*1 Co. v. W. D. Foth. El Paso & Sоuthwestern WOT\ the date of Dr. Cantrell was called after these statements that some remedy some treatment application gave prescribed again, for her to the fatal attack when he called and from prior inconsistency time her There no attending became physician. Calvert, between the of Dr. Cantrell and of Mrs. for statement there was application time between the date ample 15th have day which the treatment Dr. Cantrell July, might occurred. There was of death nor in proof part nothing of the record of the as was the Company, then hands of seen, so far as we anyone that would to the mind of suggest had not suspicion that Mrs. Calvert in her spoken truthfully appli- cation and the can not be charged notice' Company existence of a fact not disclosed doctor’s statement. It sug- gested that Dr. affidavit Cantrell’s showed he had known her for years, fair four date to- pointed which fact anterior the application. construction would be that Mrs. Calvert intended state if the matter Dr. Cantrell had her correctly treated within four years she would have recalled it and have stated the fact. was no which to There this submit the issue of waiver of ground forfeiture and the erred in instructing return verdict the defendant issue. is also claimed adjuster the Insurance Company, full after him the fact that Mrs. statement correct, Calvert caused Calvert to go Greenville in Hunt County purpose consulting with a attorney view to adjustment this claim. At the time that occurred Com- but, all рany denying liability upon the to avoid policy, litigation, a small proposed pay Calvert of the amount and percent in the course of this negotiation adjuster suggested that should meet in Greenville to consult with an attorney upon There in this no matter. tract, admission of validity con- parties simply settle a attempting disputed right as an which can not be regarded acknowledgment the contract under which Calvert claimed. is ordered judgments of the District Court and Court of Civil be reversed and that rendered for the Mutual Life Security Insurance Company. Reversed and rendered. Company
El W. D. Foth. Railroad Paso Southwestern No. Decided November 1907. —Charge—Master and Servant—Care in Choice Protective Device. specifically Requestеd instruction submitting, case of a injured fireman by explosion engine, of the water locomotive the non-liability of de- choosing it had. used
fendant in ease care in between approved different employee danger devices from held improperly refused. 143-145.) (Pp. 2.—Same. to his the master servant of appliances choice is met reasonably safe, uses select one when without requiring him You. 101. [November, *2 best, Missouri, Carter,
to seek for the safest Sy. and K. & T. 484, 144, 145.) distinguished. (Pp. 3.—Same. Consistency protective of a device with efficient use of the instrument the applied to which proper is a the determining element to be considered in (P. 145.) of due care in its selection. Error District, Court of for the Fourth Civil an from El Paso appeal County. Eoth sued railway was affirmed and had It judgment. on appeal by defendant, who a writ of thereupon obtained: error. The opinion the Court Civil is specifically Appeals, approved involved, one except upon was as follows: point Appellee instituted ELY, Associate for dam this suit Justice. ages, 26, that alleging on was in service of August he a appellant, fireman, locomotive while he was on a loco and that motive in his on the loco engaged glass duties as fireman water motive water his left that exploded destroyed eye. alleged pres too thin to withstand the glass being defective that adjusted, sure water and that- it was not steam, properly that the was not glass provided had not been with tested and inspected or so as to hold the an guard glass screen propеr explosion. the water protect answered Appellant impossible injury, appellee explosions possible so as to glass prevent the glass and that he entered service knew this when appellant’s he eontiued in so knowing appel- fly pieces, liable to burst and the risk was guilty had assumed! and therefore lant’s employment of contributory negligence. -a appellee resulted in verdict A trial by jury $4,000. the sum of is a of glass tube made mentioned petition The water glass- y2 inches, and is on each loco- 10 or 12 placed an inch or % water glass water is boiler. The how much to indicate motive head, of the in the cab in front boiler straight np stands water in the boiler valve and is connected engine, from through at the these valvеs water and one bottom top exploded The water glass. enters the water the boiler running shields with slots or them openings metal protected wide, three there being about inch glass, full length % shield used a wire was shown that other railroads slots. inch of an the meshes about the glass, went over % meshes to the inch. size, sixty-four square about making m passed could not have destroyed appellee’s eye of glass piece to protect railroads used hv other screen meshes through a fire- his discharge while Appellee glasses. glass, the water destroyed by the eye his left had man been properly into the If