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the minor was ignorant, and in attempting our Supreme Court in the case of the Texas to perform the same he struck the driftpin & Pacific Ry. Co. v. Brick, 83 Tex. 598, 20 with the hammer in the usual way, when a S. W. 511. That was a suit to recover of the scale or particle flew off and struck him in railway company damages for personal in. the eye, destroying the sight, and greatly im- juries alleged to have been inflicted upon a paired the other eye. That the said son was minor by the servants of John C. Brown, without knowledge of the dangers attending as receiver of the company's property, and the striking together of such metals, and of in that case the court said: “The plaintiff the probability of scales and particles flying being a minor, it was the duty of the receivtherefrom, all of which was known to ap- er, through his agents, to instruct him as to pellee, and it failed to give any warning to the dangers of the employment. That was said son, or to instruct him how to avoid the the primary obligation. But if the plaintiff danger. That it knew of his minority and at the time of his employment knew of the inexperience. That the driftpin was de- nature and extent of the danger, and his fective, battered, and worn, and was an un- judgment was sufficiently mature to apprecisuitable tool with which to perform the ate the risk, or if subsequently he became work, which was known to appellee. That aware of the fact and extent of the danger, a driftpin is manufactured for that purpose, and had the discretion to properly weigh and, when in proper condition, is adapted to his liability to injury from it, the receiver the use and purpose aforesaid, and is safe. became absolved from the responsibility That it is tempered to a high degree, and is arising from the failure to give the instrucvery brittle, and, to protect the head against tion. That he knew that there was some particles flying off when hit, the hammer is danger is not disputed; but whether, under surrounded with a more malleable metal, and all the facts, his discretion was sufficiently when in this condition it is safe, and no dan-developed at the time of the injury, considger results from striking it with a hammer. ering his knowledge and experience, to appreThat had said pin been surrounded with a ciate the extent of the risk, was not a quesmore malleable or soft iron, as it should have tion of law, but a question of fact, which been, or had the said pin been a proper and was properly left to the determination of the suitable pin, the particles would not have jury.” It is difficult to conceive how any been thrown off, and the said S. D. Wood person to whom the dangers and risks inciwould not have received the injury that he dent “to any given employment are” patent did. That the pin struck by the said son and obvious can fail to appreciate the risk, bad no band or cap on the head of same, and or properly weigh his liability to injury at that time he did not know that one was from it; but if it be conceded that the paranecessary, but supposed the pin safe and graph of the court's charge assailed is dewell adapted to the work at the time he fective in that respect, still we think the erstruck it. That its dangerous and defective ror was cured, and all danger of injury to apcondition was known to appellee. That, by pellant by reason thereof averted, by a spereason of negligence of appellee, appellant cial charge given at the request of appellant, was damaged $597.10. The appellee answer- which reads as follows: “In connection with ed by general denial, assumed risk, and con- the main charge, you are further instructed tributory negligence. There was a trial by that if you believe from the evidence that jury, resulting in a verdict and judgment the driftpin used for knocking out the core for appellee, from which this appeal is pros- from the bale of cotton had become out of ecuted.

repair and defective, and had become an imAppellant's first assignment of error com- proper and unsuitable pin to use for the plains of the following paragraph of the purpose for which it was intended, and by court's charge: "When the master employs reason of its condition was unsafe and dana minor to perform work which is dangerous gerous, and that G. F. Warner, the defendor hazardous to the person of such minor, it ant's superintendent, knew, or ought to have, is the duty of the master or employer to ex- by reasonable care, known, of the defective plain to such minor the proper manner of per- condition of said pin, if it was defective, and forming such work, and also to explain to such you further believe that S. D. Wood was actminor the dangers and hazards to his person ing within the scope of his employment when incident to the performance of such work, and he struck said pin, and that particles were how to avoid such dangers unless the dangers thereby caused to fly from said pin on acand risks incident to such work are patent and count of its defective condition, going into obvious to persons of like age and intelli- the eye of said S. D. Wood, causing an ingence of such minor." It is contended that jury, then plaintiff in this case would be enthe duty to warn an inexperienced minor is titled to recover, unless you further believe not limited, as a matter of law, to only dan- that S. D. Wood, considering his age and exgers which are not patent; that though the perience and all the other circumstances in danger may be obvious and patent, yet the the case, knew and appreciated the peril and master should warn and instruct how to danger of striking said pin when he did.” avoid it. The rule of law applicable to the The court, in different paragraphs, charged question, we think, is clearly expressed by the jury as follows:

