From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Hale, Allen & Dohoney, for appellee.

FISHER, C. J. The questions of fact and law raised in this case are substantially the same as those passed upon in the case of Gulf, Colorado & Santa Fé Railway Company v. F. Harbison (recently decided by this court) 88 9. W. 452, and in which the ruling of this court is against the propositions urged by the appellant.

We find no error in the record, and the judgment is affirmed. Affirmed.

GULF, C. & S. F. RY. CO. v. OATES. (Court of Civil Appeals of Texas. June 28, 1905.)

Appeal from Lamar County Court; John W. Love, Judge.

Action by A. T. Oates against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Hale, Allen & Dohoney, for appellee.

KEY, J. This case is quite similar to Railway v. Harbison, 88 S. W. 452, and Railway v. Wetherly, 88 S. W. 456, recently decided by this court; and, for the reasons stated in the opinion in the Harbison Case, the judgment in this case is affirmed. Affirmed.

EL PASO & S. W. RY. CO. v. VIZARD.* (Court of Civil Appeals of Texas. May 24, 1905.)

1. PERSONAL INJURIES-PLEADING.

A petition alleging that plaintiff fell with great force and struck his back and spine on some ties, by reason of which he was seriously and permanently cut, bruised, and wounded, internally and externally, on his back, spine, legs, hips, and head; that his kidneys and bladder. together with the nerves and muscles controlling the same, were seriously injured and affected; that he is a cripple for life, is confined to his bed, and unable to walk without assistance; and that he believes that his injuries are serious and permanent-states the damages which plaintiff has sustained with sufficient particularity.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 410.]

2. DEPOSITIONS-NOTICE-SUFFICIENCY.

The copy of the notice and interrogatories, required by Rev. St. 1895, art. 2274, to be served on the adverse party or his attorney of record before the issuance of a commission to take depositions need not be certified by the clerk of the district court who makes the same. 3. INJURY TO SERVANT-INSPECTION BY MASTER.

Rev. St. Ariz. 1901, pars. 2533, 2767, declaring the common law to be in force in that

*Rehearing denied June 14, 1905, and application for writ of error dismissed by Supreme Court for want of jurisdiction.

territory, and making corporations liable for injuries to servants, caused by the negligence of fellow servants of whose incompetency or negligence the corporation has had previous notice, do not change the common-law rule requiring the master to inspect and examine instrumentalities furnished by him, and making him responsible for the negligence of an inspector to whom he intrusts the duty of making inspection.

4. SAME NEGLIGENCE-QUESTION FOR JURY. Whether an inspector was negligent in inspecting cars, or whether he negligently failed to make an inspection, are questions of fact for the jury, notwithstanding testimony of the inspector that he made a proper inspection. 5. SAME-INSTRUCTIONS.

In an action against a railroad for injuries to a brakeman who fell from the side of a car because of the giving away of a defective hand railing, a charge to find for defendant if plaintiff attempted to board the car and ride at some place other than the stirrup and grabiron provided for that purpose, and if his failure to do so was negligence, and such negligence caused or contributed to his injury, or if he was negligent in the manner in which he attempted to get on the car, and such negligence contributed to his injury, or if he attempted to catch the railing while the car was in motion, and attempted to hold himself by the rear end thereof and by placing his foot on some part of the truck, and in so doing was guilty of negligence, and such negligence contributed to his injury, was confusing and misleading, in that plaintiff's actions in the particulars referred to, if negligent, necessarily contributed to his injury, and whether they did so contribute or not should not have been submitted to the jury as a question of fact.

6. SAME-INSPECTION BY SERVANT.

A railroad brakeman is under no duty to inspect a car on which he is working, in order to ascertain whether parts thereof, such as hand rails, are unsafe for his use.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 710, 713, 714, 718.]

7. SAME ASSUMPTION OF RISK.

The mere knowledge by a servant of a danger does not charge him with assumption of the risk thereof, unless he understood and appreciated such risk.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-581.] 8. SAME QUESTION FOR JURY.

Whether a railroad fulfilled its duty of inspecting cars by properly inspecting them on the day before injury to a brakeman was a question of fact, where the car in question had been moved from one place to another between the inspection and the injury, and it was shown that nuts on the car might become loose in running that distance.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by H. D. Vizard against the El Paso & Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is a suit by appellee to recover damages for personal injuries alleged to have been caused by the negligence of appellant while he was engaged in its employ as a brakeman on its road at Osborne, Ariz. He alleged that, while in the discharge of the duties of his employment, he fell from the side of a water car by reason of the negligence of defendant in maintaining thereon

a defective hand railing which gave way in his effort to board and hold on thereby the car in question. After interposing eight special exceptions, which will be noticed in our opinion, the defendant answered by a general denial and pleas of contributory negligence and assumed risk. The exceptions were overruled, and the trial of the case before a jury resulted in a verdict in favor of the plaintiff for $9,000. From the judgment entered on the verdict, this appeal is prosecuted.