eye. of glass a piece throwing W. D. Eoth. El Paso Go. & Southwestern 1007-1 Appellee would not occurred. injury appellee prоtected pro- risk water glass, from the use did not assume was, contributory negligence nor was guilty tected as appli- such using service of a company account of remaining ances. “Be it act: Twenty-ninth Legislature passed following of Texas: enacted State or re- suit against person, coporation “Section 1. That for the damages or street railway ceiver a railroad operating servant, or caused death of an or personal injury employe receiver, or or corporation wrong person, where the deceased injured employe assumed risk plea defect knowledge means of plea ground and *3 or death shall not be available the injury which caused danger following cases: аn before in- had being “First. Where such employe opportunity or a superior by or killed to inform the entrusted jured, employer to or cause to be remedied remedy with the employer authority to be su- defect, employer does or cause notified the notify and or time, a it shall be provided thereof within reasonable perior or super- information where the such necessary employer to such give knows of defect. ior thereof already would ordinary of care have continued in “Second. Where a person of and in such danger the defect knowledge the service with the or employe give it shall not the servant notice necessary be Laws, 1905, 1 hereof.” Gen. as in subdivision defect provided 24, 1905, was 386. That on therefore took effect p. April act effect when August was appellee, injured risk The of assumed effect of that law is eliminate plea to case, injured where before being an has an employe opportunity defects his notify emplovrr authority remedy or a superior given or notify employer existence of such does defects and such when the necessary within a time. No notice is superior reasonable or also force employer destroys knows of the defect. It superior of a of would plea ordinary assumed risk where a of care person remain in the of of defect service his with employer knowledge an Of has danger. employe course the matters as to whether an "him, his opportunity nоtify notify and does does employer, as of defect person ordinary knowledge service of the fact questions are remaining employer, those a and the submitted jury, very properly determined jury. matters to the appel- used by The to show that the metal shield testimony tended so constructed was defective in not being its water glass lant around out by be driven pieces glass to minimize the chances as whose duties injure employes as to with such force a it. was defect construction It in proximity them brought the statute of purview come within the would clearly justified the submission defect 'the evidence established ordinary care would have a person. whether question a knew when he defective of appellant in the service remained {November, Yol. its use. The the danger attending water used and being was a defect the evidence in jury finding there justified n justified he knew of the although defect, that appellee, service of appellant. remaining stated is no between the antagonism proposition, There the safety railroad are not insurers of charge, companies in the statute their of law contained employes, propositions statement hereinbefore- and there was copied, nothing different calculated to mislead or confuse propositions jury. a (cid:127) have How the of whether a person question manner remained in the in after he knew the is not which the water was to be' ascertained equipped, but clearly indicated insisted thаt a appellant, n it. decided someone decided had authority, a we know of no fact other that had the purely under the question it, law of except decide When jury. affirmative, undoubtedly determined that issue as the evidence justified them in of assumed risk was removed doing, from the cáse. must have been argued by appellant appellee guilty if knew of glass, the defects contributory negligence follow. If he not been relieved necessarily but from the that does not the risk assuming making imputation care, the test the conduct person risk, contributory the state of assumed defects would create but not between the two must distinction be observed negligence. confusion will result in the *4 of the application rules pertaining two defenses. рroved seventy-five When or eighty persons on railroad water using engines appellant’s equipped with glasses, as was one that guarded and hurt it would exploded appellee, seem that fact alone would show that of care persons ordinary engines,' justified use eliminating question assumed risk from from of the case. When defense is removed follow, case it does not necessarily knew appellee because defects the water that he was glass negli- of guilty contributory in the service of rules of gence remaining his employer. The risk assumed and contributory negligence widely are on dependent tests and who separated principles. of one Entering employment is known to furnish defective risks assuming the appliances might be therefrom, contributory but latter not negligence. The omission, is the such act or doing amounting want as, care, is the defendant, with