*

I don't know how long it took | ride trains after finishing my work in the yard me to check the cars in that train, about 30 or for the purpose of putting up my book. I said

40, something like that, minutes, may be an after I had got on the running board the ca· hour, I am not certain. I had just finished boose had gone something like 10 or 12 feet

checking the cars in that train when I had before I was struck. I was struck at the right started back to the depot. When I finished I side. Clifford Joplin was not hit, he was stand

I was ready to go back to the depot. I didn't ing on the running board leaning in the door; have to check any more that night. My work he was not hurt. As to whether it is a fact of checking was finished for the night; that that I testified on a former trial of the case was the last train I would have to check-my that the only time I was authorized to ride work wasn't finished, I had to take the seal rec- trains was when I was going to or coming from ord and put it in the office before I left. They the south yard, or when I was checking a train, had to stay in the office all the time because and they moved that train before I had finished they done their work by that, by the seal record, that checking, that might be the only time I by that book, I mean. When I finished checking was authorized to. The only time I was authis train, I was two or three blocks then south thorized to ride on trains was when I would of the depot. This train that was passing that go out to the south yard, or come back, or when I was injured by, at the time I was injured, I was checking a train, checking a cut of cars, was a north-bound freight train-I don't know and hadn't finished my checking and they moved what it was-that train was pulling through them, and I got on them and rode; those are the yard going north. It was not a string of the only times he told me to ride; he has told cars with a switch engine, or anything like that; me that. The south yard is about 312 miles it was a freight train; and it was not my duty, south of the Congress street yard. As to whethor I didn't intend at that time, to check any er there is any yard between the Congress street cars in that train, and I hadn't checked any yard and the south yard, well, there are some cars in that train. I had just got on the side tracks at the roundhouse; they do a little of that train; I made an effort to ride back switching at the roundhouse, not much; that to the freight depot to put this seal record up, is not just with engines and things like that. and this other boy had to put his lantern up, They have cars out there, too, there are two or and we would be off. The reason I attempted three tracks. The roundhouse from the Conto get on this train instead of walking down gress street yard is about a mile, and the to the depot, it is customary for all employés south yard is about 212 miles south, to the south in the yard to ride if they want to go to any yard, I guess. Between the Congress street part of the yard there; if they go out of the yard and the roundhouse, and between the yard, they got on the train and go out. As to roundhouse and the south yard, as to whether its being a fact that I just decided it would be they make up or break up any trains at those a little more convenient to go back that way, points, well, I don't know about that; they stop and for that reason I got on that train-it was there;' I know the roundhouse, I-I don't know customary; that was my understanding. I whether they do or not between the roundhouse say it was customary for them to ride if going and the south yard. I never checked any cars, back to the depot, and you can do your work between the roundhouse and the south yard, and quicker. As to whether it is a fact that I at- I never checked any cars between the roundtempted to get on the train because it was more house and the Congress street yard.

* convenient for me to do it than to walk, well, This other boy, Clifford Joplin, was not hit by you can do your work quicker; it is just as the switch. He was standing or leaning in the easy to do your work that way; you can do door with his feet on the running board. He your work quicker. As to whether that is the was not hurt at all. * * * I was employed reason I attempted to get on the train instead to work for the Houston Belt & Terminal Railof walking back to the depot, I do anything to way Company, and I was working in the yard do my work quicker; and in daytime even the of that company when I was injured, during yardmaster sees you, and all the others see you; the month of my service. In answer to a quesit is customary to ride on trains. On this par- tion of Mr. Burns, I said that nobody ever inticular occasion I had finished all my work of structed me to ride the cars in the yards in checking cars, I had finished checking the train, going to and from my work; that nobody ever and I was going back to the depot to leave my told me not to do it. *** If the railroad book there, and then I was going home; that company or any of its representatives had ever was part of the work, to put the book back, I told me not to ride those cars, I would not have was not finished until the book was in the office. done it, I couldn't do the work without riding; After I put up the book, I didn't have any more I thought it was right to do it.” work to do that night. I had checked cars in Defendant introduced and read in evidence the south yard. I said that when I worked at paragraphs 16 and 17 of the application for the south yard to check cars, when I went there, work signed by plaintiff. "16. Do you underI would get on the switch engine and ride out. stand that in the discharge of your duties it will

“Q. Now, Joe, isn't it a fact that the only be sometimes necessary for you to use tracks, time you were authorized to get on cars and cars, machinery and appliances that are defecride was when you were going out to the south tive, and that it is necessary for you to examyard, or coming back, or when you were check-ine cars, machinery and appliances, that you ing a train of cars, and they moved the cars have to use carefully, to prevent injury to yourbefore you finished your checking? A. No, sir; self and others? Yes.

