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the minor was ignorant, and in attempting to perform the same he struck the driftpin with the hammer in the usual way, when a scale or particle flew off and struck him in the eye, destroying the sight, and greatly impaired the other eye. That the said son was without knowledge of the dangers attending the striking together of such metals, and of the probability of scales and particles flying therefrom, all of which was known to appellee, and it failed to give any warning to said son, or to instruct him how to avoid the danger. That it knew of his minority and inexperience. That the driftpin was defective, battered, and worn, and was an unsuitable tool with which to perform the work, which was known to appellee. That a driftpin is manufactured for that purpose, and, when in proper condition, is adapted to the use and purpose aforesaid, and is safe. That it is tempered to a high degree, and is very brittle, and, to protect the head against particles flying off when hit, the hammer is surrounded with a more malleable metal, and when in this condition it is safe, and no danger results from striking it with a hammer. That had said pin been surrounded with a more malleable or soft iron, as it should have been, or had the said pin been a proper and suitable pin, the particles would not have been thrown off, and the said S. D. Wood would not have received the injury that he did.

That, by

That the pin struck by the said son had no band or cap on the head of same, and at that time he did not know that one was necessary, but supposed the pin safe and well adapted to the work at the time he struck it. That its dangerous and defective condition was known to appellee. reason of negligence of appellee, appellant was damaged $597.10. The appellee answered by general denial, assumed risk, and contributory negligence. There was a trial by jury, resulting in a verdict and judgment for appellee, from which this appeal is prosecuted.

Appellant's first assignment of error complains of the following paragraph of the court's charge: "When the master employs a minor to perform work which is dangerous or hazardous to the person of such minor, it is the duty of the master or employer to explain to such minor the proper manner of performing such work, and also to explain to such minor the dangers and hazards to his person incident to the performance of such work, and how to avoid such dangers unless the dangers and risks incident to such work are patent and obvious to persons of like age and intelligence of such minor." It is contended that the duty to warn an inexperienced minor is not limited, as a matter of law, to only dangers which are not patent; that though the danger may be obvious and patent, yet the master should warn and instruct how to avoid it. The rule of law applicable to the question, we think, is clearly expressed by 88 S.W.-32

our Supreme Court in the case of the Texas & Pacific Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511. That was a suit to recover of the railway company damages for personal injuries alleged to have been inflicted upon a minor by the servants of John C. Brown, as receiver of the company's property, and in that case the court said: "The plaintiff being a minor, it was the duty of the receiver, through his agents, to instruct him as to the dangers of the employment. That was the primary obligation. But if the plaintiff at the time of his employment knew of the nature and extent of the danger, and his judgment was sufficiently mature to appreciate the risk, or if subsequently he became aware of the fact and extent of the danger, and had the discretion to properly weigh his liability to injury from it, the receiver became absolved from the responsibility arising from the failure to give the instruction. That he knew that there was some danger is not disputed; but whether, under all the facts, his discretion was sufficiently developed at the time of the injury, considering his knowledge and experience, to appreciate the extent of the risk, was not a question of law, but a question of fact, which was properly left to the determination of the jury." It is difficult to conceive how any person to whom the dangers and risks incident "to any given employment are" patent and obvious can fail to appreciate the risk, or properly weigh his liability to injury from it; but if it be conceded that the paragraph of the court's charge assailed is defective in that respect, still we think the error was cured, and all danger of injury to appellant by reason thereof averted, by a special charge given at the request of appellant, which reads as follows: "In connection with the main charge, you are further instructed that if you believe from the evidence that the driftpin used for knocking out the core from the bale of cotton had become out of repair and defective, and had become an improper and unsuitable pin to use for the purpose for which it was intended, and by reason of its condition was unsafe and dangerous, and that G. F. Warner, the defendant's superintendent, knew, or ought to have, by reasonable care, known, of the defective condition of said pin, if it was defective, and you further believe that S. D. Wood was acting within the scope of his employment when he struck said pin, and that particles were thereby caused to fly from said pin on account of its defective condition, going into the eye of said S. D. Wood, causing an injury, then plaintiff in this case would be entitled to recover, unless you further believe that S. D. Wood, considering his age and experience and all the other circumstances in the case, knew and appreciated the peril and danger of striking said pin when he did."