some concurring act of the negligent n cause of There proximate injury sought. which redress is must be some positive act commission or omission that caused illustrate, or been injury had explosion contributed thereto. To if the caused too low in and it by allowing water the boiler get mark, safety been the duty of water appellee keep up he might contributory failing have been guilty negligence perform this Or if he with water had been duty. working have might at the time and caused the such act thereby explosion, kind, doing nothing been negligence." He contributory Co. W. D. Foth. El Paso & Southwestern 1907.] but was engaged performancе sweeping took when the is not the ex- place. pretended cab took on account of act of omission place commission or plosion his on but was caused the inherent water power of the hot part, steam. The not glass, guarded, or out and struck properly flew appellee. risk Assumed refers general course action connection the master’s way with business and the doing furnished; appliances refers to contributory negligence servant acted question whether prudently connection with a certain matter arose for his consideration certain time The first is place. choice, an intelligent the latter is carelessness. the case Mundle v. 30 Atl. Manufacturing (Me.), Rep., it was said: the- risks of an one “Assuming thing and a different from quite thing incurring through injury contributory Again Dempsey Sawyer negligence.” 1035, 49 Atl. (Me.), it was held: “There Rep., is an dif essential ference between the defense of contributory negligence and the defense of risk—a assumption obscured, difference often but clear the mind for a kept correct understanding relative and duties master servant, as to rights the dangers arising from the use defective or machinery appliances. Contributory is a breach of of due legal duty law imposed hy servant, however upon unwilling be. As protesting of risk is sumption duty, but is purely upon part voluntary of the servant. The risk from the master’s breach of never sciens, protesting rests servant. unwilling Volens, not test.” is the knowledge We conclude that mere of the defects in the constitute contributory negligence. did not There was no want of part appellee at time of the explosion he could guilty been of contributory hence negligence. can not be held that acquiescence contributory Rail Hesser v. 50 N. E. negligence. way (Ohio), said As Servant, in his Labatt work on Master p. sec. 353: “The inferring negligence, law, for not as a matter of reasons under such circumstances, are, course, if it stronger appears that the practice pursued only by co-servants the injured but also servants other concerns kind as person, same See employer.” his also Railway that carried v. Moody (Fla.), *5 148; v. Railway Clark S. (Ky.), So. W. St. Rep., Rep., Miller, 126 503, Fed. Johnson v. Cordage Louis S., 1. None of decisions Railway, by 196 U. cited appellant hеreinbefore expressed. in conflict with propositions is well by The rule herein stated sustained Court of Supreme Railway Kelly, case of Texas it wherein condition, Kelly said: “If its had used the knowing defective hand his to so, order of officer do superior, car without but it appeared prudent circumstances a under like man reasonably car, could made use of the the same be charged contribu imposed but the charge upon Kelly show tory negligence, duty to Supreme [November, Voe.. a order of was, time, at under the acting in addition that he of contribu- him from the in order exonerate officer to superior tory negligence.” for instructed case desired a verdict man would have of whether a it, regardless reasonably prudent Cross, or Green v. the circumstances not. on the under engine worked Texas, 132. whether contention by appellant, question If the made to railway be left safe one should reasonably .always an a appliance into courts juries, be inquired and should never companies, held liable could never be be railroad companies sustained their furnished to from defective appliances for injuries of the United of the courts the attitude may servants. Whatever States, support a rule finds no countenance or other States can be heard A railroad the decisions Texas. in selecting care ordinary to exercise failing its justify it a statement employes, by furnished its to be appliances how defective. no matter аuthority appliances to choose its own has the his business in carry of the master right The doctrine that a conceded, but it is not so sacred a. right 'be his own way may into to ascertain if he has negligently can not it inquire or jury the way master run his business in his servant. injured an as to whether himself, ordinary inquiry but subject suit was used. use railway company It was improvements with the best appliances its provide engines it was a of fact of its employes the exercise The final arbiter as to was exercised. whether such care master, who of all others would be of such care can an care, own but must be most unfit tribunal to 'decide its in this court of law and The evidence justice. impartial rule, for that a wisdom of such a it clearly appears shows the hands of its meаns, at the