A. No, sir; self and others? Yes. Also do you understand you could ride any time; the yardmaster' was that as far as possible you should acquaint around there; and if it was not customary, I yourself with the condition of the track? Yes. suppose he would have said so; he could have Do you agree to use diligence in ascertaining said so, I suppose. He has told me to go out to the condition of cars, machinery and appliances 49, and he has told me to come back, and if with which you have to come in contact or use the train was moving, he has told me to get on in the performance of your duties which would there and check it, and I had to check it; he render your work dangerous or subject you to would tell me to ride. If trains that I was injury? Yes." checking started to move, why I would get on "I say that I had been working for the Housand go with the train to finish my checking. ton Belt & Terminal Company about a month I was standing a little back of the door on the when the accident happened." side upright on the running board when I was C. E. Mayfield, defendant's yardmaster at the struck. It is a fact that I testified on a former time appellee was injured, testified: “The peotrial of this case, when I was asked the ques- ple employed in that yard and about it are untion: ‘At the time you were hurt you were der my supervision. I had authority to forbid standing up on that running board ?' and I an- any practice that I saw proper, and that ap

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outside of switchmen. Of course that was their tion, and I looked around, I looked back, and as business. With reference to my answering Col. I looked back I saw the boy running to catch Jackson's questions that I didn't tell Joe to the caboose, and just as he reached to catch it, ride on passing trains or any cars switching he fell, he struck the switch stand and fell. I around there going to the office after he had say there was another boy with him, with the gotten through checking in order to deliver the one that caught the caboose. This was a box books, I don't believe I did tell him not to do it. car caboose, a box car converted into a caboose. * *

* I don't suppose I would know Joe The boy that caught the caboose was standing Stephens if I would see him. I remember the on the rear end of the step, on the east side, or circumstances of his being injured. I remember right-hand side of the train. The train was goa young man by that name in the employ of the ing north, and he was standing on the rightcompany. I never did give instructions to him or hand side on the running board. I saw as we any one else in the Congress street yard to get were going out we were looking north, and on moving trains and ride from the yard up to when this boy caught on the caboose that at

Within my knowledge while I was tracted my attention, and I looked around; it yardmaster there, or while I was switchman was not our intention to stop at the depot; we there, it was not the custom and practice for were going straight through. When the plaincar checkers, after finishing their work, to get tiff stumbled there, I did not know at that time on moving trains or cars and riding to the office whether or not he had injured himself; I first for the purpose of leaving their book, I don't re- learned that he had after we arrived at Belt member seeing them do it, but I suppose they Junction. Belt Junction with reference to the did do it; I never instructed, permitted, or au-Congress street yards, I would suppose it is thorized that; my instructions did not authorize about 5 miles, and it is north, it is north of or permit it. * * * The south yard is 242 here. This was between 7 and 8 at night, as miles from the city yard. * * * If the trains well as I can remember. * * I don't rehappened to be moved at some other place in the member whether the following question was proyard, as to whether he rode those cars around, pounded to me on the former trial: 'Did you and whether it was his duty to do so, in the think he got hurt in any way?' and that I Congress street yard it was his duty to walk answered 'No, sir. I suppose the following over there and tag them; he had no business on question was asked me on the former trial, 'You the cars when they were switching them up and did see him fall off?' and I answered, 'I said down. Say he is now taking the numbers and just about the time he reached up or caught seals on a string of cars and the switch engine hold he hit the switch stand' and I suppose it comes along and takes them, moves them entire was true when I answered it this way. To the ly, moves them to another part of the yard and question asked me on the last trial, 'As well as mixes them up with some other train or goes you remember, why couldn't you remember if around to some other train, if they did that, it he was on the ground or if he was on the footwould be his duty to go to get the seals and tag board?' I did answer, “Just about the time he them, but-it was his duty to follow the cars; reached for the iron he fell; it happened so it was his duty to-they marked the cars and quick, I don't remember whether he swung onto seals; they didn't ride the cars in doing that. the step or hit the switch stand and fell first.' I couldn't say that I never saw them ride the That was true. I can't state definitely whether cars; I don't recollect seeing them ride the his foot was on the board or not, on account of cars, because the tracks are close together. As the fact it was done so quick. The step was not to my being told that they did ride the cars dark; the light from my lantern was on the after they got through checking back into the step. I was not looking for any accident to hapoffice, I was told the next morning after that pen, and I didn't, I said, I didn't know about it young man was hurt; I was not told before that until I got up to Belt Junction." that the boys did it. I was around in the Clifford Joplin, witness for defendant, testiyard every day. I never seen them riding cars fied: "I was employed by the Houston Belt & back to the office; I see those men riding the Terminal Railway Company. I was working cars, I couldn't say whether they were checkers for that company in September and October, or not. It is not a fact that I have seen those 1908. I was working for the company at the checkers riding cars and following them about time of the accident to the plaintiff Joe K. for the purpose of doing that work, I didn't see Stephens. My position at that time was checkthem. I have seen some of them do it, of course ing cars and doing calling, everything of that I have. I did say I told them to ride the cars kind, though I was a car checker. I think that down to the lower yard, for the purpose of was the same kind of a position that Joe K. checking and doing their work. This uptown Stephens held. Relative to my duties and what yard is about five blocks long, five or six blocks, I would have to do as a car checker, in the about 1,200 to 1,500 feet."

