master — Safe Place to Work.
    Employés engaged in drilling oil wells were supplied with ■ the necessary appliances, including a jet, to protect them against escaping gas. The employés were experienced and knew the danger of escaping gas, and of the necessity to use the jet for their safety. They decided while acting together that they would not make use of any jet. While the work progressed gas escaped, causing the death of one of them. Held, that the employer was not guilty of any breach of duty to furnish a reasonably safe place in which to work.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. § 118.]
    4. Master and Servant (§ 217*) — Injury to Servant — Assumption of Risk.
    An experienced employé in drilling oil wells who knows of the danger of escaping gas without using a jet, and who continues in the employment without using jet furnished by the employer, assumes the risk of injury by escaping gas.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 574^600; Dec. Dig. § 217.]
    5. Master and Servant (§ 185) — Injury to Servant — Liability of Master.
    Where employés engaged in drilling oil wells were supplied with necessary tools, including a jet to protect them from escaping gas, and it was the duty of one of the em-ployés to make use of the jet whenever necessary, the failure to make use of the jet at the proper time to avoid danger from escaping gas, causing the death of a coemployé, was a breach of the duty of the employé, for which the employer was not liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.]
    Error to District Court, Harris County; J. A. Read, Special Judge.
    Action by Lenora Bush and another against the Producers’ Oil Company. From a judgment for plaintiffs, defendant brings error.
    Reversed, and rendered for defendant.
    Jas; L. Autry, Robt. A. John, and Hutche-son & Hutcheson, all of Houston, for plaintiff in error. John Love joy and J. W. Parker, both of Houston, for defendants in error.

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

   MeKBNZIE, j.

Plaintiffs, Lenora Bush and Julia Rossie Bush, minor, brought this suit against the Producers’ Oil Company and the Texas Company to recover damages for the death of the husband and father, respectively, of plaintiffs. The amended petition upon which the trial was had charges, in substance, that the appellant was a private corporation of the state of Texas, engaged in the business of prospecting for and developing petroleum oil in Humble, Tex.; that while said Bush was in the discharge of his duty as helper, working for the defendant, he was poisoned by inhaling gases, and as a consequence thereof died; that Hessig, with whom plaintiffs’ decedent was working at the time of his death, was foreman of the work, and had been given the authority to employ and discharge "helpers, which constituted him a vice principal of the defendant in the work of drilling wells; that defendant knew, or should have known, that poisonous gases would escape from the well being drilled, and that such gases were dangerous, and that that portion of the Humble oil field in which the well was being drilled contained an extraordinary amount of gases which were unusually poisonous and dangerous ; that persons and corporations engaged in the business of boring wells for petroleum oil of the said field an'd in the other fields of the said state and elsewhere, and especially in the locality where the said well was being drilled, for the purpose of safeguarding the lives of their employés, use and have customarily connected with the wells pipe or pipes to convey the gases escaping from the wells far enough away so that they would not come in contact with the men or would mix steam therewith so as to render the same innocuous, and that, when a well was known to be producing gas in sufficient quantities to endanger a human life, the foreman of the men engaged in the work of drilling would give notice to the men of such a fact, to the end that they might protect themselves against injury therefrom, and the duty to pipe away the gas or to otherwise get rid of same, and to give warning, as aforesaid, was one which rested on the owner or proprietor, and, in this case, was a duty of the defendant and its said vice principal; that it knew that the well was not provided with such means, and knew or ought to have known that dangerous gases would escape, and that Bush was inexperienced in the work of drilling, and was ignorant of danger incident thereto, and was especially ignorant of the increased danger on account of unusual gases in that part of the field; that the .death of Bush was caused proximately by the carelessness and negligence of defendant and of its vice principal, Hessig, in that having knowledge of the danger it did not provide against or give Bush timely warning. The appellant answered by general demurrer, general denial, and specially pleaded the defenses of contributory negligence and assumed risk, and negligence of fellow servant, the risk of which was assumed by the decedent. During the progress of the trial, the Texas Company, having been made a party defendant, was dismissed from the suit by plaintiff. Upon trial the jury found verdict for appellees in the sum of $12,500, and judgment was accordingly entered against appellant for that amount, from which judgment the appeal is taken.

Because of the disposition to be made of this appeal, we quote at length the material testimony of the witnesses bearing upon the, issues upon which we predicate our opinion.