appellant, screening use of proper would have its from the protected employes dangers water glasses, slotted guards, give the use open practically attendant constantly against recurring explosions glasses. no protection Court of the said United States in case of As McDade, S.,U. 64: “Where no necessity exists case, the use of dangerous and where present appliances, only due skill and care to requiring appli- is a matter make the safe, no reason why there is should be employe subjected ances unnecessary proper dangers wholly operation business employer.” established, evidence, preponderance a device was in use explosions other railroads that protecting against by appellant, the one used was much safer than much of the that such a device was an tended to show absolute protection. it on some adopted of its engines, that appellant appeared for the older device in a he substituted few could minutes and failure safer adopt small cost. better device to the exercise care in issue as raised the selection of appellant, properly submitted to the appliances *6 v. W. D. 139 El Paso & Both. Southwestern 1907.1 Carter, Texas, v. Railway in. is upheld This jury. proposition to in this tended testimony “The 461, where it was held: kinds of used spark-arresters of two different that each prove considered railroad by experienced railroad and eaсh was companies other, a condition which produced men as better than for the railroad to make choice between necessary company this duty the two. state of it was the railroad facts, Under to as a man of is, exercise care—that such care company under to select ordinary prudence would exercise like circumstances two, but, use the better of the used such care as the having law honestly it can not be held that a failure of requires, exercised in an attempt discharge -render the liable.” It would seem that a metallic screen with apparent very small meshes would afford more from an explosion than four metal, upright pieces one-half an inch perhaps apart. It was the railway use company- ordinary care provide engines with the best devices approved preventing from the of its injuries water glasses. W© do not there conceive merit that, the contention was in the appellee employment appellant when the act 1905 went into effect had assumed, that, before the risks aris from use of ing the water was in glass, which the same condition at time as inflicted, when the injury the law did not apply him. When the statute went to assumed risks was into effect in the law as April, changed according terms of act and had the same application it did to appellee those who might accept thereafter. Coley Railway 57 L. R. (N. C.), A., 817. We think can be no doubt that there the defect referred to in the statutе is as well to applicable defects the original construction, as to those from a failure to keep appliances up standard of This safety. the law conception is amply sustained by cases cited notes to the case last above cited, among number, Railway Lamb (Ala.), So. Rep., Ellis v. Pierce 51 N. E. (Mass.), Gunn v. (Mass.), N. E. Rep., 1031. The fifth assignment error states that “the court erred in refus ing give jury defendant’s special charge 3,” Ho. sixth states that “the court erred in to give refusing defendant’s No. 4.” For special charge under statements the two assignments reference is made to many pages copied the brief second, first, under the third and fourth assignments error and to certain pages Heither transcript. nor their charges substance are the brief. copied is not incumbent court to consider of' assignments error under which such statements are made. Davidson, Haley however, stated, bemay the law as to the facts was applicable given by the even, there was necessity no for other charges, though correct expositions of the law. is not open the criticisms contained in the seventh assignment of error. It did the province invade *7 Supreme Vol. 101. [November, in did not assume that it was negligence. guard not appellant with wire screen. There was evidence to effect the was not did not in guarded the err properly issue to the presenting jury. The of assignment error is of has been eighth disposed by what said of hereinbefore the discussion of the assumed risks questions and It the cоntributory was not error to submit to negligence. the of have re- as to whether care would person
mained in of of the defect appellant in the water glass. of their water that, contention because the guards kind glasses, them, or some of “placed upon engines by of Co., Baldwin which is asserted to Manufacturing Philadelphia,” world,” be “the of it could not engines manufacturer greatest not sustained. be can be guilty guards, using displaced Two world had largest railways systems device, deemed a safe the “Baldwin slotted for the because not guard” intended, itself for and even appellant which it was purposes and in its stead a begun it, using had wire screen which with the the work of displacing safer the ones swore much than witnesses There was evidencе to sustain verdict metallic bars. jury. not or unreasonable” “oppressive, arbitrary Act acts have been in existence in nor it unconstitutional. Similar