to the motorman of an approaching car to stop the car, and such signal is seen by the motorman, and the car halted, an acceptance of the offer to become a passenger will be implied from the act of the motorman in stopping the car, and such person will be regarded as a passenger while he is in the act of getting upon the car. If in such case the person desiring to become a passenger attempts to board the car before it comes to a full stop, he is not necessarily guilty of contributory negligence; and if the speed of the car was slackened to such an extent as to lead him to believe that it was being stopped to allow him to get on, and a person of ordinary care would have so believed, and have attempted to get upon the car, he should be regarded as a passenger while making such attempt.

en.

Instead of giving any sign that he would not be taken, the speed of the car was slackened, so that it was moving slowly when he attempted to get on. Having received the signal, and slowed up in a manner to invite the plaintiff to get on, it was a clear act of negligence in the driver or person in charge not to observe the plaintiff, if he did not observe him, and, while he was getting on the car, in a manner in which the defendant usually received such passengers, to cause the car to be 'jerked' forward, as the jury found."

The view of the law above expressed finds support in the following authorities: Maxey v. St. Ry. Co. (Mo. App.) 68 S. W. 1064; Maguire v. St. Ry. Co. (Mo. App.) 78 S. W. 838; Pfeffer v. St. Ry. Co. (Super. Buff.) 24 N. Y. Supp. 490; St. Ry. Co. v. Spahr (Ind. App.) 33 N. E. 446; St. Ry. Co. v. Duggan (Ill. App.) 4 Am. Elect. Cas. 409; Corlin v. St. Ry. Co. (Mass.) 27 N. E. 1000.

sengers. Under such circumstances, the carrier would not be heard to say it had not given an implied acceptance of the offer to become a passenger.

It is a universal rule of law that one cannot disclaim responsibility for the consequences which usually and naturally result from his acts. If the appellant, in the exercise of ordinary care and prudence, could assume that the act of the motorman in checking the car was in response to his signal, and for the purpose of allowing him to board it, in acting upon such assumption and attempting to get on the car he had the right to rely upon the performance by the motorman of his duty to use that high degree of care to protect him from injury which the law requires a carrier to exercise for the safety of its passengers. In other words, if the act of the motorman, who had seen appellant's signal, reasonably induced appellant to believe that he was accepted as a passenger, while so believing he was entitled to protection as such.

The case of Conner v. St. Ry. Co., 105 Ind. 62, 4 N. E. 441, 55 Am. Rep. 177, announces the rule which we think should apply to all cases of this character. We quote from that opinion the following: "Being at the usual place where passengers were taken up, and having given notice to the person in charge of the car that he desired to be taken up, it was the plain duty of the driver or person in charge either to afford him reasonable opportunity to enter the car, or to notify the plaintiff, either by continuing the rapid pace, or in some other way, that he would not be tak

Appellee contends that, if it be conceded that the charge was erroneous in its statement of the degree of care required of the employés of the company, such error was harmless, because the undisputed evidence shows that they failed to use any care whatever to prevent the injury, and therefore, if the jury had found that appellant's statement of the circumstances under which he was in

favor, notwithstanding the error in the charge. We cannot agree with appellee in this contention. The jury might have conIcluded that the act of the motorman in increasing the speed of the car before appellant had succeeded in his attempt to board it was not, under the circumstances, a failure to use ordinary care, since that act could not be held negligence as a matter of law.

The second assignment of error presented complains of the following paragraph of the charge:

"If you believe from the preponderance of the evidence that it was usual and customary for defendant's cars to stop or slow up at the crossing of defendant's line over the tracks of the H. & T. C. R. Co., in Houston Heights, and believe that on August 29, 1903, plaintiff signaled or called to the motorman of defendant's car to stop at said crossing for the purpose of taking passage on said car, and was prepared to pay his fare, and that in pursuance of said signal the car was checked for the purpose of admitting plaintiff as a passenger, and that, while in slow motion, the plaintiff, with due care, took hold of the handhold on the trailer and stepped on the running board, and that when plaintiff was about to enter said trailer the servant or servants of defendant in charge of said car suddenly and violently and negligently started the car forward, and that by reason of such negligence of defendant's servants, if you find they were negligent, plaintiff was thrown from the car and injured, and believe said injury was caused by the negligence of defendant's servant or servants in charge

of the car, plaintiff is entitled to recover; and, if you so find the facts to be, you will find for plaintiff."