George Hessig, the only eyewitness of the accident, testified for the plaintiff in substance as follows: “Am 45 years old, and reside at Humble, Tex. Am an oil well driller and have followed that occupation for 25 years, and have worked in the oil fields in every state in the Union where there are or have been oil fields of importance, following that occupation. Have been in the em-. ploy of the Producers’ Oil Company about 14 months. Have worked in drilling wells both as helper and driller or foreman. Altogether I have worked about five years as helper and the other time as driller. In my operation in oil fields I have had experience with gas in drilling wells, as a man would ordinarily have that has been in the business as long as I have. I have had much experience with gas, and am familiar with the indications which show the presence of gas in a well being drilled, and I am familiar with the effects of gas upon persons working at. or around wells from which gas escapes. * * * The manner in which gas is indicated in wells is this: The gas rises to the surface out of the wells, and you can see the gas and smell it. If the volume is pretty large, you can see the gas for several hundred feet and can smell it that far; it all dépends on the volume of the gas. If any gas is escaping from a well that would be at all dangerous to those working around it, it can be seen with the eye in the daytime and smelled. I have also heard in a number of wells the gas escaping. There is no other way that I know of by which gas can be indicated in a well, except by seeing, smelling, or hearing it. If gas is in a well in a dangerous quantity to those working at or around the well, it can be smelled. A very small amount of gas in a well can be detected by the smell. Gas makes its escape from wells in this manner: It rises to the surface, sometimes through the pipes and sometimes around the pipes. In Texas fields, especially at Humble, when casing is used, it nearly always comes out through the pipes or casing, unless it is a very strong volume when it may come out around the pipe, or even below the pipe out. As a general rule gas appears in a well suddenly, and frequently. increases in volume after making its appearance. The moment you strike gas it begins to rise to the surface, and the more the volume of gas the quicker it comes out. The effect upon persons coming in contact with gas escaping from wells depends upon the volume of the escaping gas, the suddenness it comes out and the kind of escaping gas. Some kinds of gas in large volumes you can work around all right, and other gas, or gas in other wells will put you out. I mean that a man breathing it would become unconscious almost instantly. Different wells in the same fields very often give forth a different kind of gas, some very dangerous and some not. From my experience in drilling wells in which gas has appeared, and from my operations in same, the appliance generally used for the purpose of avoiding danger to those employed in and about the well for the escape of gas is what is known as a jet. A jet is a piece of pipe connecting to the top of a casing in a well, extending out to the side of the well to a distance. The distance it extends will depend upon the volume and dangerousness of the gas. This jet is .connected to a .steam line, and the steam draws the gas out through the jet. * .* * Where I have used it and seen it used,, it has proven satisfactory, and will take the gas away from the well. I am familiar with the use of such appliances and the necessity for their, use and the indications of the necessity of their use as a precaution to avoid danger. The Producers’ Oil Company during the time I worked for them had available for use such appliances * * * for the prevention of the escape of gas in a dangerous way. I was acquainted with this fact. Such appliances could have been gotten by me and used by me whenever I desired by getting them from the warehouse at Humble' of the Producers’ Oil Company. I did know Tom Bush. * * * I first met him about two days before his death, when he came to help me at night on a well at Humble. X only knew him about two days before his death. He had been my helper in the work of drilling wells only one or two nights prior to the night he was killed. I was foreman of the drilling crew, and he was my helper. Tom Bush and I alone constituted the drilling crew on well No. 109, which was being drilled with cable tools on the night of January 3, 1909, for the Producers’ Oil Company. We commenced to work about 7 o’clock at night. At the time we began to work that night we began to side track the bit which had been-broken off in the bottom of the hole a day or two before that. I mean by side tracking the bit putting on another bit to the cable tools and drilling on by the bit which was broken off. The hole was making some gas. I am now referring to well 109. * * * I did not consider that the gas was of such character and amount as to be dangerous to work around. On account of the bit being broken off in the well, our drilling was very slow; that is, we couldn’t make much prog-gress. The well was down about 1120 some .odd feet at that time, to the best of my remembrance. It had been making a little gas the night before when we quit work, and the gas had increased during the following day-a little, while the other crew was working. * * * There was nothing unusual about our work in drilling, and we were just doing the ordinary routine of work in drilling an oil well. I was working all the time close to the hole handling the temper screw which controls and regulates the drilling or cable tools. Tom Bush was looking after the machinery and. the rig, which was his duty. We were drilling along on the well that way, making pretty poor progress all the time, until he was killed. Of course, we stopped for the noon hour at night. That night was' the second or third night we had worked on the well together. ' Tom Bush was killed at 2:30 o’clock that night. What caused us to stop work on the well was that we were overcome by gas. Tom Bush had •started to tie the slack back to the bull wheel brace, and I don’t think he had accomplished that when he stepped up to me and started to say something. The bull wheel brace was about 10 feet frgm me. Then a very strong and unusual puff of gas came out of the well, and Tom Bush turned, and ran about 30 feet from the derrick, and then turned around and ran back to the sand wheel. The sand wheel is located about 30 feet from the hole, between the hole and the engine. * * * He fell there and I went to pick him up, and picked him up and shook him, and he struggled with me, and I couldn’t do anything with him, and I was overcome there by the side of him. * * * I do not remember any conversation that occurred between Tom Bush and myself before we went to work on -the well that night; the gas being pretty strong and poisonous, I asked him if he had ever handled anybody that was ever knocked out with gas, and he said, ‘No.’ I then went on to explain to him what he should do for me in case I should be overcome by gas, because, I told him, being the closest to the well myself, I thought I was the one to be in danger, if any danger should happen, though I didn’t think the well was dangerous at all. He said he would do what I told him. We talked about other things; of course, but that is all I remember that we said about the well. We discussed the escape of gas from the well, and I remarked that, if it got any worse, there would have to be a jet on there next day, but we both agreed that it wasn’t necessary at this time. * * * These conversations which I have attempted ■ to give in answer to the last question occurred between 7 o’clock and midnight of the night he was killed. I could not come nearer to the time than that. I spoke to Tom Bush about the gas, and we talked about the gas because the gas was-unpleasant, and because I had had an unfortunate experience with gas a short time before that. We did not talk much, because Ms duties generally did not require him to be close to me, and I had to be on the derrick floor all the time where the gas was strongest. Prior to the blowout there had been no perceptible increase in the volume of gas or the odor since we had gone to work that night. * * * We could smell the gas pretty strongly, but my experience did not lead me to think it was dangerous at all. The atmosphere was very heavy that night; it was a dark, stormy, night, and that kind of an atmosphere holds the gas pretty close to the ground. It was not an unusual flow of gas for that field, but it smelled very poisonous, but I didn’t consider it dangerous, and nothing but a blowout made it so. The presence of gas did not excite in me any apprehension of danger, because I was satisfied that, while it didn’t get any worse, we were perfectly safe. I have already stated all tlie directions I gave Tom Busli * * * because be was in a position to be away from the well, and only bad occasion to be there at certain intervals when I wanted to pull the tools out or something like that. I told him to pick me up and shake me if the gas should get hold of me. I also told him that if the gas got any stronger, we would •have to have a jet on the well. * * * The work was done just as any ordinary well .drilling work was done; there was nothing unusual in it. Tom Bush had his duties and I had mine. I did the drilling, that is, ran the tools in th'e hole to do the drilling, and hitched onto the screw by clamping the rope or cable, and had charge of the throttle and reverse lever which put all the machinery in my control. My duties kept me on the derrick floor close to the well, with the throttle ■in my hand practically all the time. * * * Bush’s duties, as his part of the work, were to guide the tools into the hole when I started them into the well. To do this he had to be on the derrick floor part of the time and catch the tools with his hand and guide them into the well. * * * He also had to .look after the oiling of the engine, keep the slack tied back, that is, keep the rope tied back to the bull wheel brace, throw on the bull rope, and help unhitch and take down the beam, and run the engine while pulling the tools out of the hole. While I was drillr ing he had nothing to do but oil the engine; most of the time, he didn’t have anything to do; he was there to help me when I wanted something done. Prior to the blow- . out, the gas escaped from the well in a regular flow, and did not come out in puffs; it was just a regular leak; * * * it did have a perceptible odor; it had a blinding • effect upon the eyes if you got in the current of the gas. * * . * He (Bush) was only engaged on the derrick floor in keeping the slack tied back, and throwing on the bull rope and helping unhitch and take down the beam, when I was pulling the tools out of the hole, and this had occurred only • twice that night and required his presence on the derrick floor about 20 minutes each time, and he had been on the derrick floor that night not more than an hour all together. The accident occurred after we had run the tools in the hole the third time. .Outside of the hour he had been on the derrick floor, he had been, the rest of the time, off at the engine or in call of me. Bush, when the blowout occurred, was standing almost north of the hole, and the wind was blowing right toward him, from the well, he was to the windward of the well; he was ■ not more than two feet from the well at the time of the blowout. * * * At the time of the blowout, Bush was attempting to tie the slack rope to the bull wheel brace — that is, he had started to do that and had the rope in his hand — and had just started also ■to say something to me when the blowout occurred. I had just called him in to attend to tying the slack rope. * * * The blowout was just a- sudden puff of gas; it did not make any noise, and did not move the tools at all or shake the derrick. I could see that the volume of gas had all at once increased very unusually by the lights that we had around us, and the smell was suffocating all at once. I don’t think I had to tell him, Bush, or told him how to do his work at all, as he had had .experience, and knew generally what he was expected to do, unless there was something special which T wanted done. He had had experience before he worked with me, and knew what was to be done by him. I knew. that he was experienced by the way he went ahead and did his work. The escape of the gas, prior to the blowout, was perceptible and known to both me and Bush, and I did speak to Bush about the matter as I have stated. Bush seemed to be familiar with his work, and to know the duties of it, and to know how1 to perform- them.”