88 S.W.-32

“When the servant or employé has been minor son, inexperienced, as appellee knew, supplied with a tool or instrument with was furnished a defective tool with which which to perform his work by his master or to perform certain work; that the performemployer, and such tool or implement is not ance of such work with such a tool was danreasonably safe for use by the servant or em- gerous; and, without warning of the dangers ployé in performing the work assigned him, incident thereto, appellant's son was directand it is obvious or patent to such servant ed to perform it. The defense was that the that such tool or implement is not reason- tool was not defective; that, if it was deably safe for use in his work, then it is the fective, such defect, together with the danduty of the servant or employé to refrain gers and risks incident to its use in doing from using such tool or implement; and if the work at which appellant's son was ena servant or employé uses a tool or imple-gaged when injured, was patent and obvious ment which he knows is not reasonably safe to one of his said son's age and discretion, for use in his work, then he assumed the the extent and nature of which he was fully risk of injury from the use of such tool.” capable of appreciating and understanding.

“The jury are instructed, if they believe There was evidence tending to the establishand find from the evidence that the drift rod ment of this defense, and we think the charwhich S. D. Wood was using at the time he ges complained of authorized under the was injured (if he was) was then and there a pleadings and testimony, and as applicable reasonably safe instrument or tool for the thereto state correct propositions of law. If, use intended, then it would be the duty of under the pleadings in this case, the tool was the jury to find a verdict for the defendant, defective, and the performance of the work as the risk of S. D. Wood in that event would assigned appellant's son with such an imbe assumed risk."

plement was dangerous, and by reason of his These charges are complained of and made youth and inexperience he was incapable of the basis of appellant's second and seventh knowing and appreciating the nature and assignments of error respectively. Under extent of the dangers and risks to which he the first-quoted paragraph, it is insisted that was exposed in doing such work, and the in case of an inexperienced minor it is not same bad not been explained to him, and true, as a matter of law, that he assumes the the defective condition of said pin the effirisk even of an obvious danger; that the cient cause of tbe injury, a prima facie case duty of the master is to warn of danger, the authorizing a recovery by appellant was esextent thereof, and how to avoid it. Under tablished. But, on the other hand, notwiththe second, the proposition is advanced that standing appellant's son's minority and inexeven though a tool may be safe and suitable, perience, if the driftpin in question was reayet if the work be dangerous, the duty ex- sonably safe, or if it was not reasonably ists to warn the servant, and especially is safe for use, and the defect or condition renthis true when the servant is a minor, ig- dering it unsafe was obvious or patent to apnorant of the danger, and without experi- pellant's son, and, knowing that such instruence; that in such case the failure to warn ment was not reasonably safe for use in the may be negligence, regardless of the reason- work assigned him, and so knowing, he used able safety of the tool itself.