The court, in different paragraphs, charged the jury as follows:

"When the servant or employé has been supplied with a tool or instrument with which to perform his work by his master or employer, and such tool or implement is not reasonably safe for use by the servant or employé in performing the work assigned him, and it is obvious or patent to such servant that such tool or implement is not reasonably safe for use in his work, then it is the duty of the servant or employé to refrain from using such tool or implement; and if a servant or employé uses a tool or implement which he knows is not reasonably safe for use in his work, then he assumed the risk of injury from the use of such tool."

"The jury are instructed, if they believe and find from the evidence that the drift rod which S. D. Wood was using at the time he was injured (if he was) was then and there a reasonably safe instrument or tool for the use intended, then it would be the duty of the jury to find a verdict for the defendant, as the risk of S. D. Wood in that event would be assumed risk."

minor son, inexperienced, as appellee knew, was furnished a defective tool with which to perform certain work; that the performance of such work with such a tool was dangerous; and, without warning of the dangers incident thereto, appellant's son was directed to perform it. The defense was that the tool was not defective; that, if it was defective, such defect, together with the dangers and risks incident to its use in doing the work at which appellant's son was engaged when injured, was patent and obvious to one of his said son's age and discretion, the extent and nature of which he was fully capable of appreciating and understanding. There was evidence tending to the establishment of this defense, and we think the charges complained of authorized under the pleadings and testimony, and as applicable thereto state correct propositions of law. If, under the pleadings in this case, the tool was defective, and the performance of the work assigned appellant's son with such an implement was dangerous, and by reason of his youth and inexperience he was incapable of knowing and appreciating the nature and extent of the dangers and risks to which he was exposed in doing such work, and the same had not been explained to him, and the defective condition of said pin the efficient cause of the injury, a prima facie case authorizing a recovery by appellant was established. But, on the other hand, notwithstanding appellant's son's minority and inexperience, if the driftpin in question was reasonably safe, or if it was not reasonably safe for use, and the defect or condition rendering it unsafe was obvious or patent to ap

These charges are complained of and made the basis of appellant's second and seventh assignments of error respectively. Under the first-quoted paragraph, it is insisted that in case of an inexperienced minor it is not true, as a matter of law, that he assumes the risk even of an obvious danger; that the duty of the master is to warn of danger, the extent thereof, and how to avoid it. Under the second, the proposition is advanced that even though a tool may be safe and suitable, yet if the work be dangerous, the duty exists to warn the servant, and especially is this true when the servant is a minor, ignorant of the danger, and without experi-pellant's son, and, knowing that such instruence; that in such case the failure to warn may be negligence, regardless of the reasonable safety of the tool itself.

We are of the opinion that, in view of appellant's pleading, neither of these assignments is well taken. The appellant did not allege and seek to recover on the ground that the work being performed by his son when injured was, by reason of its nature and character, necessarily dangerous, without reference to whether or not the driftpin was defective; that if the driftpin had not been defective as alleged, yet by striking the same with the hammer scales would form thereon and fly therefrom; and that appellee was guilty of negligence in failing to inform appellant's son of those facts, and of the danger he might encounter in doing the work. On the contrary, it is alleged that the driftpin, "when in proper condition, is adapted to the use and purpose" intended; that had said pin been surrounded at its head with a more malleable or soft iron, as it should have been, or had the said pin been a proper and suitable pin, the particles would not have been thrown off, and the said S. D. Wood would not have received the injury that he did. Appellant's case as made by his pleadings, succinctly stated, is that his

ment was not reasonably safe for use in the work assigned him, and so knowing, he used it and was injured, we think, with such knowledge, and under the case made by the pleadings, he must be held to have assumed the attendant risk of such use.

We think there is no reversible error pointed out in that paragraph of the court's charge attacked by appellant's fifth assignment. There was no controversy as to many of the facts grouped in this paragraph of the charge, and the error in requiring the jury to find the existence of all of them before authorized to return a verdict in favor of appellant was harmless, and the jury could not have been misled thereby. That portion of the charge presenting conjunctively the propositions of negligence in furnishing appellant's son with a defective tool with which to do the work, and the failure to warn him of the dangers and risks incident to such work, was correct, as the case stood under the pleadings and proof. Appellant's contention that he was entitled to recover upon proof either that the driftpin was defective, or that appellee failed to warn his son, S. D. Wood, of the dangerous character of the work, cannot be sustained. As stated by counsel for appellee, appellant neither pleaded nor proved danger in

the work, disassociated from the alleged defective driftpin. The danger to be warned against was the use of such pin, and, of necessity, the language of the charge must be in the conjunctive; for if the driftpin was not defective there was no danger, according to the case made by the pleadings, against which to be warned.