morning, the first thing in the morning, we W. B. Edwards, witness for defendant, testi- would have to go out and check the yard; I befied: "I worked for the Trinity & Brazos Valley lieve they had three checkers at the time I was Railroad Company, and ran over the Houston there, one for the old roundhouse, and one for Belt & Terminal Railway Company's tracks. the new yard, and one for the old yard. We I held the position of brakeman with the Trinity would go out in the morning and check the & Brazos Valley Railway Company; I was yards, then come back there, and there would working for that company in the year 1908. I probably be a train or something, and they do recall something of an accident to the plain would send you out to get the numbers and tiff, Joe K. Stephens. I was rear brakeman on seals of that. They never instructed me about the train that the accident happened on. The riding on trains, with the exception of going out train at the time of the accident was in the to the south yard; then you would probably go Houston Belt & Terminal Railway Company's on a switch engine and ride out, then get off. yard and heading out north to go to Tomball, If I was going out to the south yard, they never in what was known as the Congress street yard. told me to get on; I never had any instructions That train had come from Galveston; it was a as to returning to the depot after I had finished freight train. We stopped out in the lower part the train in the Congress street yard. As to of the yard and set out about half of our train; riding trains, I was never given permission by we left with 27 cars. We stopped in the Con- those who employed me to ride trains after I gress street yard—that was before the accident had finished checking a train in the Congress happened and then we started out north. Istreet yard on my way back to the depot. Supwas standing in the caboose door and watching posing I was checking a train in the Congress ahead, and the boy that was with Stephens street yard, and before I finished taking the caught the caboose; that attracted my atten- numbers of the cars there and they moved the

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train, as to what instructions I had as to rid-, fendant under the circumstances, and believe ing that train, if we could get them without get- that after he had got on the said step he came ting on the train, why get them, best to get in contact with an upright switch stand and was them; we were supposed to get them without thereby knocked down and his right foot run getting on if we could; I don't know exactly over by the wheels of the caboose and injured about getting on, but you would have to get at the time and place and in the manner subthem. I don't know whether it was a month stantially alleged in his petition; and you furor two months that I had known Joe Stephens ther believe from a preponderance of the eviprior to the time of this accident; I don't re-dence that the said switch stand was maintained member the exact time, Joe and I had occasion in such proximity to the track on which the said at times to work together in checking cars; caboose was moving as to be a menace to the I think he is a little younger than I am; I will safety of defendant's car checkers in the perbe 22 in April. My relations with Joe were formance of their duty in the manner they were friendly while I was working there; they are expected to perform it; and you believe that defriendly now, on my part. I remember about fendant in so maintaining the said switch stand, the time Joe got hurt down there. At the time if it did that, should have foreseen that plaintiff, of his injuries, I had got through checking;, I or some other car checker, would, in the perhad checked a Santa Fé train, the 'Bobbie,' I formance of his duty, in the manner expected of believe they call it.