We think two of the objections urged to this charge are valid. As we have before stated, the purpose of the motorman in checking the car was immaterial, if by that act appellant, under all the circumstances, was justified in believing that he was invited to get on the car; and appellant's right of recovery ought not to have been made to depend on whether the motorman checked the car for the purpose of receiving him as a passenger. The charge is further objectionable in that it places upon appellant the burden of showing that he was not guilty of contributory negligence in attempting to board the car under the circumstances disclosed by the evidence. It is only in cases in which the allegations of the petition or the evidence of plaintiff show negligence on his part, as a matter of law, that the burden is upon him to refute the charge of contributory negligence, and appellant's evidence does not bring this case within that class. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Pares v. Ry. Co. (Tex. Civ. App.) 57 S. W. 301; St. John v. Ry. Co. (Tex. Civ. App.) 80 S. W. 235.

Appellee objects to our consideration of the foregoing assignments on the ground that, as presented in appellant's brief they are not in conformity with the requirements of rules 29 and 31 (67 S. W. xv, xvi). The specific objections urged to the assignments are that they are not numbered from first to last in their consecutive order, and that the statements thereunder contain no reference to the pages of the record by which they can be verified. The first assignment presented in the brief is assignment No. 3 and the next is assignment No. 6. Assignments Nos. 1, 2, 4, and 5 are not presented. It thus appears that while the assignments presented follow each other in numerical order, in the sense that the first numbered is first presented, they are not numbered consecutively, as required by the rule. The evident design and purpose of the rule is to avoid the confusion and loss of time which would often occur in considering a brief which treated the first assignment last, and the last first, or presented the assignments so out of their regular order as to require an unnecessary expenditure of time on the part of the court whenever it became necessary to revert to any particular assignment presented in the brief. The statements under these assignments contain no reference to the pages of the record for verification, but the statements are full, and appellee raises no question as to their accuracy. While this court has repeatedly held that a mere reference to the record for the statement supporting a proposition advanced under an assignment is not sufficient, and in such case the assignment will not be considered, it has never been held, so far as we are aware, that an assignment followed by a full

statement, the accuracy of which is not questioned, would not be considered because no reference was made to the record. These slight, technical violations of the rules, if objection was made at the proper time, would be sufficient ground to require the offending party to rebrief the case, but the court is not required to refuse to consider an assignment because of any technical violation of the rules. The primary purpose and object of the rules is to promote the dispensation of justice, and incidentally to aid in the dispatch of the business of the court by an orderly presentation of questions raised for determination, and any method of enforcing them which would defeat this primary purpose should not be adopted by the court. this view of our duty in the premises, we have decided that the assignments should be considered. We cannot understand, however, why able and experienced counsel familiar with the rules should fail to fully comply with them.

Under

We do not think it necessary to discuss the remaining assignments presented in the brief. If they show any error, it is not such as is likely to occur upon another trial.

Because of the errors in the charge before indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Where land of a lunatic on which he resided as head of a family was sold to pay debts, the question as to whether the purchaser acquired a good title is not controlled by the fact that the records in the guardianship proceeding failed to show that the property was adjudged a homestead, but depends on whether the property was in fact the homestead of the lunatic when it was ordered sold.

2. SAME-PROPERTY SUBJECT TO HOMESTEAD. A tenant in common is entitled to a homestead in the land to the extent, of his interest, not exceeding 200 acres; and, if the joint tract exceeds 200 acres, he may claim his interest in the entire tract as a homestead to the extent of 200 acres.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Homestead, §§ 121, 122.] 3. SAME-WAIVER OF EXEMPTION.

Where a person was the head of a family, residing on land owned by him jointly with others, cultivating it, and owned no other land when he was adjudged a lunatic and the land sold, the fact that the court required the guardian to place the land on the inventory, as required by Rev. St. 1895, art. 1965, and failed to set it aside as a homestead, as required by article 2046, did not have the effect of waiving the homestead exemption and making it liable for the debts of the estate.

4. SAME-SALE TO PAY DEBTS-TITLE OF PURCHASER.

Under Const. art. 16, § 50, protecting the homestead from forced sale for the payment of debts, the county court has no power to order *Writ of error denied by Supreme Court.

a sale of the homestead to pay the ordinary debts of the estate, and hence a purchaser under such an order acquired no title, though he had no knowledge that the property was homestead.

Error from District Court, Fannin County; Ben. H. Denton, Judge.

Action by J. W. Harris against J. P. Griffin and others. From a judgment for plaintiff, the defendant Henry M. Griffin, by his guardian ad litem, brings error. Reversed.

