each would perform in connection therewith." The answer admitted was as follows: "Such a special train would, ordinarily, be accompanied by an engineer, fireman, conductor, and two brakemen. The engineer would attend to his engine: the fireman would assist the engineer; and the conductor have full control of the employes of the train, would look out for the running of the train, and would see that it kept out of the way of all trains, and would run according to orders from the dispatcher's office. One brakeman would be at the rear end of the train, and the other at the head end." The evidence was objected to on the ground that the hypothetical case upon which the opinion of the witnesses was asked was not the precise case shown by the evidence. There was evidence to show that during the hours required for the water train to make the trip from Galveston to Duke, and to return, there were but two regular trains assigned to run on that part of the road,-one going north and the other south,-although, during the 24 hours, eight trains did run as stated in the question. Concerning this matter, there was no conflict in the evidence. It is therefore insisted that the question should have been whether or not it would have been safe to operate a train such as is described in the question over a road where, during the time of its trip, it would meet but two trains. We understand the rule to be that the opinion of an expert upon an hypothetical case will be excluded unless there be evidence tending to prove the supposed facts; but we have found no authority which holds that an hypothetical case must embrace every fact proved, or which there is evidence tending to prove. In Filer v. New York Cent. R. Co., 49 N. Y. 42, it is said: "Some latitude must necessarily be given in the examination of medical experts, and in propounding hypothetical questions for their opinions, the bet ter to enable the jury to pass upon the questions submitted to them. The opinion is the opinion of the expert, and if the facts are found by the jury as the counsel by his question assumes them to be, the opinion may have some weight; otherwise, not. It is the privilege of counsel, in such cases, to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed." The facts assumed in the question before us were established by the evidence in the case. If counsel for defendant desired the opinion of the witnesses as to the safety of operating a train between the hours when only two other trains were to be encountered, he could upon cross-examination have asked his opinion based upon that state of facts. We think there was no error in admitting the testimony.

-Damages.

The court did not err in refusing the following instruction asked by appellant: "You are instructed that the measure of damages in this case is the value of the services. of Alexander Compton from the day of his death Death of child to the time he would have attained the age of twenty-one years, less the cost of his maintenance and support during that period." The appellee, being the sole surviving parent of Alexander Compton, was entitled to his services during minority, and hence, at common law, could have recovered their value during that period in the event the appellant was found liable for the injury. But it does not follow that this right abridges in any manner her claim for the compensation given by the statute. Rev. St. art. 2899 et seq. It happens in this particular case that the plaintiff, being the sole surviving parent of the deceased, is entitled to recover, if at all, damages not only for the loss of services during her son's non-age, but also for the loss of any prospective pecuniary benefits which she may have received from him after he attained his majority. She has sued for the whole in the statutory action, as we think she had the right to do, and her right to recover in such action cannot be restricted to the period of her son's minority.

Plaintiff's

expectancy of life.

Neither did the court err in refusing to charge the jury that, by reason of the plaintiff's failure to prove her expectancy of life, she could recover damages only for the loss of her son's services during his minority. Evidence of the probable duration of life by experts in the business of life insurance is admissible in such cases, but is not necessary. Our statute contemplates that the jury shall judge of this upon proofs being made of the party's age and physical condition. It was, in effect, so held in two cases decided by this court at the last Tyler term. Texas & P. R. Co. v. Lester, 75 Tex. 56; Missouri Pac. R. Co. v. Lehmberg, 75 Tex. 61.

The questions presented by the other assignments of appellant are not likely to arise upon another trial, and need

not be considered.

Exemplary

damages.

The appellee presents the following cross-assignments of error: "The court erred in charging the jury as follows: You are charged that you can find no exemplary damages in this case; and also in failing to give the second special charge requested by plaintiff ; the same embracing the issue of exemplary damages." We are of opinion that the court did not err in giving the instruction quoted in the assignment, or in refusing that requested by appellee. The plaintiff does not allege in her petition the value of her son's services during his minority,

and hence her suit must be considered as brought wholly under the statute. In Winnt 2. International & G. N. R. Co, 74 Tex. 32, it was held that in such a case the mother cannot recover exemplary damages. Besides this, it appears from the evidence that no collision had occurred upon defendant's road for many years, and it is alleged in the petition that the defendant had run the water train in question without a conductor for the space of 12 months. It was shown that the road from Galveston bay to Duke was straight and level, and that there were but two regular trains to be passed in making the trip. If the train had run regularly for 12 months without a conductor and without accident, it was not gross negligence, on the occasion in question, to send it out in the same manner. The evidence did not warrant a recovery of exemplary damages, even if the statute had given such damages to the parent in such a case.

since accident.