I came over to him, be injured by coming in contact with the Joe. Joe was on a B. V, that had been set out, said switch stand, while riding upon cars passand I had finished mine, and I came over to ing the same under circumstances similar to him and helped him. I had a light; Joe didn't those under which the plaintiff was injured, and have a light. We finished somewhere between, I was guilty of negligence, and believe that such don't remember, but 7 and 8 at night. While negligence was the proximate cause of the injury me and Joe were working there together and in of plaintiff; and you do not believe plaintiff checking that train and taking the numbers off himself was guilty of contributory negligence, or of it, the one that had the book would put them assumed the risk of injury-you will return a down in the book. Joe had the book on that verdict for the plaintiff, and assess his damages trip. I would call the numbers off to Joe, and according to the rule hereinafter given you; he would put them down in the book. We had but, unless you so find, you will return a verdict finished checking the cars in that train, I had for the defendant. hollered the number on the last car. Then me "Or, on the other hand, if you do not believe and Joe started to the depot. The depot was from a preponderance of the evidence that the about 212 or 3 blocks from the place where we plaintiff was injured at the time and place and were when we finished checking the train; in the manner substantially as alleged by him we did not walk down to the depot. There was in his petition, you will, without inquiring fura train coming, and we hopped it; I got on it, ther, return a verdict for defendant; or if you and Joe tried to get on; he grabbed at it, and do not believe that plaintiff undertook to get on he hit the switch, and I got-and I heard him the caboose and was injured after he had gotten halloa, and he says he broke his leg, and I hop- the switch stand; or if you believe he was thus ped off and went back to him, and picked him the switch stand; or if you believe he was thus up; I didn't know how bad he was hurt. He injured, but yet do not believe that the plainup; I didn't know how bad he was hurt. He tiff was expected in the performance of his duhad on black stockings, and I picked him up; ties to ride on the car under the circumstances; he wasn't bleeding; and there was a switch engine coming back there, and I flagged it, and or if you believe the plaintiff attempted to get we brought him to the depot, and then after- on the caboose step and in doing so ran against

the switch stand and was thereby caused to fall

. The train was going north, towards the depot, and be injured; or if you believe plaintiff's init was moving between 7 and 8 miles an hour: jury was due to dangers and risks and condi

; tions I say it was a T. & B. V. freight train. I

were ordinarily incident to his I

service; or if you do not believe the injury of couldn't say for sure whether it was a through plaintiff or some other car checker under like train or not; it went right on through.. I circumstances, in view of the way plaintiff was spoke of some B. V. train Joe was checking, expected to perform the services, was one which that was the one that came in, and that was should have been foreseen as likely to occur unset out. That train was a different train from der the circumstances you will, in either, any this T. & B. V. train that was going out that or all of such cases, likewise return a verdict me and Joe tried to get on.”

for defendant." The court charged the jury as follows:

On the trial exception was taken to the ad“Now, therefore, if you believe from a prepon- mission of certain testimony of appellee. The derance of the evidence that Joe K. Stephens, material portion of the bill is as follows: the plaintiff, was in the employ of the defendant

"Q. If the railroad company, or any of its as a car checker, and that it was his duty to representatives, had directed you not to ride enter in a book provided by defendant for that those cars, would you have ridden them, or not purpose the numbers and initials and the seal have ridden them? Defendant: I object to that numbers of the cars received by defendant in its as calling for a conclusion of the witness as yards in and near the city of Houston, Tex., and to what he would have done, and as being irbelieve defendant expected plaintiff and its oth- relevant and immaterial. Court: I overrule the er car checkers to ride cars which might be objection. Defendant: We except. A. If they passing when going to or returning from their had ever told me not to, I would not have done work in the yard, then it was the duty of the de- it. I couldn't do the work without riding." fendant to use ordinary care to furnish plaintiff Exception was also taken to admission of cerand its other car checkers a yard that was rea- tain testimony of appellant's witness Mayfield. sonably safe for performing the work in the The material portion of the bill is as follows: manner expected of them; and, if you believe