and have been different Union and England, Canada States the courts of last resort. Similar laws have sustained uniformly Court of the also United States. been sustained W. 902; Railway N. Railway (Iowa), McGuire v. Ellis, S., 158; Bristol, S., 567; Railway 165 U. 151 U. Y., N. Y., Railwav, 111 N. Co., v. Buffalo 569. People Steamer of New the Court of York true said and their exer- corporations property last cited case: “Railroad hold' benefit, subject their for and are therefore public cise functions them, Legislature has created may control. The which legislative business, shall their the mode in which transact regulate they freight shall transportation which price the. trains, run their they may passengers, speed run upon highways in which cross or way they may turnpikes travel. all such as are regulations used make public ap- railroads, lives of carried persons propriate protect It could also crossed railroads.” be or passing upon highways compel has the added, Legislature authority adoption of those in the service appliances of devices and not of fellow servants shall the doctrine can declare railways, and can railways employes, their in cases between apply law of assumed risks. alter, or abolish the perforce, change too often the mistake is laws, constitutionality discussing government made rules the same apply endeavoring the control occupations, engaged public natural persons of' the hands very rests law, creatures whose existence Ey. El D. Co. v. W. Paso Southwestern Foth. 1907J\ branch of the can and must legislative government, and which in a regulated individuals, manner that occu- private pursuit with a due of free pations, the regard government principles personal liberty, regulated. can rights Barring interference with vested and. the rights, rights obligations property contracts, existing cor- may impose upon private porations, engaged restriction serving public, any additional and burden that the public good may or render require proper expedient. The statute of interferes with no vested right does *8 manner any impair contracts, obligation but it is a measure passed, undоubtedly, to better protect the lives limbs of those who and are in the railroads or street is an railways. exercise of the police of the power State over the that it creatures has by its legislative fiat into existence. “This brought police power to limbs, State extends protection lives, health, comfort of all quiet of all persons, within property the State.” Cooley’s Const. Lim. 831. (7th ed.), The exercise of is police the exercise power power to belonging State sov ereignty, States. protected reserved and Constitution the Unite The clause of that Constitution which forbids the passage of laws impairing obligation contracts, is invoked frequently by pri- vate corporations to prevent legislatures of the Statеs from regu- lating them, controlling uniformly held, but it by Federal and courts, State that are subject such regulations from time time as be deemed the' necessary guard rights of individuals and other corporations, shield public health, and protect the safety of life limb. There is no limit to this police power, that except be comfort, it must that must exercised for the safety welfare of society; it charter destroy nor privilege interfere with any vested right. State Texas has not transgressed these bouncis defense of assumed restricting the risk. The Act 1905 is not unconstitutional because of unjust dis- in favor crimination of interurban electric railways, which are not embraced within the terms of the statute. The argument in favor position asserts, of that answered when it and pro- assеrtion, authorities to sustain its duces that an interurban railway “railroad” or a is neither a “street railway,” expressed in the of a different class Being statute. discrimination in their there can be no such thing favor, for legislation is not that discriminatory bodies or alike certain associations. So if applies interurban rail- term ways “railroads,” are embraced general “street are in the statute the law as used railways,” applies them, but if they association, to a different class or railroads belong street railways no more their right complain being included the law than are not included. Cook, that automobiles Campbell Texas, 86 State, 630; Oil Co. v. 19 Waters-Pierce Texas Civ. 1 App., seeks to attack the Appellant validity of 1905, Act on the bill was not read on several ground three days in the nor did four-fifths of Senate vote Senate, suspend constitu- Supreme [November, Reports, Yol. Texas rule, con- journal, refers to Senate substantiate tional journals held in this It has been State tention. to in order to invalidate a statute can not looked House and the President Senate signed b>y Speaker 667; Texas, Ex the Governor. Williams v. approved by Taylor, 438; Galveston, Blessing 28 Texas V. parte Tipton, App., 641; State, Texas, 526; Bank, Presidio Day County Paschal, Civ. 8 Texas Civ. App., App., McLane case, In the decision in the cited which was ren- Williams-Taylor Court, it is present dered Chief Justice of the held: bill shall “Our Constitution that after the it provides, passage