it and was injured, we think, with such We are of the opinion that, in view of ap- knowledge, and under the case made by the pellant's pleading, neither of these assign- pleadings, he must be held to have assumed ments is well taken. The appellant did not the attendant risk of such use. allege and seek to recover on the ground We think there is no reversible error pointthat the work being performed by his son ed out in that paragraph of the court's charge when injured was, by reason of its nature attacked by appellant's fifth assignment. and character, necessarily dangerous, with- There was no controversy as to many of the out reference to whether or not the driftpin facts grouped in this paragraph of the charge, was defective; that if the driftpin had not and the error in requiring the jury to find been defective as alleged, yet by striking the the existence of all of them before authorized same with the hammer scales would form to return a verdict in favor of appellant was thereon and fly therefrom; and that appel- harmless, and the jury could not have been lee was guilty of negligence in failing to in- misled thereby. That portion of the charge form appellant's son of those facts, and of presenting conjunctively the propositions of the danger he might encounter in doing the negligence in furnishing appellant's son with work. On the contrary, it is alleged that the a defective tool with which to do the work, driftpin, "when in proper condition, is adapt- and the failure to warn him of the dangers ed to the use and purpose" intended; that and risks incident to such work, was correct, had said pin been surrounded at its head as the case stood under the pleadings and with a more malleable or soft iron, as it proof. Appellant's contention that he was should have been, or had the said pin been a entitled to recover upon proof either that the proper and suitable pin, the particles would driftpin was defective, or that appellee failnot have been thrown off, and the said s. ed to warn bis son, S. D. Wood, of the danD. Wood would not have received the injury gerous character of the work, cannot be susthat he did. Appellant's case as made by tained. As stated by counsel for appellee, aphis pleadings, succinctly stated, is that his pellant 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, 88 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, 8 3013; vol. 46, Cent. Dig. Trial, 88 703-708.) 3. CARRIAGE OF LIVE STOCK-DAMAGES DUR

ING TRANSPORTATION-INSTRUCTIONS-OMISSIONS_REQUESTS TO SUPPLY.

An instruction in an action against a carrier for damages to a shipment of cattle alleged by the sbipper 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 EvIDENCE.

It is not error to refuse a requested charge withdrawing from the jury an essential element of an oral contract supported by the evidence of a party. 5. CARRIAGE OF LIVE STOCK-CONTRACT OF

SHIPMENT-CONFLICTING CLAIMS-INSTRUCTIONS.

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.

Note.--For cases in point, see vol. 9, Cent. Dig. Carriers, 88 950, 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, $8 920-922, 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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9. APPEAL-ERROR IN ADMISSIBILITY OF EVI. hour of the same day they would if loaded at DENCE ASSIGNMENT OF ERROR – SUFFI

Abilene and transported over the Texas & CIENCY. Where the statements under assignments

Pacific Railway; that plaintiff delivered said of error relating to the admissibility of testi- cattle to appellant in compliance with said mony do not show what objections to the testi- verbal contract at Mathews Switch at 3 p. mony were urged, the assignments will not be considered.

m. on August 23, 1903, and that appellant (Ed. Note,-For cases in point, see vol. 3,

negligently delayed the transportation of said Cent. Dig. Appeal and Error, $8 3010-3012.]

cattle to Waco, where they were delivered to 10. CARRIAGE OF LIVE STOCK-LIABILITY OF

the Missouri, Kansas & Texas Railway ComINITIAL CARRIER-PROOF OF FREIGHT CHAR- pany, which, on account of the negligent GES-ADMISSIBILITY OF EVIDENCE.

delay of appellant, never delivered them to In an action against an initial carrier for damages to a shipment of cattle the receipts

appellee's consignee at Ft. Worth until 3 p. from the connecting carrier to the shipper's

m. on August 26, 1903, which was too late consignee showing the freight paid are admis- for the cattle to be sold advantageously on sible as showing the freight charges.

the market that day; that, had it not been Appeal from Eastland County Court; S.

for such negligence of appellant, the cattle A. Bryant, Judge.

would have been delivered to appellee's conAction by P. J. Miller and another against signee at Ft. Worth at between 6 or 8 o'clock the Texas Central Railway Company and an

on that morning, which would have been the other. From a judgment for plaintiff's against

time of their delivery bad they been shipped the Texas Central Railway Company, it ap

from Abilene over the Texas & Pacific Railpeals. Affirmed.