Appellant assigns as error the following paragraphs of the court's charge, viz.:

"It is the duty of the servant to refrain from doing any part of the master's work which has not been assigned to him by the master or his agent, or contemplated within the scope of his employment by the master." "The jury are further instructed that, if they believe from the evidence that when S. D. Wood was injured (if he was) he was attempting to perform work for defendant which was not a part of his duties or work nor within the scope of his employment, then it would be the duty of the jury to find for the defendant upon the ground of assumed risk."

The objection urged to these charges is that the issue presented therein is not raised by the evidence. This objection is well taken, and requires a reversal of the judgment. The record fails to disclose any testimony that would authorize a finding that appellant's son, when injured, was attempting to perform work for appellee which was not a part of his duties or outside the scope of his employment. It has repeatedly been held reversible error to submit in a charge to the jury an issue not made by the evidence, unless it is clear that the jury were not misled thereby. Andrews v. Smithwick, 20 Tex. 111; Railway Co. v. Gilmore, 62 Tex. 391; Railway Co. v. Wisenor, 66 Tex. 674, 2 S. W. 667; Railway Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway Co. v. Rowland, 90 Tex. 365, 38 S. W. 756. The evidence did not conclusively show that appellant was not entitled to recover, and we think it cannot be said the charge was not misleading. The question was not only presented and submitted as an issue in the case in the paragraphs of the charge quoted, but a repetition of it is found in another paragraph thereof, and there is such apparent stress laid upon it by these instructions that there can be no doubt of its prejudicial effect upon the rights of appellant. In the case of Railway Co. v. Wisenor, supra, it is said: "A sound proposition of law upon a supposed state of facts which there is no evidence to support, when given in charge, is calculated to mislead the jury, and is reversible error."

Such assignments of error as have not been discussed do not, in our opinion, disclose any reversible error, or, if they do, such error is not likely to occur upon another trial.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

TEXAS CENT. RY. CO. v. MILLER et al. (Court of Civil Appeals of Texas. June 14,

1905.)

1. APPEAL-ASSIGNMENT OF ERROR.

A proposition under an assignment of error foreign to the assignment will not be considered on appeal.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2997-3000.] 2. TRIAL-INSTRUCTIONS-CONSTRUCTION AND EFFECT AS A WHOLE.

Error cannot be assigned on a portion of a paragraph in a charge severed from the preceding part of the paragraph, which, when read as a whole, correctly states the law.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3013; vol. 46, Cent. Dig. Trial, §§ 703-708.j

3. CARRIAGE OF LIVE STOCK-DAMAGES DURING TRANSPORTATION-INSTRUCTIONS-OMISSIONS-REQUESTS TO SUPPLY.

An instruction in an action against a carrier for damages to a shipment of cattle alleged by the shipper to have been made under a verbal contract, and alleged by the carrier to have been made under a written contract, that unless there was an agreement as to rates of freight charges before the cars were placed and loaded plaintiff could not recover anything because of such charges, was correct as far as it went, and if it did not go far enough, in that it failed to state that if the oral contract was superseded by the alleged written one, plaintiff would not be entitled to recover anything by reason of the oral contract, defendant should have asked a special charge supplying the omission. 4. TRIAL-INSTRUCTIONS-WITHDRAWING EV

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Where, in an action against a carrier for damages to a shipment of cattle, alleged by the shipper to have been made under an oral contract and by the carrier to have been made under a subsequent written contract, plaintiff showed facts as to the written contract which defeated it as a contract, a charge that the oral contract was not in force was properly refused as being on the weight of evidence. 6. SAME INITIAL CARRIER-LIABILITY UNDER THROUGH CONTRACT.

A carrier contracting to deliver a shipment of cattle at a place designated within a certain time is liable to the shipper for damages on its own or connecting carrier's lines.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 950, 951.] 7. SAME-MEASURE OF DAMAGES.

A carrier failing to deliver a shipment of cattle within the time agreed on is liable to the shipper for the damages sustained by his failure to receive the market value of the cattle, occasioned by the breach of the carrier's agreement, and in determining such damages the shrinkage of the cattle occasioned by the carrier's failure to deliver within the agreed time is to be considered.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 920-922, 963, 964.] 8. EVIDENCE-KNOWLEDGE OF WITNESS.

It is not error to permit a witness to testify from his own knowledge as to what the freight rates between two points are, where he testifies that he knows it because he has paid it a number of times.