A. J. Smith, an experienced driller in the Humble field, was the day driller on well 109, testifying on behalf of the plaintiff as follows: “My drilling operations have been confined out there to property in the Humble oil field during the five years I have been with the Producer’s Oil Company, and I have drilled a good many wells. In a general way the extent of the holdings of the Producers’ Oil Company in the Humble oil field are large; they have a good many, acres of land under lease up there which they are operating on for oil. * * * Each well of the Producers’ Oil Company in the Humble field is numbered. The number of the latest well — that is, the one I am working on now— is 89 on the Hermann lease. The number of the well on which Tom Bush lost his life was 109. The wells on each lease are numbered separately. I cannot answer anywheres the' number of oil wells that have been put down by the Producers’ Oil Company at Humble. I have no idea, but there have been a great many. * * * I did work the day "before the death of Tom Bush; we ceased work about 5 o’clock that evening, and Mr. Hessig came on after we quit work. Tom Bush, his helper, came after I left. I saw Mr. Hessig that evening a little west from the well No. 109. I had left the well to get away from the gas, and Hessig, when I met him, was going to the well to begin his work. I spoke to Mr. Hessig, and told him I didn’t believe' they could work on that well that night because the gas appeared to be so bad; that I had shut down because it was making my eyes sore. He wanted to know what he should do and I told him I had nothing to say, it was up to him, that he had charge when I' left. I thought that, before work was resumed on the well, he (Hessig) would have to put on a jet to take the gas away. It was the duty of either Mr. Hessig or-my-' self to determine -when a jet should go on a well that was making gas; the foreman did that. Those jets were kept right at the warehouse; lots of times there would be material enough around the rig to make one and put it on. I stated I quit that evening at 5 o’clock; that was a little early, but X quit because the gas was hurting my eyes. The reason X didn’t put a jet on was because the gas didn’t commence to get bad until late in the evening; that is, enough so as to make it dangerous to work by. There was no jet right at that well; I went to the warehouse the next morning and got the material, made a jet and put it on the well. I had not during that day made any request of any one for that jet, at no time during the' day did I do that, but I got one next morning and put it on the well. After putting on that jet, I again went to work on the well, and we finished the work on that well. I will describe to you a jet: We would put a tee on the top of the casing, and then we would screw another joint of pipe in beside of the tee, bring it outside of the derrick, put another tee on, and put an upright pipe to it, and bring the jet up from the inside, from the bottom, connect up, and then we would blow it with steam. * * * The object in removing the gas in the manner I have indicated was to make it safe for men to work on the well. The oil stratum in the Humble field was reached at various depths; the shallowest well that I worked on was 1,148 and the deepest was 1,185 feet; 1,148 was the shallowest one that I have ever drilled in, but then I have drilled in wells where the oil bearing strata was deeper than 1,200 feet; that was considered to be the same stratum as I am speaking of; but it varied just that much, as I have stated to you. Ordinarily the oil bearing strata was reached between the two depths I have mentioned; that is, between 1,148 feet and 1,-185 feet. I cannot 'tell you what the depth was of the well No. 109 at the time of the accident to Bush, but it was something over 1,100 feet. We had not at the time reached the oil rock. In drilling out there we used cable tools; the cable tools were used for drilling the wells in, but we used the rotary for drilling wells. This well No. 109 was drilled with a rotary process to along about 1,100 feet. * * * At the time of the death of Bush, we were using cable tools. We had been using the rotary process up to the time they set the casing; I had nothing to do with that part of it; they set the casing and I drilled them in from the casing down. * * * We would find the gas at different depths when putting down a well with cable tools. * * * It doesn’t necessarily follow that the gas is at the same place in the ground, not all the time it isn’t. * *. * Sometimes the gas in the Humble field comes in puffs, sometimes it comes gradually, steady right along. * * * There was gas showing up in the Humble -field just about the time when Bush was gassed; prior to that time there had been considerable gas, and each year, starting from the beginning of the field, the gas apparently got less. * * * It was a common topic of conversation among the men out there that it was dangerous to be about a well that was gassing, and it is a fact that it was generally understood that, if a person was working about a gassing well, they took a chance of being gassed. It is also a fact that the nature of the gas was such by the smell of it and the action of it, that anybody with average common sense is bound to know the gas was dangerous. * * * A person can work in that gas, and it will not affect his breathing, but it will make his eyes sore; he can’t work in the gas without knowing it is there because his eyes will smart; the eyes will always tell him the gas is there if he is in it any length of time. The gas in the Humble field has an odor; you can detect it by the smell. * * * At the time I left the well the gas had showed itself to the extent that it was smarting my eyes, and I told Hessig that I didn’t think he could work on the well. * * * I have seen gas come out of a well in a. sudden great volume, with a sudden puff; when gas comes out that way a gas jet will not always stop it, if the volume of gas is too great a gas jet would not stop it. * * * A certain amount, if the puff is too strong, is bound to go by the jet. * * * It is a fact that if a gas jet is put on the well that the driller is the man who determines when it shall be put on. It is also a fact that the driller, in connection with his helper, fixes up the jet and attaches it to the well. It is likewise a fact that the Producers’ Oil Company furnishes for our use, whenever we want them and instructions to use them whenever they are necessary, such tools and appliances as may be necessary to make this jet, and we can get them whenever we need them. I have drilled in wells without putting a jet on them. It is a further fact that the jets are used, not only to- prevent danger to human life, but for the purpose of preventing the gas from smarting the eyes of the workers, to that extent, and very often wells are drilled entirely in even when there is gas showing and no jet is put on. There is no uniform rule in the field, or custom, that just as soon as gas shows up in a well they shall put a jet on; there is no necessity for that. There is no necessity for a gas jet unless the well shows gas in a very considerable volume, and there is no way a man can tell, unless he is working on the well, in advance when he is going to use a jet, or whether he is going to need it at all. It is a matter up to the driller and his crew on that well, on each particular well, from the conditions which appear from time to time on the well, to determine the question of the necessity of the jet, to put it on himself, if he finds it necessary. * * * When yon start a well in the Humble field at the surface of the ground, there is no sort of odor from gas; there is no danger from gas. * * * When a man sets up his rig and commences his work, starts his drill down, there is no question of gas, there is no sort of danger from the gas, not at the start, and whatever danger there is of gas arises during the progress of the work. I don’t believe the presence of gas makes itself known in all wells at the same depth and under the same conditions; it does not where you are drilling in -with cable tools. We find it at different depths. As to whether or not gas appears in wells in the same quantities and in the same way in all wells, it don’t appear in the same quantities, it comes gradually in some and suddenly in some; it comes in all kinds of ways in different wells, * * * and I can’t tell when I set my derrick up and start to drill; there is no way to tell when you are going to find the gas or how it is going to show up or anything until yon get down to it and it comes. * * * X had seen gas in other wells there to the extent that the gas was in well 109 when I quit work. As to whether I have ever seen it in any other part of the field than this place or whether it shows up practically the same in different parts of the field, will state that it was practically the same, some places there was more than others. * * * It appeared to be spotted. * * * Out of one well you might get a little bit of gas, and the well alongside of it you might get but a very little, and then sometimes none, that is what I mean by spotted, that I never could tell whether you were going to get gassed or not, that- is it. It was the understanding that every man that worked in connection with drilling in a well in the Humble oil field was bound to know that he was running a chance of being gassed when the well came in. I drilled other wells in this locality besides 109. I don’t remember whether gas showed up in them; if there was, there wasn’t enough to cause any trouble in any way; this was the only well in that locality that had shown up practically full of gas. I had drilled other wells close to this one. * * * I should judge that it couldn’t have been over 50 or 60 feet. I don’t remember whether I got much gas in that well, there wasn’t enough I know to cause any trouble. * * * We didn’t put any jet on the well. Now in other portions of the field * ,s * that same kind of thing happened, that I would drill a well at one place and get no gas, and right next to it drill a well and get gas. This-part of the field was no different in regard to gas than in other portions of the Humble field that I could notice that I had to drill, in.”