signed by presiding presence officer of each house in hоuse; and we bill has been so signed that when- a opinion are Governor, it was and has been submitted to and approved by intended that it should evidence that act had afford conclusive been manner Constitution. Such passed required think, something law, the rule the common we the absence intention, is fair contrary in the Constitution showing expressly rule should presume prevail same intended* indicating this State. There is no the Constitution provision intention; any direct and the fact contrary manner such that certain provided things shall be journals kept such purpose.” be entered therein to shbw any we think insufficient *9 It was further held a rule the use permitting journals invalidate a “would lead to inextricable confusion.” statute above, is in Ex cited opinion commended Tipton, the Court parte v. in The State the court as well as the opinion from the Swift, Nevada, following 10 176. case the Tipton the passed “Where act has been Nevada case with copied approval: House, ap- officers of each the signed by proper the Legislature, Secretary filed in the Governor, the office proved conclusive evidence the a record which is State, constitutes the journals kept act as enrolled. Neither the the' passage introduced, nor the amend- nor the'bill as originally Legislature, evidence, received order to it, can be parol ments attached nor enrolled, authenticated, properly that an act of the Legislature, show law.” State, did not become a Secretary with the deposited the sub- think, correct rule decisions, we the express Those in any decision questioned their soundness has never been ject and case of v. however, in the is urged, this State. did Texas, 150, 92 McGlamory, appears when a stat- determining journals look overruled its de- effect, by implication into and therefore went ute on the But subject. Texas courts cisions of other as well those McGlamory for no merit in that position force or there if two-thirds of both to ascertain journals only consulted date approval, statute from houses had effect give voted Williams- with "expressions is in and that action entire accord from v. said, Ewing in distinguishing wherein it Taylor case offi- presiding “The signature 1000: Duncan, Rep., 16 W. S. passage attested the Governor cers the approval v. W. D. El Paso & Southwestern 143 Foth. 1907-1 act; but did not determine that it had taken effect from date of its There no passage. which fact, method attesting bill to take effect from its purports has received the passage two-thirds we required majority, journals deemed the the best evi- dence for that question, and looked to them only.” purpose is not contended this case that vote was for not sufficient immediate 1905. passage Act is affirmed. Patterson, Woodson, Buckler & in error. The court plaintiff in its general charge told the in a having jury only general manner to use reasonable pro vide the safe on its plaintiff reasonably guard glasses, ask, appellant had and it right the court give, speciаl charge calling attention in this direct manner specific to this of the case. El Electric phase Paso Kendall, Ry. 221; Co. v. 38 Civ. Texas St. W. App., Louis Ry. S. Arnold, 39 161; Texas Civ. App., Missouri, K. & T. v. Ry. Texas, 635; 89 T. McGlamory, Texas, 53; Missouri, Rogers, K. 91 Ry. v. Louis, St. Ry. S. W. v. 92 Casseday, Jno. It is Dyer, L. error for appellee. re by giving on the peated charges same issue to emphasize importance it undue The matter give prominence. charge given court and in the instructions law requested fully the presented ap case. The plicable was a special charge repetition of matter already Galveston, A. charged upon. H. & S. v. 94 Ry. Morris, Texas, 509; v. Houston E. & T. Highland Ry., W. S. W. Rep., 650; Co., v. Texas & P. 69 W. Kroeger Ry. 810; S. Rep., Pelfrey Ry. Co., Gulf, Texas 411; v. C. Ry. Rep., S. W. C. v. & S. F. Holt, 594; Missouri, K. Ry. S. W. & T. Rep., S. Walden, 584; W. Rep., Ry. Rep., 560; Louis S. W. S. Byers, St. W. Weideman, C. 62 S. W. & T. Ry. Rep., Houston C. Ry. v 61 S. W. Byrd, The court not err in did refusing give requested No. it madе of "ordinary reason that the use care in making *10 honest of upon selection the difference as to the depend, opinion glasses, safest mode of water but made protecting upon it depend Carter, of Missouri T. efficiency of use. consistency Ry. & K. Texas, of Mr. Williams the the court. opinion Justice delivered one, the Court of Civil all of the save Upon questions, ew (18th with which Texas Ct. agree. reached conclusions however, the the trial court We are of committed 610.) opinion, defendant by error in the fourth the charge requested refusing special error) which as follows: in was (plaintiff injury, of plaintiff’s “If the the time you find from men, charged railroad among competent there existed with skillful and of difference a engines, the water duty рrotecting glasses consistent such as glasses, the safest opinion protecting mode Yol. 101. [November, such, with their as efficient use and that the defendant in company the exercise of its best judgment, selected the kind protection that engine the and