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Where the statements under assignments of error relating to the admissibility of testimony do not show what objections to the testimony were urged, the assignments will not be considered.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3010-3012.] 10. CARRIAGE OF LIVE STOCK-LIABILITY OF INITIAL CARRIER-PROOF OF FREIGHT CHARGES-ADMISSIBILITY OF EVIDENCE.

In an action against an initial carrier for damages to a shipment of cattle the receipts from the connecting carrier to the shipper's consignee showing the freight paid are admissible as showing the freight charges.

Appeal from Eastland County Court; S. A. Bryant, Judge.

Action by P. J. Miller and another against the Texas Central Railway Company and another. From a judgment for plaintiffs against the Texas Central Railway Company, it appeals. Affirmed.

Earl Conner and Clark & Bolinger, for appellant. D. G. Hunt and J. R. Stubblefield, for appellees.

NEILL, J. The appellee P. J. Miller sued appellant and the Missouri, Kansas & Texas Railway Company to recover damages to a shipment of cattle alleged to have been made under a verbal contract from Mathews Switch to Ft. Worth, Tex., via Waco. The appellant and the Missouri, Kansas & Texas Railway Company answered, denying the alleged verbal contract, and pleaded specially that the shipment was made under a written contract limiting each's liability to its own line of railway. The appellant also impleaded the Missouri, Kansas & Texas Railway Company, which, it alleged, received the cattle in good order from appellant at Waco for transportation to their destination, and that, if they were damaged, such damages were occasioned by said railway; and asked that, in event judgment should be rendered against appellant, it have judgment over against the Missouri, Kansas & Texas Railway Company for a like amount. The case was tried before a jury, and the trial resulted in a judgment in favor of Miller for $200, and also in favor of the Missouri, Kansas & Texas Railway Company.

Conclusions of Fact.

The evidence is reasonably sufficient to show that on the 24th day of August, 1903, the appellant, for itself and the Missouri, Kansas & Texas Railway Company, through its duly authorized agent, verbally agreed with plaintiff to transport without delay 99 head of his cattle from Mathews Switch, Shackelford county, Tex., to Ft. Worth, Tarrant county, Tex., via Waco, and deliver the same to plaintiff's consignee, for the same rate of freight per car as the Texas Pacific Railway Company would charge from Abilene, Tex., to Ft. Worth, and that they should reach their destination at about the same

hour of the same day they would if loaded at Abilene and transported over the Texas & Pacific Railway; that plaintiff delivered said cattle to appellant in compliance with said verbal contract at Mathews Switch at 3 p. m. on August 25, 1903, and that appellant negligently delayed the transportation of said cattle to Waco, where they were delivered to the Missouri, Kansas & Texas Railway Company, which, on account of the negligent delay of appellant, never delivered them to appellee's consignee at Ft. Worth until 3 p. m. on August 26, 1903, which was too late for the cattle to be sold advantageously on the market that day; that, had it not been for such negligence of appellant, the cattle would have been delivered to appellee's consignee at Ft. Worth at between 6 or 8 o'clock on that morning, which would have been the time of their delivery had they been shipped from Abilene over the Texas & Pacific Railway Company's road; that by reason of such negligent delay the cattle were damaged in their market value and by shrinkage or loss of flesh in the sum of $200, which amount appellees lost on account of such negligence on the sale of his cattle at Ft. Worth.

Conclusions of Law.

1. The third assignment of error, which is the first insisted upon, complains of the first paragraph of the court's charge. We will not consider the first and second propositions under this assignment, because they are foreign to it. to say the best of it, is far-fetched. The portion of the paragraph of the charge, upon which the assignment is predicated, is detached from the preceding portion in order to give it an entirely different construction than from what would be given the paragraph as a whole. In other words, the detached portion, which is complained of, is dependent upon what precedes it for its true meaning. Severed, as it is, from its antecedent by the assignment of error, it is not proper to predicate error upon it. When the paragraph is considered as a whole, it correctly states the law upon the phase of the case which it presents.