Patterson, Buckler & Woodson, for appellant. Patterson & Wallace, for appellee.

NEILL, J. (after stating the facts). The first eight assignments of error are directed against the action of the court in not sustaining defendant's special exceptions to plaintiff's petition. The substance of these exceptions is that the petition does not describe the physical injuries and suffering of plaintiff therefrom with sufficient particularity.

In his original petition his injuries and the effect thereof are thus described: "Plaintiff avers and charges that when said hand rail or hand hold pulled loose and gave way he was thrown and fell with great force and violence, and struck his back and spine on the ends of some ties and cribbing, which was built near the tracks at this place, on which was situated a water tank; that on account of the fact of striking on the ends of some ties he was then thrown and fell to the ground, and by reason of said fall, together with striking his back on the sharp end of some railroad ties and on the ground and other hard substances, he was greatly, seriously, and permanently injured in his back, spine, legs, head, and internal organs, and rendered a cripple for life; that by reason of the aforesaid injuries he is now confined to his bed, unable to walk, and he has reason to believe, and does believe, and here alleges, that said injuries are permanent; that on account of the aforesaid injuries he has suffered and will continue to suffer during the remainder of his life great bodily pain and mental anguish, has paid out and incurred large sums of money for medicine and medical attention, which sums were reasonable and necessary, and that his ability to earn a living, on account of the aforesaid injuries, has been greatly impaired, and will so continue impaired during the remainder of his life."

And in his trial amendment he further describes them as follows: "That when said hand rail or hand hold pulled loose and gave way he was thrown and fell with great force and violence, and struck his back and spine on the end of some ties or cribbing, built and maintained by defendant near the track, at the place where said accident occurred; that when he fell and was thrown from said car, and after his back and spine had come in contact with the aforesaid ties or

cribbing, he then was thrown and fell to the ground, and by reason of his fall and great weight, together with striking his back and spine on the ends of said ties or cribbing and other hard substance as he fell to the ground, he was seriously and permanently cut, bruised, and wounded, both internally and externally, in and on his back, spine, legs, hips, and head; that also in said fall, and by reason of the bruises, injuries, and wounds received on his back, spine, and legs, his kidneys and bladder, together with the nerves and muscles by which the same are controlled, were seriously and permanently injured and affected; a more specific allegation of his injuries to his back, spine, legs, head, hips, kidneys, and bladder, plaintiff is now unable to specify, other than that by reason of said injuries received at said time he is now a cripple for life; that on account of said injuries, and more especially the injuries to his back, spine, legs, bladder, hips, and kidneys, he is now confined to his bed, unable to walk without assistance; that he has reason to believe, and does believe, and here alleges, that the aforesaid injuries to his back, spine, legs, hips, kidneys, and bladder are serious and permanent, and will continue serious and permanent the remainder of his life."

We think the allegations thus recited (especially those in the trial amendment) conform to the rule in cases of this character, which requires the plaintiff to state the particular damage which he has sustained with sufficient particularity to inform the defendant of the facts upon which he intends to rely for recovery. This is all that could be required of plaintiff in this case. T. & P. Ry. Co. v. Curry, 64 Tex. 87; Campbell v. Cook, 86 Tex. 632, 26 S. W. 486, 40 Am. St. Rep. 878; Southern Pac. Co. v. Martin (Tex. Sup.) 83 S. W. 676.

It is to be observed that there is no contention on the part of defendant, as was in the case last cited, that the allegations were not sufficiently specific to authorize the introduction of all the evidence offered by plaintiff to prove them; but the complaint is as to the sufficiency of the petition as against the exceptions urged. The allegations described, if possible, with more minutiæ plaintiff's physical injuries and consequent sufferings than is done in the case of Southern Pacific Co. v. Martin, supra. And in that case the Supreme Court remarked that "the petition entered with a remarkable particularity into the statement of the various injuries which the plaintiff claimed to have received in the accident, which were sufficient in number and character to justify, if true, the statement that he was 'bruised and lacerated from head to foot." How ever, notwithstanding the minutia with which Martin's injuries were described in his petition, the court held that evidence of a certain injury, not eo nomine mentioned in the petition, was erroneously admitted, and

for that reason, not because of any defect in the petition, reversed the judgment rendered in his favor. Without pausing to criticise or comment upon such holding of the Supreme Court in that case, it may be, in view of another trial, proper to suggest that, while we believe every syllable of evidence introduced in the instant case by plaintiff as to his injuries was authorized by his pleadings, it might be well for plaintiff by an amendment to allege and describe with as much minutiæ as possible the injury to his sciatic nerve, evidence of which was introduced upon the trial.