way Company's road; that by reason of such

negligent delay the cattle were damaged in Earl Conner and Clark & Bolinger, for ap

their market value and by shrinkage or loss pellant. D. G. Hunt and J. R. Stubblefield,

of flesh in the sum of $200, which amount for appellees.

appellees lost on account of such negligence

on the sale of his cattle at Ft. Worth. NEILL, J. The appellee P. J. Miller sued appellant and the Missouri, Kansas & Texas

Conclusions of Law. Railway Company to recover damages to a

1. The tbird assignment of error, which is shipment of cattle alleged to have been made

the first insisted upon, complains of the first under a verbal contract from Mathews Switch

paragraph of the court's charge. We will to Ft. Worth, Tex., via Waco. The appellant not consider the first and second propositions and the Missouri, Kansas & Texas Railway

under this assignment, because they are forCompany answered, denying the alleged ver

eign to it. The third proposition advanced, bal contract, and pleaded specially that the

to say the best of it, is far-fetched. The porshipment was made under a written contract

tion of the paragraph of the charge, upon limiting each's liability to its own line of ra'il

which the assignment is predicated, is deway. The appellant also impleaded the Mis

tached from the preceding portion in order to souri, Kansas & Texas Railway Company,

give it an entirely different construction than which, it alleged, received the cattle in good

from what would be given the paragraph order from appellant at Waco for transporta

as a whole. In other words, the detached portion to their destination, and that, if they

tion, which is complained of, is dependent upwere damaged, such damages were occasioned

on what precedes it for its true meaning. by said railway; and asked that, in event

Severed, as it is, from its antecedent by the judgment should be rendered against appel

assignment of error, it is not proper to predilant, it have judgment over against the Mis

cate error upon it. When the paragraph is souri, Kansas & Texas Railway Company for

considered as a whole, it correctly states the a like amount. The case was tried before a

law upon the phase of the case which it prejury, and the trial resulted in a judgment in

sents. favor of Miller for $200, and also in favor of

2. The fifth assignment of error complains the Missouri, Kansas & Texas Railway Com

of the third paragraph of the court's charge. pany.

The proposition asserted under it is that Conclusions of Fact.

a charge is erroneous which authorizes a The evidence is reasonably sufficient to recovery against a railway company when show that on the 24th day of August, 1903, the undisputed facts fail to show that any the appellant, for itself and the Missouri, damage was sustained to the plaintiff while Kansas & Texas Railway Company, through on the line of said railway, when said railits duly authorized agent, verbally agreed way company has by written contract limited with plaintiff to transport without delay 99 its liability to its own line." This proposihead of his cattle from Mathews Switch, tion is based upon the false hypothesis that Shackelford county, Tex., to Ft. Worth, Tar- the undisputed facts fail to show that any rant county, Tex., via Waco, and deliver the damage was sustained to the cattle while on same to plaintiff's consignee, for the same the line of appellant's railway. As shown rate of freight per car as the Texas Pacific by our conclusion of fact, the evidence does Railway Company would charge from Abi- show damage to the cattle on appellant's line lene, Tex., to Ft. Worth, and that they should of railroad; and this disposes of the proposireach their destination at about the same tion. The second proposition under this assignment is that the paragraph referred to alleged written contract, then the question of "is erroneous in that it shifts the burden of damages rests upon appellant's violating the proof upon the appellant to prove that oral one, and the written one has nothing to there was no oral contract, when the bur- do with it. Under the oral contract there den of the case should rest upon the plain- was no limitation of the damages to appeltiff to establish the oral contract by a pre- lant's own line of railroad. Under it appel. ponderance of testimony." A charge must lant contracted that they should be delivered be taken and construed as a whole. When at Ft. Worth within a certain time; and this is done, it is seen that the question as to whatever damages were occasioned plaintiff whether or not the contract of shipment was by its failure to perform this contract it oral was properly submitted to the jury by was liable to plaintiff for, whether it occur. the preceding paragraph, and that the mat- red on its own line or elsewhere. ters submitted in the paragraph complained 8. As we have before intimated, the liabilof were only intended by the court to be con- ity of appellant under the oral contract was sidered by the jury, in the event they deter- not limited to such damages as occurred by mined there was no verbal contract between reason of its negligence on its own line of the parties.