The third proposition advanced,

2. The fifth assignment of error complains of the third paragraph of the court's charge. The proposition asserted under it is that "a charge is erroneous which authorizes a recovery against a railway company when the undisputed facts fail to show that any damage was sustained to the plaintiff while on the line of said railway, when said railway company has by written contract limited its liability to its own line." This proposition is based upon the false hypothesis that the undisputed facts fail to show that any damage was sustained to the cattle while on the line of appellant's railway. As shown by our conclusion of fact, the evidence does show damage to the cattle on appellant's line of railroad; and this disposes of the proposition. The second proposition under this as

signment is that the paragraph referred to "is erroneous in that it shifts the burden of proof upon the appellant to prove that there was no oral contract, when the burden of the case should rest upon the plaintiff to establish the oral contract by a preponderance of testimony." A charge must be taken and construed as a whole. When this is done, it is seen that the question as to whether or not the contract of shipment was oral was properly submitted to the jury by the preceding paragraph, and that the matters submitted in the paragraph complained of were only intended by the court to be considered by the jury, in the event they determined there was no verbal contract between the parties.

3. The next assignment of error complains of the sixth paragraph of the charge, which is as follows: "Unless you believe there was an agreement as to rates of freight charges to be paid before the cars were placed and loaded, the plaintiff would not be entitled to recover anything because of such charges." We cannot perceive how appellant was injured by this portion of the charge. It is good as far as it goes. If it does not go far enough, in that it fails to inform the jury that if, from the evidence, they believed the alleged oral contract was entirely superseded by the alleged written one plaintiff would not be entitled to recover anything by reason of the oral agreementif there were such an agreement-as to the freight charges, appellant should have asked a special charge supplying the omission.

4. Our conclusions of fact dispose of the tenth assignment of error adversely to appellant.

5. The court did not err in refusing to give appellant's special charge No. 2. To have given it would have been, in effect, to withdraw from the jury the question of shipment under the alleged oral contract, or rather to have excluded from the jury an essential element of such contract, which was appellant's undertaking by it to deliver the cattle in Ft. Worth early in the morning of August 26th. It was only in the event that the jury should find there was no oral contract, the special charge should have been given.

6. Special charge No. 7, the failure of which to give is made the subject of the seventeenth assignment of error, is upon the weight of evidence, in that it assumes the alleged oral contract was not in force, and that the rights of parties were to be determined by the alleged written contract. As to the written contract, plaintiff alleged facts and circumstances which would, under the decisions of this state, absolutely defeat it as a contract of shipment. Therefore, the court did not err in refusing to give such special charge.

7. For the same reason the court did not err in giving the tenth special charge requested by appellant. If the facts and circumstances alleged were such as to defeat the

alleged written contract, then the question of damages rests upon appellant's violating the oral one, and the written one has nothing to do with it. Under the oral contract there was no limitation of the damages to appellant's own line of railroad. Under it appel. lant contracted that they should be delivered at Ft. Worth within a certain time; and whatever damages were occasioned plaintiff by its failure to perform this contract it was liable to plaintiff for, whether it occurred on its own line or elsewhere.

8. As we have before intimated, the liability of appellant under the oral contract was not limited to such damages as occurred by reason of its negligence on its own line of railway from Mathews Switch to Waco. Hence the court did not err in refusing to instruct the jury, at appellant's request, if they believed from the evidence that the defendant Texas Central Railway Company used that degree of care, caution, and prudence as a reasonably careful, cautious, and prudent man would have exercised under like or similar circumstances in handling and transporting plaintiff's cattle from Mathews Switch to Waco, Tex., and with ordinary care, to return a verdict in its favor.

9. The nineteenth assignment of error, which complains that the court nowhere in its charge defined negligence, cannot be sustained; for it is shown by the supplemental transcript that the court defined negligence in a special charge prepared and given at the instance of appellant.

10. The same proposition is advanced under the twentieth assignment of error as under the seventeenth, and it is likewise disposed of.

11. The substance of special charges Nos. 16 and 19, the refusal of which to give is made the subject of the 22d and 23d assignments of error, was given by the court in special charge No. 15 (found in the supplemental transcript), and correctly states the rule as to the measure of damages.

12. The propositions made under the assignment which complains of the court's giving special charge No. 2 at the instance of plaintiff cannot be sustained, for such special charge is not merely a repetition of the first paragraph of the court's main charge. If it was found that the appellant agreed to ship and deliver the cattle within the time alleged by plaintiff, then the undisputed evidence shows that it breached the agreement. From which it follows that defendant was liable to plaintiff as damages on account of his failure to receive the market value of the cattle, occasioned by the breach of such agreement. And in determining such damages the shrinkage of the cattle occasioned by appellant's failure to deliver them within the time agreed upon was a matter to be considered by the jury. The evidence is undisputed that plaintiff received less than the market value of his cattle, and hence the court did not err in assuming such fact as proven in its charge

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