The defendant moved to quash the depositions of the witness R. A. Eubank, taken by plaintiff, upon the ground that the commission was issued without any legal return showing the services of notice to take such depositions. It appears from the record that the plaintiff filed with the clerk of the district court, in which this case was pending, notice of his intention to apply for a commission to take the answers of the witness Eubank to interrogatories attached to said notice, in compliance with the provisions of article 2274, Rev. St. 1895; that upon the day such notice and interrogatories were filed the clerk of the court made copies thereof and issued his precept, and placed it, together with said copies, in the hands of the sheriff, requiring him to serve the same upon the defendant or its attorney of record, as required by the article referred to; and that such copies of the notice and interrogatories were served by the sheriff upon the defendant as required by law, by delivering such copies, together with a true copy of the precept, to its local agent in El Paso county. The real objection urged by defendant in its motion to quash the depositions is that the copy of the notice of plaintiff's intention to apply for a commission to take the answers of the witnesses to the interrogatories attached was not certified to by the clerk of the district court who made such copy, as well as the copy of the interrogatories, and delivered the same with the precept to the sheriff for service. There is no force in this objection, for the law does not require that the copy of such notice served on the adverse party should be certified to by the clerk. Service of a copy was all that was required, and there is no contention on the part of defendant that it was not served with a true copy thereof, as is shown by the sheriff's return on the precept. Therefore the court did not err in overruling defendant's motion to quash the depositions.

As we will reverse the judgment on other assignments, it will be unnecessary, if not improper, in view of another trial, to discuss the twelfth assignment of error, which complains of the court's refusing to grant defendant's motion for a new trial upon the ground that the verdict is excessive.

To understand the next assignments, and what we shall say in disposing of them, it

will be necessary to briefly state some of the evidence pertinent to them. It will be observed from the statement of the nature of the case that the accident from which plaintiff claims he was injured occurred at Osborne, Ariz. On the day of its occurrence he was a brakeman on a freight train, which picked up a water car on a side track at that place. It was an ordinary flat car with a large metallic tank, such as is ordinarily seen and used on railroads, securely fastened thereon. On each side of the car were seven wooden standards about three feet long, through which were bored holes about six inches from the top ends, through which an iron rod about three-fourths of an inch in diameter extended from one end of the car to the other. The distance from this rod from the ground was about seven feet. The rod was fastened at each end on the outside of the standards by iron nuts screwed thereon. The evidence tends to show that the nut of the end of the rod at the southwest corner of the car, as it stood upon the track at the time of the accident, was off. There is a conflict in the testimony as to the office or use of this rod; some of the witnesses testifying that its purpose was to enable trainmen or brakemen to mount and hold onto the car, and that it was ordinarily used for such purpose, and, when in proper fix, it was reasonably safe for such use; others testified that it was intended for no such purpose or use, and that such use would be fraught with exceeding danger, and its only office was to furnish a hand hold for trainmen in passing from one car to another when the train was in motion. This car, as all water cars on defendant's road, had a stirrup on the southeast corner, as it then stood on the track, and one on the northwest corner diagonally opposite. The stirrup extended down from a foot to 16 inches from the platform at the corner, and at the right end of each corner mentioned there was a grab-iron on the end of the car just to the right of the stirrup, and one also on the standard just to the left of the stirrup. There was testimony to the effect that the proper and usual way for a brakeman or trainman in getting on the car was to catch hold of the grab-iron and put his foot in the stirrup so as to hold himself on. And there was testimony to the effect that plaintiff should have pursued this method of getting on the car. But, according to his testimony, after the water car was picked up, and as it passed him moving easterly, he caught hold of the rod before mentioned at the southwest corner and placed his foot on the journal, which is a part of the truck, and, just as he pulled himself up, the rod pulled loose from the standard, and he was thrown, and fell backward on the end of some ties or cribbing. Defendant's car inspector testified that, on the afternoon of the day before the accident, he inspected the car in question at Douglas, and put a new