During the trial, appellee offered to prove by a witness that, ever since the accident, defendant's water train had been accompanied by a conductor. The testimony, Precautions upon objections being made by defendant, was excluded by the court. The court did not err in its ruling. This court has held that, in a suit for damages claimed to result from the negligence of a railroad company, it is not competent for the plaintiff to show that after the accident the company have taken additional measures to prevent a recurrence of the casualty. Gulf, C. & S. F. R. Co. v. McGowan, 73 Tex. 355, and cases cited. For the errors pointed out the judgment is reversed, and the cause remanded.

Injury to Employe Working on Track by Passing Train-Duty of Company to Give Warning and Slack Speed. The plaintiff and others were lawfully, and with defendant's knowledge, engaged in grading for a new railway track along side of and parallel to defendant's original or main track. The ordinary duties of the work frequently required them to be in such close proximity to defendant's original track as to be liable to be struck by passing trains. It had been the uniform practice of those operating trains on the railroad to give these workmen warning of their approach by signals. Held, that the defendant owed the workmen the duty of active vigilance in giving them proper signals of the approach of trains, and that they had, under the circumstances, the right to rely on the continued performance of this duty, without the necessity, while engrossed in their work, of themselves keeping a constant lookout for approaching trains. The duty of defendant in this respect would be the same whether the workmen were in its employment or in that of its contractor. It would not ordinarily be the duty of those operating a train to stop it or slack its speed, provided they gave the proper signals. They would have a right to presume that the workmen would heed the warning, and remove from the place of danger. But if the trainmen saw that they did not hear the signals, and were making no effort to escape, it would then be their duty to stop the train, if there was still time to do so, before injuring them.

Erickson v. St. Paul & Duluth R. Co., Minnesota Sup. Ct., Oct. 18, 1889. Same-Contributory Negligence.-Chicago, St. L. & P. R. Co. v. Gross, Illinois Sup. Ct., May 14, 1890, was an action for personal injuries received by plaintiff's intestate while in the employ of defendant. While engaged in taking up old rails, and replacing them with new, he was struck by one of defendant's engines, causing injuries which, in a few days, resulted in his death. There was a dispute as to whether or not intestate had timely warning of the approach of the train. There was evidence, however, that the boss of the gang with which deceased was working, repeatedly informed the men that they should pay no attention to trains but go on with their work. Held, that it was proper to submit the question of contributory negligence to the jury.

Injury to Employe Coupling Cars-Presumption of Negligence against Company. In Western & A. R. Co. v. Vandiver, Georgia Sup. Ct., May 7, 1890, the plaintiff was a brakeman on a freight train, which, on the day of the accident, was behind time; and there being some switching to do at a station, plaintiff was ordered by the conductor to hurry up about the coupling, and while attempting to make a coupling, the engineer backed up rapidly and the plaintiff was injured. Held, that there was no presumption of negligence against the company, unless the plaintiff proved that he was without fault.

Injury to Car Inspector-Protection While Inspecting Wheels-Evidence. -In Howard v. Savannah, F. & W. R. Co., Georgia Sup. Ct., March 21, 1890, it was held that evidence as to what a car inspector's belief or understanding was in regard to the protection he would receive from injury while inspecting the wheels of cars, was not admissible in an action for injuries received while in such employment.

Injury to Car Repairer While at Work-Negligent Shunting of Cars.-In Murphy v. New York Central & Hudson R. R. Co., 118 N. Y. 527, the action was for personal injuries received by plaintiff while exercising his employment as a car repairer in the employ of the defendant company. At the time of the injury he was engaged in repairing a car on the side track. A short distance from the car he was repairing, stood another car. An unattended freight car was shunted against this car which was driven against the car upon which plaintiff was at work. The bumpers of the two cars came together and plaintiff's arm was crushed. At the time the accident happened, plaintiff's signal flag was properly posted, and could have been seen from the switch which entered the track where he was at work. Held, that the question of the defendant's negligence, was one of fact for the jury. Held, also, that the fact that the plaintiff had hold of the bumper with one hand, so as to support himself while working with the other, was not negligence as a matter of law, he having a right to suppose that his signal flag would be regarded. Held, also, that plaintiff's failure to set the brakes on either of the two cars on the sidetrack did not necessarily constitute negligence, it being plaintiff's duty to attend switches and not to set brakes.