W. H. Lyne, a witness for the defendant, and an experienced man in the Humble field, and vice president of the defendant company, testified that the Producers’ Oil Company had every up-to-date appliance known to the business of drilling oil wells, and keep such appliances in stock at the warehouse, and that such appliances are furnished to the men as they need them. In the Humble field two or three different stratas of gas are struck, When the well is first started there is no gas. As the drill goes down, the first strata in some parts of the field is at 300 feet, and the largest flow of gas is generally struck at about 800 feet. “We cannot drill wells there in that field and not get gas; we get some gas in every well that is drilled. You can’t anticipate as to how much gas there is; we don’t know where we are going to strike it, and, as to knowing what depth, there is one gas strata that is pretty well defined throughout the field at about 800 feet; beyond that we don’t get any gas until after we set the casing, then we start drilling in the well, then we get the sulphuride gas. When the gas appears in the well, * * * and it does more or less, the necessity of using a gas jet to protect the workers against that gas does not arise; that is, not inevitable at the time of the injury * * * to Bush. * * * I don’t think we had used a jet except on four wells, drilling in of four wells. * * * I think four jets only on four wells would cover it”

Other testimony shows conclusively that Bush and Hessig were engaged in the drilling of the well and were fellow servants, in that Hessig was not intrusted with the power to employ and discharge, and that Bush had worked in the Humble field "for about five years, and had been in the employ of the Producers’ Oil Company for some time and was experienced in the work for which he was engaged and knew the conditions as to the gases escaping from wells being drilled and the dangers which result therefrom. The testimony is that Bush was himself at one time overcome by gas, and had worked around wells when others were overcome by gas;

There is no dispute, then, that at the beginning of the work of drilling the well the place of work was safe, free from all gases and the danger therefrom. The necessary tools and appliances for drilling the well and for keeping the place of work safe in drilling the well were furnished and were of the proper land. That in doing the work of drilling the well Hessig and Bush were fellow servants, and that each was experienced and competent to perform the duties of their respective positions.1 That at the time of accident each was engaged in doing the ordinary work pertaining to the duties of their employment.

It is shown by the evidence that in drilling a well in the Humble field different stratas of gas are encountered, the respective stratas varying somewhat as to depth, but the quantity of gas encountered in a well being quite variable; that is to say, in some of the wells drilled, ’the gas encountered would be inappreciable in quantity, while in others in practically the same part of the field the quantity of gas would be much greater. This condition as to the quantity of gas to be found in a well was practically the same throughout the Humble field. In a few of the wells drilled in the Humble field the gas encountered was poisonous and dangerous to work around, while in the great majority of the wells drilled the gas encountered was not considered dangerous to work around. Where gas was encountered oí a quantity and of the poisonous kind which made it dangerous to work around, a jet was the proper appliance to be used to avoid the danger. Of the great number of wells drilled in the Humble field by appellant company, it became necessary to use a jet only on four during the progress of drilling. It was the duty of the driller to determine when the use of a jet became necessary; and, when once determined, it was then the duty of the helper to assist the driller in placing it upon the well. The custom in drilling wells in the Humble field was that the jet was not to be placed on the well until the condition as to the escaping gas made it dangerous to work around. Bush knew of this custom and the condition of the escaping gas from the' well, and knew its dangers immediately before the fatal accident. He and the driller had discussed the condition existing and both agreed that the jet was unnecessary at that time. At the time of the accident Bush was at the well tieing the slack of the drilling rope to the bull wheel, but before accomplishing that duty he approached to within two feet of the well and to the windward side thereof engaging the driller in conversation, when a puff of poisonous gas came from, the well, which caused his death. The scope of Bush’s employment required him to tie the slack rope to the bull wheel, and the puff of gas which caused his death was encountered and brought about during the progress of drilling.