any, and that his failure so to do was negligence on his part, and that such negligence, if any, caused or contributed to cause his injury, then and in that event your verdict should be for the defendant. If you believe from the evidence that the plaintiff attempted to get aboard or catch upon the side of the said water car while the same was moving, and that he was thrown or fell to the ground and was injured, but further believe from the evidence that in attempting to catch upon the side or get aboard of said car in the place or in the manner he attempted so to do, if he so did, that it was negligence on his part, and that such negligence, if any, proximately contributed to cause his injury, if any, then and in that event your verdict must be for the defendant. If you believe from the evidence that the plaintiff could have caught hold of the engine mentioned in the evidence, or either of the box cars behind same, or the right hand of the first corner of the water car, as the same approached him, or the right hand of the corner of the rear box car as the same approached him, and that a person of ordinary prudence, so situated as he was, would have so gotten a position upon the cars mentioned in the evidence, and that a person of ordinary prudence would not have attempted, as the plaintiff did, if he did, to catch the railing of the rear end of the water car while the same was in motion, and attempted at the same time to hold himself by the use of the rear end of said hand rail, and by placing his foot upon the journal box or some other part of the truck, and that the plaintiff in so doing was guilty of negligence, and that such negligence, if any, proximately caused or contributed to cause his injury, then and in that event your verdict should be for the defendant."

The objection urged by appellant to this part of the charge is that, if the plaintiff was guilty of negligence in the matters submitted, such negligence necessarily, as is shown by the undisputed evidence, proximately contributed to his injuries, and the submission to the finding of the jury whether such negligence of plaintiff, if he was guilty of it, proximately contributed to his injury, was confusing and misleading, and calculated to destroy the effect of the court's charge as to contributory negligence, and submitted an issue not made by the evidence, authorizing the jury to say arbitrarily that plaintiff should not be held to the consequences of his Own negligence. In view of the unbroken line of the decisions of the appellate courts of this state, we deem it unnecessary to discuss the assignments of error which raise this objection to the portion of the charge just quoted, it being sufficient to refer to the opinions to demonstrate that the objection is well taken. T. & P. Ry. Co. v. McCoy, 90 Tex. 265, 38 S. W. 36; G., C. & S. F. Ry. Co. v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper

v. I. & G. N. Ry. Co., 90 Tex. 634, 40 S. W. 386; Ebert v. G., C. & S. F. Ry. (Tex. Civ. App.) 49 S. W. 1105; G., U. & S. F. Ry. v. Bryant (Tex. Civ. App.) 66 S. W. 808; G. H. & S. A. Ry. v. Hubbard (Tex. Civ. App.) 70 S. W. 112; G., C. & S. F. Ry. v. Hill (Tex. Civ. App.) 70 S. W. 103; G., C. & S. F. Ry. v. Powell (Tex. Civ. App.) 84 S. W. 671.

The court did not error in refusing to instruct the jury, at defendant's request, that it was plaintiff's duty to assist the conductor in inspecting the water car, and that if by the exercise of ordinary care the plaintiff would have discovered the unsafe condition of the end of the hand rail and that the nut was off, and that if through his failure to inspect and examine the car before he attempted to use the hand rail he was injured, to find for the defendant. The following quotation from Peck v. Peck, 87 S. W. 248, 12 Tex. Ct. Rep. 785, demonstrates the fallacy in the requested charge: "In Railway v. Hannig, 91 Tex. 350, 43 S. W. 508, for instance, a charge was given, in substance, that plaintiff could not recover for the master's negligence 'if he could have known these facts by the use of ordinary care,' which might have meant to the jury that plaintiff was required to make some inquiry to learn of the danger which the master's negligence had created. In commenting on this charge, this court used this language: 'We understand the law to be that, when the servant enters the employment of the master, he has the right to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work are reasonably safe, and that the business is conducted in a reasonably safe manner. He is not required to use ordinary care to see whether this has been done or not. He does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or, in the ordinary discharge of his own duty, must necessarily have acquired the knowledge. (Citing Bonnet v. Railway, 89 Tex. 72, 33 S. W. 334; Railway v. Bingle, 91 Tex. 287, 42 S. W. 971.)' If this needed any elaboration, it was furnished by the reference to the cases cited in that opinion, from which is seen that a servant must be treated as having 'necessarily acquired knowledge' of those dangers, although arising from the negligence of the master, which were obvious and open to him in the doing of his work; which, in other words, ordinarily prudent persons would have learned under like circumstances, in the rendering same service." The principle is well settled that a master who seeks to escape liability to his servant on the ground that he assumed the risk as a part of his contract must lay the foundation for the defense by proving that he understood the risk, and that the mere knowledge of a danger will not preclude him from recovering unless he appreciated the risk. Southern