Injury to Switchman Jolted from Train-Action Within Line of Duty-Contributory Negligence Question for Jury.-In Hudson v. Georgia Pacific R. Co., Georgia Sup. Ct., April 14, 1890, it appeared that the plaintiff had been in the employ of the defendant as a flagman for the period of four months. When the train was in motion, his place was in the cab with the conductor, and it was customary for one to sit on each side thereof. The door of the car opened on the side like box cars, and the signals to the engineer were given therefrom while leaning out far enough to give the signal, at the same time holding on to the door to prevent falling. The car was not provided with irons to hold by. When approaching a town the engineer was accustomed to give a station signal with a whistle, whereupon the signal

from the conductor's cab to stop or pass the town would be given, which the rules required him to answer with his whistle, thus permitting the person signaling to regain a place of safety before the change of speed of the the train. When, from the shape of the track, the signal could not be seen from the conductor's side of the cab, the plaintiff was accustomed to give it by his directions, although not his duty to do so. On the occasion of the accident the signal was to be given from his side of the car, and the plaintiff signaled to pass the town, without waiting for directions to do so. The engineer without answering the signal, gave the train a jerk, which threw plaintiff from the car upon the trestle, causing the injuries sued for. It was the custom in approaching and crossing this trestle to slow up, but on this occasion the speed was increased while on the trestle At the conclusion of plaintiff's evidence, a non-suit was entered, on the ground that it did not appear that plaintiff was acting in the line of his duty, when injured, and that he was assuming the authority of the conductor. Held, that the court erred in awarding a non-suit; it should have submitted to the jury the question whether the plaintiff was acting in the line of his duty, or whether he was assuming to act in the capacity of the conductor, and whether he was guilty of contributory negligence.

Injury to Employe Cleaning Out Bin in Grain Elevator-Contributory Negligence. In McGovern v. Central Vermont R. Co., New York Court of Appeals, Oct. 7, 1890, the action was brought to recover damages for the death of plaintiff's intestate, who was a laborer in the employ of defendant, and was killed while engaged in cleaning out a bin containing grain. It appeared that the grain in the bins sometimes became heated and sticky, and large masses adhered to the sides. Trap doors at the bottom furnished an entrance to the bins when the grain had ceased to run from the spout. It was obvious that entering the bins in this way was accompanied with some danger. When a person desired to enter the bin, he might ascertain its condition by letting down a lantern from above. The defendant had no regulation as to this matter, though this was sometimes done. Plaintiff's intestate had worked many years in the elevator. On the day of the accident, after the grain had ceased running from the spout at the bottom of the bin, the superintendent opened the trap door, placed a ladder to it and sent for deceased. The deceased entered the bin, but being unable to see or reach any grain, started to come out, when a mass of grain fell from above and buried him. Held, that the question of negligence and contributory negligence should have been left to the jury. PECKHAM, J., dissenting.

Injury to Employe from Kick of Horse-Servant's Ignorance of Horse's Nature--Pleading.-In Donahue v. Enterprise R. Co., South Carolina Sup. Ct., March 18, 1890, it appeared that plaintiff's intestate was at the time of his death in the employ of the defendant as a driver on one of its street cars. He came to his death from a kick of the horse which he was driving in the course of his employment. It was held, that the plaintiff, in an action to recover damages for such death, need not allege that the intestate was ignorant of the vicious and unruly nature of the horse, his knowlege of such facts being a matter of defense.

Injury to Minor Employe-Evidence of Plaintiff's Capacity and Experience. -In Gulf, C. & S. F. R. Co. v. Jones, Texas Sup. Ct., Feb. 28, 1890, the action was brought for injuries received by plaintiff while in defendant's employ as a brakeman. At the time of the accident he was but sixteen years of age, was of average intelligence, and was employed without the consent of his parent. Held, that the defendant must show that the plaintiff possessed a capacity and experience to do the work in safety, although there was no evidence to show that the negligence of plaintiff or his fellow servants brought about the injury.