A familiar rule of law is' that one of the nonassignable duties of the master is to provide his servants a reasonably safe place in which to work. Like other general rules, this one has its exceptions, and one exception is that the master is not under duty to keep the working place safe when the very work which the servant is employed to perform changes the condition of the place and makes it more or less -dangerous as the work advances.

It is shown by the evidence that in the beginning of the work the working place was safe, and became unsafe only as the drilling progressed. The work was such that it might be said that at each stroke of the drill the safe place of work was likely to change. All necessary tools and appliances for drilling the well and for keeping the working place safe were furnished by the appellant and were of the proper kind. Hessig, who was Bush’s co-worker in the drilling of the well, is shown to have been an experienced and competent employé. The condition as to the escaping gas and of its dangerous character was known to both. Ordinary care, under the conditions as shown by the evidence, would require that the jet should have been placed upon the well for their own safety, hut,' after discussing this very condition, Bush and Hessig acting together in that matter, it was decided by both that they would not make use of the jet at that time. Bush was participating in the work at the time of the fatal accident, and his duties necessarily called him in immediate proximity to the well on frequent occasions. The situation, then, in which Bush placed himself, and of which the very nature of the work that he and Hessig were engaged in, constitutes an exception to the general rule that the master must furnish the servant a safe place in which to work. The danger encountered was brought about by the very work which they were doing, and it being shown by the evidence that the appellant had done all which the law required of it, and not being guilty of any breach of duty for which it is even prima facie liable, we are of opinion that appellee should not recover. 2 Labatt on Master and Servant, § 588; Smith’s Adm’r v. North Jellico Coal Co., 331 Ky. 196, 114 S. W. 785, 28 L. R. A. (N. S.) 1266, and subject note; Miller v. Berkeley Lime & Stone Co., 70 W. Va. 643, 75 S. E. 70.

Independent of the fact that the evidence shows that appellant had done all which the law required- of it, and had not been guilty of a breach of duty toward its servants in drilling the well, we are of opinion that the evidence further shows that Bush came to his death by a danger and risk which he assumed. It conclusively appears from the evidence that Bush was an experienced man, had worked in the Humble oil field for several years, knew the danger from gas escaping from the well under the circumstances, and knew that a jet was a proper appliance, which, if placed on the casing of the well, would have kept the place of work safe. He and Hessig had discussed the condition of the well as to the escaping gas, and as to whether or not they should use the jet upon it. This discussion took place just prior to the accident, when the gas that was escaping was smarting the eyes, and had a poisonous odor. It thus conclusively appears that Bush knew that there was more or less danger in working at the well without the jet when the gas was escaping therefrom, in the volume and of the noxious character as was shown in this instance. Knowing all these facts, by continuing in the employment and remaining at work around the well, Bush thereby assumed the risk or danger brought about by the absence of the jet, and the question as to negligence on the part of appellant in not having placed the jet npon the well would not affect the question.

In 1 Labatt on Master and Servant, p. 639, the general rule is thus stated:. “A servant who, either before or after he commences the performance of the contract of employment, has'ascertained, or ought in the exercise of proper care to have ascertained, that the ordinary hazards of his environment have been .augmented by abnormal conditions produced by the negligence of the master or of his master’s representative, and has accepted or continued in the employment without making any objection and without receiving any promise that'the abnormal conditions wiíl be remedied,’ is deemed as a matter of law to have assumed the risk thus superadded, and to have waived any right which he might otherwise have had to claim an indemnity for injuries resulting from the existence of that risk.” Prom the evidence it would appear that Bush was informed and understood the conditions, as well as the obvious danger, and assumed the risk, and appellees should not be allowed to recover.

We are of opinion that the duty of determining when a jet should be used upon a well was a mere detail of the work. This is necessarily true when we consider the character of work which was being doné. It is shown by the evidence that the invariable custom when drilling wells in the Humble field was to leave the jet off of the well until, in the progress of the work, gas should be encountered in such quantity and of such poisonous character as to make the place around the well dangerous. Of the large number of wells drilled by appellant in the Humble field, it was necessary to use the jet only in a few instances. The evidence is to the effect that appellant furnished the jet, which was a proper appliance, and had it been used upon the well at the proper time the accident which occurred would necessarily have been avoided. It is also shown by the evidence that the character of the work was of such a nature, and the use of the jet was so dependent upon the character of work, that the servant in doing that work was required as a matter of duty and as servant to use the jet when it became necessary, and in making use of the jet the servant was not the alter ego of the master. So it may be said that the failure to make use of the jet at the proper time to avoid the danger which was apparent was a dereliction of duty on thé part of Hessig, who was the fellow servant of Bush, for which appellees could not recover. As said in 2 Labatt on Master and Servant, § 604: “Another kind of dereliction of duty which is regarded as characteristic of a servant and not of the master is that which consists in the failure of a fellow servant to make use of a suitable appliance furnished by the master for the work in hand.” On account of the infrequency of the appearánce of gas in such quantity and of such dangerous character, and because of the very nature of the work, it certainly could not be said that the master should stand by for the purpose of determining when the use of the jet was necessary in order to avoid the danger which would likely be encountered by the very work which was being done by the servants themselves.

The questions which we have discussed are'prop'erly raised by appellant’s brief, and for the reasons as herein indicated we are of the opinion that this cause should be reversed and the judgment here rendered for appellant.