around the glass at the time of plaintiff’s then injury, the defendant would not be liable the even plaintiff the though jury conclude from the evidence that the kind protection selected used the by defendant wras the kind best injury calculated to of defendant in ease prevent employes it bursting glasses, ordinary used care provided making the selection.” The was struck in the plaintiff (defendant error) eye by piece glass thrown out of the water by glass which he was as fireman. The engine upon emplоyed alleged was that was not glass properly guarded a shield to of an prevent explosion, such as the flying event shows The defendant had evidence water around its frequently happened. kind one of shield which wras and which extensively used condition, defect, one, its if normal its there only its of shields had been were in original construction. Other kinds use which was opinions differed in their the best and experts therefore, determined, safest. was that correctly issue to be very The The charges given by stated in the instruction. the court special inferred laid such that the rule to be as jury might refused, but this is a sufficient answer down to a requested defining jury very thus specifically proposition request defense relied and facts which grouping which the Carter, T. K. Co. v. Ry. establishеd. might (Missouri, Texas, Texas, 484; McGlamory, T. Co. v. Missouri, Ry. K. & Ry. Casseday, St. Louis W. 526.) S. this court said: “The trial court committed first cited of this case in failing under the facts error in the charge given use railway company it was the instruct with the best approved devices engines provide therefrom, and' fire escape sparks preventing charges which were special asked. did not refusing err to a case in which applicable the law presents the court law, arrester of the spark required the character the question failed to submit charge given case the of this under the facts but the selection diligence issue—the important tended to in this case that each prove testimony apparatus. railroad companies was used of spark-arrеsters kinds two different than men as better railroad experienced was considered and each necessary a condition other, which produced two. Under this choice between to make a company railroad to exercise company railroad facts, state ordinary prudence is, as man care—that under, and use the better to select like circumstances exercise would can law requires, such care used two, but, having in an exercised honestly of judgment failure held that not be liable.” render the duty discharge attempt *11 that thought seems to be it Carter authority Upon required erroneous, in in question now the instruction Ey. Geiggs. G., v. E. C. &' S. F. Co. G. 1907.] select and provide reasonably the exercise of to to exercise only sаfe when its select the appliance, duty and best. But this overlooks difference between important safest an The Carter of railroad com duty the two eases. case treats to be exercised fire from its locomo panies tives for prevent escape third and that property persons, defined' generally defined the case cited as it the au In the thorities. case we have to do with the of master present servant, (Gal to veston, which is as stated the requested instruction. v. Garrett, Texas, 265; Gulf, H. & S. A. Ry. C. & Walker, Ry. S. F. 129.) is also urged proposition charge is incorrect because it makes consistency with the efficient use of the water glass an element to be considered a selection of a making shield it. But think there be no doubt wе can of this. The water glass was used condition, time, to show so boiler, of the boiler danger explosion might itself be avoided. It was the shield around the so important arranged allow the water to seen at all easily to fireman. times engineer and It would therefore be an. view imperfect be considered the kind of shield selecting to be used which would alone, make depend, consideration danger the serv- ants from an itself. For the error pointed' out the reversed and the cause remanded.
Reversed and remanded. Company Griggs.
Gulf, Colorado Fe v. R. Santa G. No. 1746. Decided November Servant—Negligence—Acting Emergency. Master and bridge by pinch A carload with timbers was started bars to run down distant, grade point yards about 400 where to be unloaded. A brakeman, foreman, movemеnt, at direction of the on it climbed control foreman, might called to the brake rod was bent and work oar, Being brake. as a lever told the foreman that he must hold the he used an iron bar wheel, caught the brake the bent brake staff on the end one load, obstruction, pulling of the timbers of the hard to overcome the from the car the sudden revolution of the yielded. thrown wheel when it recovery supported injuries the facts in his favor Held received. 147.) (P. for the Error the Court Civil Fifth District, County. from Johnson appeal railway sued the and recovered Griggs judgment. It was defendant, who thereupon affirmed obtained appeal writ of error. Lee, K. Brown & Lomax and Chas. plaintiff J. W. Terry, Griggs was not an inexperienced employe, the undis
error. wide is that experience, and varied puted Houston Yol, Cl, Supreme—10,