railway from Mathews 'Switch to Waco. 3. The next assignment of error complains Hence the court did not err in refusing to of the sixth paragraph of the charge, which instruct the jury, at appellant's request, if is as follows: "Unless you believe there they believed from the evidence that the dewas an agreement as to rates of freight char- fendant Texas Central Railway Company ges to be paid before the cars were placed used that degree of care, caution, and pruand loaded, the plaintiff would not be en- dence as a reasonably careful, cautious, and titled to recover anything because of such prudent man would have exercised under charges." We cannot perceive how appel- like or similar circumstances in handling lapt was injured by this portion of the and transporting plaintiff's cattle from Mathcharge. It is good as far as it goes. If it ews Switch to Waco, Tes., and with ordinary does not go far enough, in that it fails to care, to return a verdict in its favor. inform the jury that if, from the evidence, 9. The nineteenth assignment of error, they believed the alleged oral contract was which complains that the court nowhere in entirely superseded by the alleged written its charge defined negligence, cannot be susone plaintiff would not be entitled to recover tained; for it is shown by the supplemental anything by reason of the oral agreement- transcript that the court defined negligence if there were such an agreement-as to the in a special charge prepared and given at the freight charges, appellant should have ask- instance of appellant. ed a special charge supplying the omission. 10. The same proposition is advanced un

4. Our conclusions of fact dispose of the der the twentieth assignment of error as untenth assignment of error adversely to appel- der the seventeenth, and it is likewise disposlant.

ed of. 5. The court did not err in refusing to give 11. The substance of special charges Nos. appellant's special charge No. 2. To have 16 and 19, the refusal of which to give is given it would have been, in effect, to with- made the subject of the 22d and 23d assigndraw from the jury the question of shipment ments of error,' was given by the court in under the alleged oral contract, or rather to special charge No. 15 (found in the supplehave excluded from the jury an essential mental transcript), and correctly states the element of such contract, which was appel- rule as to the measure of damages. lant's undertaking by it to deliver the cattle 12. The propositions made under the asin Ft. Worth early in the morning of August signment which complains of the court's giv26th. It was only in the event that the jury ing special charge No. 2 at the instance of should find there was no oral contract, the plaintiff cannot be sustained, for such special special charge should have been given.

charge is not merely a repetition of the first 6. Special charge No. 7, the failure of paragraph of the court's main charge. If it which to give is made the subject of the sev- was found that the appellant agreed to ship enteenth assignment of error, is upon the and deliver the cattle within the time alleged weight of evidence, in that it assumes the by plaintiff, then the undisputed evidence alleged oral contract was not in force, and shows that it breached the agreement. From that the rights of parties were to be deter- which it follows that defendant was liable to mined by the alleged written contract. As plaintiff as damages on account of his failure to the written contract, plaintiff alleged facts to receive the market value of the cattle, ocand circumstances which would, under the casioned by the breach of such agreement. decisions of this state, absolutely defeat it And in determining such damages the shrinkas a contract of shipment. Therefore, the age of the cattle occasioned by appellant's court did not err in refusing to give such spe- failure to deliver them within the time agreed cial charge.

upon was a matter to be considered by the 7. For the same reason the court did not jury. The evidence is undisputed that plainerr in giving the tenth special charge request. tiff received less than the market value of ed by appellant. If the facts and circum- his cattle, and hence the court did not err in stances alleged were such as to defeat the assuming such fact as proven in its charge.

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