Reversed and rendered.

HIGGINS, J.

(concurring). Under the evidence in this case, the jury was authorized in finding that the defendant, in the exercise of ordinary care, should have foreseen the probable escape of gas from the well in such volume and of such poisonous nature as might be dangerous to the life of its em-ployés engaged in drilling the same; that there was an appliance known as a jet, which if attached to the well, would have conducted poisonous gases therefrom and rendered the same a safe place to work; and that without this jet being upon the well it.was not safe. 1 am therefore of the opinion the evidence supports the jury’s finding that appellant was guilty of negligence in failing to have the well equipped with such jet. The duty of making the place safe was nondelegable, and the failure of Hessig to place the jet upon the well was the negligence of the master, since in the performance of nondelegable duties a fellow servant is in that respect regarded as the representative of the master.

The rule referred to in the majority opinion, is believed to be inapplicable which relieves the master from the duty of exercising ordinary care to provide a reasonably safe place to work in cases in which the very work in which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards to increase or diminution of safety, and that the hazards thus arising as the work progresses are regarded as ordinary risks incident to the employment, and are assumed by the servant. The authorities which recognize this rule chiefly refer to construction, mining, and excavation work, and the rationale of the rule is that, under such circumstances and in the very nature of things, the master in advance cannot provide for the safety of his servants, and that provision for such safety cannot' be made except as the work progresses and when the danger arises. The text-writers and authorities treat this as an exception to the general rule which imposes upon the master the duty of providing a safe place to work, but as a matter of fact, when analyzed, it is not an •exception, but recovery is denied on tbe broad ground that there is no breach of •duty on the master’s part. Necessarily there •can be no negligence and breach of duty on the part of the master if provision for the safety of his workmen cannot be made in .advance, or if a condition or situation is ■created as the work progresses, whereby a •danger arises which can only be safeguarded .against by the workmen then and there employed in the work.

In the instant case, however, it appears •gas had been uniformly encountered at various depths in drilling wells in the Humble field, and • the master therefore knew that •at some time during the progress of the work .ga's would be encountered which might be in ■such volume and of such noxious character .as to render same dangerous .to those engaged in drilling the well. The jet which would have carried the noxious gases away was an appliance which would have rendered the place safe to work, and it could have been placed upon the well when drilling first began, or at any time prior to the appearance ■of the gas. It would in no wise have interfered with the work, and would have been there ready for use whenever the gas was •encountered. Therefore the master could have and should have provided a safe place :for the decedent to work; and, the reason for the rule referred to in the majority opinion failing, the rule itself would not apply.

My views upon this subject "might be elaborated at greater length, but it is unnecessary to do so, since I concur in the view that it conclusively appears the decedent was aware of the danger attached to working around the well without the same being equipped with a jet, or was legally charge.able with knowledge thereof, and he therefore assumed the risk incident thereto, wherefore appellees are precluded from recovery '.herein.


author: CONNER, C. J.

text:
    THOMASON v. ROGERS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 8, 1913.
    Rehearing Denied April 5, 1913.)
    T.- Appeal and Error (§ 1043) — Questions Reviewable — Immaterial Questions.
    The refusal of the court to determine the plea of privilege of defendant to be sued in the -county of his residence before hearing the cause • on the merits is immaterial, and defendant may not complain thereof on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig., §§ 4115-4121; Dee. Dig. § 1043.]
    2. Venue ,(§ 8) — Fraud.
    Where a defendant employed to recover .and sell land of plaintiff for one-half of the land recovered or one-half of the proceeds of land ■sold did not report any sales made and appropriated to his own use the whole proceeds thereof, and failed to inform plaintiff of the status of his interest, though repeatedly re■quested so to do during a course of years, he was guilty of fraud which must be deemed to have existed at the time and place of sale of the land, and under Rev. Civ. St. 1911, art. 1830, cl. 7, providing that, in cases of fraud, the suit may be instituted in the county in which the fraud was committed, he could be sued in that county, though he resided elsewhere.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.]
    3. Brokers (§ 71) — Compensation — Contracts — Construction.
    A defendant employed to recover and sell lands of plaintiff for one-half of each separate tract recovered or one-half of the proceeds of any single tract sold may not appropriate the whole of the proceeds of a tract sold merely because his interest in other tracts not sold is of as great a value as the proceeds.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.]
    4. Limitation op Actions (§ 100) — Fraud-Discovert of Fraud.
    Where plaintiff employing defendant to recover and sell his land for a part of the land or the proceeds thereof was not informed of sales made by defendant, who appropriated the entire proceeds, and did not learn of the sales until after an independent investigation was made, an action for the fraud, begun within two years of the investigation was not barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    5. Appeal and Error (§ 742-) — Assignments of Error — Propositions.
    The contention that appellant should have been allowed to deduct from appellee’s share of proceeds on a sale of land certain expenses not presented as an independent proposition, but under an assignment alleging that the court erred in rendering any judgment, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by Mattie 'Rogers and another against G. M. Thomason. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    G. W. Thomasson and H. A. Allen, both of Henrietta, for appellant. Taylor & Humphrey, of Henrietta, for appellees.

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

   CONNER, C. J.