J. W. Donaldson, for plaintiff in error. Thurmond & Steger and Richard B. Semple, for defendants in error.

BOOKHOUT, J. This suit was instituted by J. W. Harris, against J. P. Griffin and others, to recover a one-sixteenth interest in 328 acres of land situated in Fannin county, and for partition. A trial before the court without the intervention of a jury resulted in a judgment for plaintiff for the land sued for, and a decree for partition, and appointing commissioners to partition the land. From this judgment Henry M. Griffin, by his guardian ad litem, prosecutes a writ of

error.

Conclusions of Fact.

Henry M. Griffin and Alice M. Griffin were married on November 14, 1900, and as the fruits of such marriage they have one child, about 3 years old. Henry M. Griffin inherited through his mother, Mary Jane Griffin, deceased, a one-sixteenth interest in the 328 acres of land described in the petition. After his marriage he and his wife moved upon this 328 acres and lived in a house situated thereon, and cultivated about 20 acres of the land the first year, and about 40 acres the second year, they so lived thereon. He had thereon his farming tools, plows, cultivators, and household and kitchen furniture. The house was not on the tract cultivated, but was on the 328 acres. The remainder of the land was owned, onehalf by J. P. Griffin, the father of Henry M., and the balance, seven-sixteenths, by his brothers and sisters. Henry M. Griffin, while so living upon the land, was by the proper authorities of Fannin county adjudged a lunatic on October 8, 1902, and sent to the State Lunatic Asylum at Austin, where he has since been, and is now, confined. His wife, Alice M. Griffin, was appointed guardian of the estate of Henry M. Griffin, and duly qualified as such.

On October 10, 1902, said guardian filed her first inventory and list of claims, which showed that said estate owned the following property, to wit: One horse, worth $25; one buggy, worth $50; one saw, worth $2; another saw, worth 50 cents; one square, worth 50 cents-said property alleged in said inventory to be the community property of said lunatic and his wife, Alice M. Griffin. Said list of claims consisted of che note for $320, dated July 17, 1902, bearing 8 per cent. per annum interest from

date; one note for $211.10, given oy W. S. Church, dated July 21, 1902, secured by chattel mortgage on crops; and $85.70 in money, being community property of Alice and Henry M. Griffin. On June 18, 1903, one C. L. Parr, alleging that he had an established claim against the estate of said lunatic, applied to the county court of Fannin county to require Alice M. Griffin, guardian of the estate of Henry M. Griffin, lunatic, to place on her inventory of said estate the one-fourteenth of said 328 acres, which interest said application stated that said Henry M. Griffin owned in said 328 acres. On July 2, 1903, Alice M. Griffin filed her answer to said application of C. L. Parr, and resisted such application, alleging that said interest of said Henry M. Griffin in said 328 acres was one-sixteenth thereof, that it was the homestead of herself and the minor child of herself and Henry M. Griffin, about two years old, and was their homestead when said lunatic was taken to the lunatic asylum. The county court sustained the application of C. L. Parr, and by its judgment rendered July 6, 1903, ordered said one-sixteenth of said 328 acres placed on said guardian's inventory. Said judgment was complied with by said guardian filing said additional inventory on July 8, 1903, which was approved by said court. On September 1, 1903, said guardian, Alice M. Griffin, applied to said county court for an order to sell said one-sixteenth of said 328 acres of land, stating that C. L. Parr held a judgment against said lunatic for $114.40, rendered by justice court of Precinct No. 8 of said Fannin county, with interest at 8 per cent. from April 6, 1903; that there were other debts owing by the estate; and that costs would be increased by creditors forcing such sale, unless the application was granted. On October 13, 1903, the court made an order directing the guardian to sell at public or private sale, as she might deem most advantageous to said estate, for cash, said one-sixteenth of said 328 acres.

On December 28, 1903, said guardian reported to said county court that she had sold said one-sixteenth of said 328 acres to J. W. Harris at private sale for $401 in cash, which sale was on the 7th day of January, 1904, confirmed by said county court, and deed was ordered made by said guardian to plaintiff for said one-sixteenth of said 328 acres, which she did on the 9th day of January. 1904.

Henry M. Griffin owned no land, except his interest in this 328 acres. The $401 paid by J. W. Harris for the land was its fair market value, and this money was paid by the guardian on debts owing by the lunatic, Henry M. Griffin, except a small sum still in possession of such guardian.

J. W. Harris, in purchasing the property from the guardian, acted in good faith. While he did not know that Henry M. Grif

Opinion.