Appellees instituted this suit in. the district court of Clay county against appellant, alleging that he had in March, 1904, sold 267 acres of land situated in Clay county for the sum of $2,000, one-half of which belonged to appellees, and which appellant had never accounted for, but had fraudulently converted to his own use. Appellant presented a plea of privilege to be sued in Jeff Davis county, the county of his residence. He also pleaded the general denial, and specially to the effect that prior to 1904 he had been employed by appellees and others to sue for and recover certain lands belonging to them situated in Clay county, Tex., under an agreement to receive as compensation for his services one-half of all lands recovered, or one-half of the proceeds if recovered and sold, lie having at the time received a power of attorney authorizing him to so sell; that by virtue of such employment he sued for and recovered the land in controversy as well also as several other tracts situated in Clay county; that he had sold the land in question as alleged by appel-lees, and out of the proceeds belonging to the appellees had first deducted certain costs and expenses incurred by him during the litigation and amounting to more than $100, and had applied the remainder in satisfaction of his fee. The case was tried before the court without a jury, and judgment rendered in favor of the appellees for the sum of $726.95, together with costs.

The appeal presents in different forms but two questions that are deemed tó be material.

Appellant first insists that the court erred in overruling his plea of privilege. The assignment under which this question is raised is based upon a bill of exception to the action of the court in refusing to determine the plea of privilege before hearing the cause upon the merits, which is an altogether different question from the one presented in the assignment, and one which we regard as of no materiality. But, regardless of the insufficiency of the presentation, we feel unable to say that the court erred in overruling the plea of privilege. While it is undisputed that appellant at the date of the institution of the suit was a resident of Jeff Davis county, yet it is further undisputed that on or about the date alleged appellant sold the tract of land described in the plaintiff’s petition for the sum of $2,-000, receiving property estimated as of the cash value of $500, and $1,500 in notes, which he afterwards collected. It is further undisputed that appellant appropriated the whole of the sum for which the land was so sold to his own use and benefit. The land had been recovered for and was owned by appellees and' others, and they were undoubtedly entitled to receive from appellant one-half of the proceeds of the sale. Appellant urges that the appropriation was some time after the sale and occurred in counties other than Clay, and by virtue of the claim now made that he was entitled to so appropriate appellees’ part of the proceeds in compensation for his services in the suits mentioned. But we think it clear that, under the contract with appellees, the extent of appellant’s right was to receive one-half of each separate tract of land recovered or in event Of a sale of any tract one-half of the proceeds, and that his duty to his clients upon the sale of the land in question was to have forthwith reported the sale and remitted to them their part of the purchase price, less perhaps such expenses as he would have been entitled to charge them, but this appellant did not do. On the contrary, appellees’ testimony is to the effect that the sale was never reported to them; notwithstanding they had repeatedly written appellant during the course of several years to learn the status of their interests. Under such circumstances, we do not think we can disturb the evident conclusion of the trial court to the effect that a legal fraud upon appellees was committed, and that the intent to so commit such fraud must be inferred to have existed at the time and place of the sale of the land in Clay county when and where appellant received the cash consideration and the notes afterwards converted to his own use. If such conclusions be correct, and of this we have no doubt, the suit against appellant was properly prosecuted in Clay county by virtue of the. seventh clause of article 1830, Revised Statutes 1911, which provides that: “In all cases of fraud, and in case of defalcation of public officers, in which cases suit may be instituted in the county in which the fraud was committed, or where the defalcation occurred, or where the defendant has his domicile.”

Second. Appellant insists that the court’s "judgment against him on the merits is not sustained by the evidence, but we think we must also overrule all assignments involving this question. Appellant’s only serious contention, as it seems to us, is that he had the right to appropriate appellees’ part of the proceeds of the sale of the land in satisfaction of his fee, and he has cited a number of authorities as supporting this contention. The authorities, however, we think are inapplicable here. They’ relate to cases in which some specified sum as fee had been agreed upon, and where the attorney having received money of his client was permitted to appropriate it in satisfaction of the fee agreed upon, but here no such state of facts exists. In the case before us, as before stated, appellant’s greatest fight was to receive one-half of each separate tract of land recovered by him, or one-half of the proceeds of any single tract sold. We do not see how it can be seriously contended that he would have the right to appropriate the whole of the proceeds of the tract of land involved in this controversy merely because his interest in other tracts not so sold was of as great a value as the amount of the proceeds converted. To so permit appellant to do would be to enable him to dictate his own terms of partition and to appropriate money in lieu of land against appellees’ consent.

It is also urged that appellees’ claim was barred by limitation, but the evidence seems to be against appellant on this issue. Appellees’ testimony, as before stated, was to the effect that for a number of years following the sale of the land in 1904 they had repeatedly written to appellant seeking information as to what had been done with their lands, thát appellant wholly failed to answer such inquiries, and that appellees did not learn of the sale in question until after they had instituted an independent investí-gation less than two years prior to the institution of this suit.

There is also a contention that appellant should have been allowéd to deduct from appellees’ part .of the proceeds certain expenses, but the question has not been presented as an independent proposition, but under.an assignment alleging that the court erred in. rendering any judgment, and this assignment we cannot sustain.

: ■ We conclude that all assignments of error must be overruled, and the judgment affirmed.