The learned trial judge was of the opinion that, as the records of the county court did not show that the land was the homestead of the lunatic, the county court had jurisdiction to order the sale of said land, and that such sale and the confirmation thereof passed title to the purchaser. The county court records did not affirmatively show that the land was not the homestead of Henry M. Griffin. The question as to whether the purchaser, under the facts of this case, acquired a good title, is not controlled by the fact that the records in the guardianship proceedings failed to show that the property was the homestead of the lunatic. As we understand it, the test is, was the property the homestead, in fact, of the lunatic at the time it was ordered sold, and at the time the sale was confirmed? It is clear that Henry M. Griffin was entitled to a homestead in the land. It is held that a tenant in common is entitled to a homestead in land, owned jointly by himself and others, to the extent of his interest, not to exceed 200 acres. Clements v. Lacy, 51 Tex. 150.

It is further held that, where a tenant in common owns jointly with others a tract in excess of 200 acres, he is entitled to claim his interest in the entire tract as homestead to the extent of 200 acres. Jenkins v. Volz, 54 Tex. 636; Lewis v. Sellick, 69 Tex. 379, 7 S. W. 673.

Nor do we think it can be seriously contended that such interest was not at the time Henry M. Griffin was adjudged a lunatic, his homestead. He was the head of a family and lived on the land, and had cultivated 20 acres of the land for nearly 2 years. He owned no other land. He had his farming tools and implements thereon; also his kitchen and household furniture.

When it was sought to have the county court to require the guardian to inventory said land as part of the estate of the lunatic, she resisted, upon the ground that it was the homestead of herself and minor child. By the terms of the statute the guardian was bound to return a full inventory and appraisement of the property of the estate. Rev. St. 1895, art. 1965. And upon complaint in writing, by any one interested, setting forth that error has been made in the inventory, and pointing out such error, and citing the guardian to show cause why it should not be corrected, the court, upon hearing, was authorized to correct the same. Rev. St. 1895, art. 1976. The fact that the court ordered the guardian to correct her inventory by including the land therein did not adjudicate or determine that the property was not the homestead of the lunatic's fam

in the inventory, and the fact that it was homestead furnishes no good reason for not including it therein. That the court failed to perform its full duty and set aside this property as the homestead at the first term of court after the inventory and appraisement were filed, as required by the statute (Rev. St. 1895, art. 2046), did not have the effect of waiving the homestead exemption and making it liable for the debts of the estate. We think it clear under the facts the property was the homestead of Henry M. Griffin at the time he was adjudged a lunatic and when it was sold by the guardian. Parr v. Newby, 73 Tex. 468, 11 S. W. 490; Crockett v. Templeton, 65 Tex. 136.

The Constitution of the state (article 16, § 50) protects the homestead from forced sale for the payment of all debts. Under this prohibition of the Constitution, the county court is deprived of the jurisdiction or power to order a sale of the homestead to pay the ordinary debts of the estate. Yarboro v. Brewster, 38 Tex. 418; Hamblin v. Warnecke, 31 Tex. 91; McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71. The county court not having the power to order the sale, no title passed to the purchaser at a sale made in pursuance of such order. The order was a nullity, and it is immaterial whether the purchaser had knowledge of the fact that the property was the homestead or not. Having purchased under a void order, he took no title. Withers v. Patterson, 27 Tex. 500, 501, 86 Am. Dec. 643.

It follows from these remarks that the trial court erred in rendering judgment for J. W. Harris, defendant in error, and in not rendering judgment for the plaintiff in error, for an undivided one-sixteenth of the 328 acres of land. The judgment is reversed and here rendered for plaintiff in error, Henry N. Griffin, and his guardian ad litem, for a one-sixteenth interest in the 328 acres of land described in the petition. The decree of the district court for partition is not disturbed further than as stated above, but will be carried out by that court. The regular guardian is entitled to the possession and use of the land here recovered by plaintiff in

error.

Opinion on Rehearing.

Henry M. Griffin's interest inherited through his mother in the 328 acres of land was one-sixteenth, or 20% acres. The year he was adjudged a lunatic he was cultivating 40 acres of the 328 acres, an excess of 192 acres over the interest owned by him. For this excess he paid rent to his father. The records of the probate court in the matter of the guardianship of Henry M. Griffin showed that when the motion was made to require the guardian to inventory this land the guardian resisted, setting up that it was the homestead of herself and child. The estate of the lunatic, excluding the homestead

from the assets, is, and always has been, insolvent. When J. W. Harris purchased the property he knew that Henry M. Griffin lived upon the land with his family, and had his household and kitchen furniture, tools, and farming implements thereon, and that he owned no other homestead. J. W. Harris is the father of the guardian, Mrs. Griffin.

The statement in the opinion that "the county court records did not affirmatively show that the land was not the homestead of Henry M. Griffin" is liable to be misunderstood. By this we meant to say that the records did not show that the question of homestead vel non had been passed upon by that court. It is true the court ordered the guardian to inventory the property, but this did not affirmatively adjudge that it was not the homestead. The records did show that the guardian, at the time the motion to require it to be placed on the inventory was heard, claimed and pleaded that it was the homestead of herself and child. The record in this respect is similar to that passed upon in Hamblin v. Warnecke, 31 Tex. 94, and it was there held that the records of the county court showed the property was homestead. It was shown on the trial that the land had been in the possession of J. P. Griffin, the father of Henry M. Griffin, since the purchase by J. W. Harris, and that the rent of the property during such time was of the value of $80, and J. W. Harris recovered judgment for that amount. In the opinion nothing was said as to rents, but the judg-| ment was here rendered for appellant for the land and $80 rent.

The motion for rehearing is overruled.

WOOD v. TEXAS COTTON PRODUCT CO.⭑ (Court of Civil Appeals of Texas. May 20,

1905.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-INSTRUCTIONS CURING ERROR.

An instruction, in an action for injuries to a servant, that when the master employs a minor to perform dangerous or hazardous work it is the master's duty to explain the proper manner of performing the work, etc., "unless the dangers and risks are patent and obvious to persons of like age and intelligence" of the minor, objectionable in limiting the master's duty to instruct to latent dangers, was cured by a special charge that if the jury found that the driftpin used by plaintiff's son, by which he was injured, had become defective and unsuitable, and that defendant's superintendent knew, or by the exercise of reasonable care ought to have known, of such defect, and plaintiff's son, while using such pin, was injured by reason of its defective condition, plaintiff was entitled to recover, unless the son, considering his age and experience, knew and appreciated the peril and danger of striking the pin when he did.

2. SAME-DUTY TO INSTRUCT-OBVIOUS DANGERS INEXPERIENCED EMPLOYE-ISSUES.

Where, in an action for injuries to a servant caused by a defective driftpin used by him, *Rehearing denied June 24, 1905.

plaintiff alleged that the pin when in proper condition was adapted to the use and purpose intended, and if the pin had been suitable, and the head thereof surrounded with soft or malleable iron, particles would not have been thrown therefrom nor the injury occurred, plaintiff was not entitled to object to certain instructions on the theory that the work in which the servant was engaged was dangerous of itself, and that defendant was bound to warn such servant, who was a minor and inexperienced, though the danger was obvious. 3. SAME.

Where plaintiff alleged negligence in that a certain tool was defective and unsuitable, by reason of which his son was injured while using the same, a charge presenting conjunctively the propositions of negligence in furnishing plaintiff's son with such defective tool, and the failure to warn him of the dangers and risks incident to the work, was proper.

4. TRIAL-INSTRUCTIONS — APPLICABILITY TO

PROOFS.

Where, in an action for injuries to plaintiff's son while attempting to work with a defective tool furnished him, there was no evidence that he was attempting to perform work for defendant which was outside the scope of his employment, it was error for the court to charge that, if he was performing work outside the scope of his employment when he was injured, he assumed the risk and plaintiff could

not recover.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by W. T. Wood against the Texas Cotton Product Company. From a judgment for defendant, plaintiff appeals. Reversed.

Templeton & Harding, for appellant. Harry P. Lawther and Skinner & Supple, for appellee.

TALBOT, J. This action was brought by the appellant to recover damages for loss of the services of his minor son, S. D. Wood, and for medical and other expenses incurred, on account of personal injuries alleged to have been inflicted upon his said son while engaged in the service of appellee, through its negligence. The petition alleged, in substance, that during the fall of 1902 appellee was in Ellis county, operating a gin and compress known as the "Round Bale system," ginning and compressing cotton with extensive and complicated machinery, and in such work employed the 19 year old son of appellant, whose work was to weigh bales of cotton, sample, number, and check the same, making duplicates, keeping book records, and to assist in keeping the press in repair in case of break down, or from other causes should it fail to work. That to compress said bales the cotton is wound around a core pin, which is driven out by placing a driftpin made of steel against the end and striking the driftpin with a hammer. That the work of removing the core pin was no part of the regular work of the son of appellant, but that he was subject to the regular orders of the appellee. That on October 11, 1902, the employé whose duty it was to remove the core pin was absent, and the minor son of appellant was directed to perform that work by appellee, of the dangers of which