“Q. You state, in answer to Mr. Jackson's from a preponderance of the evidence that the question, that this switch was as close as it plaintiff, in the performance of his duty, took was to the track because the tracks were closer ? the seal numbers of certain cars in defendant's A. Yes, sir. Q. Couldn't you have built your yards in this city, and that after doing that he tracks further over? A. They didn't do it. got on the steps of a caboose attached to a Q. Couldn't you have done it? A. It ain't imtrain that was then passing, to ride thereon to possible to do anything. Q. Just answer the the depot for the purpose of leaving the book in question you could have done it? A. Could have which the seal numbers had been entered, and done it; yes, sir. Q. The reason the switch believe that in so doing he was performing his stand was as close as it was is because you built

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It would have been safer to have had them of carrying on its car checking business. further apart, would it not? A. It certainly Such findings must negative the holding, as · would. Mr. Burns: We object to the question, 'It would have been safer to have had them matter of law, that appellee was acting withfurther apart, would it not? A. It certainly out the scope of his duties when injured. would,' on the ground that it is certainly calling For, as was said by the Supreme Court of for a conclusion of the witness. Mr. Parker: I offer it on the ground-this is the yardmaster, Pennsylvania, in Rummell v. Dillworth, 111 and we have taken his testimony, and he is Pa. 348, 2 Atl. 358: thoroughly qualified to speak on that point. He

"The scope of his duties is to be defined by was in charge of the yard, and familiar with its what he was employed to perform, and by construction. Court: I overrule the objection. what, with the knowledge and approval of his Mr. Burns: Note our exception." Under the facts stated and evidence quoted by the mere verbal designation of his position."

employer, he actually did perform, rather than above, the majority of this court are of the opinion, under authority of Railway Co. v. Spivey, 97 Tex. 143, 76 S. W. 748, that ap| certified, was expressed in

The rule, which finds application to facts pellee, in attempting to board and ride upon

the case of the train from which he was precipitated, was Bowles v. Ind. Railway Co., 27 Ind. App. a trespasser, or, at best, a mere licensee, and 674, 62 N. E. 95, 87 Am. St. Rep. 279, in the as such he accepted the train and track over

following language: which it was passing in the condition in which he found them, and that appellant was under

"In view of the migratory character of the no obligation to arrange its yards, tracks, and service, such transportation facilitated the prosswitch stands to secure his safety while so ridecution of the work, and was beneficial to both ing or attempting to ride upon said train, and employer and employés. It was, by the conwas not liable for the injury caused by the neg- duct of the parties, if not by their express ligent proximity of the switch stand to the track agreement, an ingredient and instrumentality of over which said train was passing.

the employment. * * The defendant was Question No. 1: Is this view of the majority not carrying the plaintiff gratuitously for the correct?

mere accommodation of the latter, without It is objected by appellant that the paragraphs regard to the relation between them created in of the court's charge quoted above submit an their contract, but was doing so because of erroneous basis of recovery and authorize a re that relation, and as an incident of the employcovery by appellee upon a state of facts which ment." Bowles v. Ind. Ry. Co., 27 Ind. App. would have constituted him a mere licensee in 672, 62 N. E. 95, 87 Am. St. Rep. 279. riding the train from which he was thrown. The majority are of the opinion that this ob- St. L. S. W. Ry. Co. v. Spivey, 97 Tex. jection is well taken.

144 to 147, 76 S. W. 748, determined that Question No. 2: Is this view of the majority the allegations of the petition in that case correct?

Question No. 3: Was the testimony of Ste- showed no cause of action against the railphens and Mayfield quoted in the foregoing bills way company, since it was not alleged that of exception subject to the objection urged by the duties of the plaintiff as call boy against its admission?

Question No. 4: If such testimony was ob- he "was required or expected to ride upon jectionable, does its admission constitute reversi- freight trains which might be passing ble error?

through the yards," and since the facts The diverse views of the majority and minority of this court upon the questions certified which were alleged did not "indicate that are set forth at length in their respective opin- his duties required him to ride upon such ions accompanying this certificate, and the court trains.” Here it is alleged and there is eviis respectfully referred thereto for a more com- dence to establish that appellee was both replete statement of the conflict existing between the members of this court upon such questions. quired and expected to ride the trains mov[1] We answer the first question in the of his duties as car checker.

ing in appellant's yards, in the performance negative. The issue as to whether appellee was acting in the line of his duty, when he Tex. Civ. App. 439, 76 S. W. 582, 583, ap

In C., R. I. & T. Ry. Co. v. Oldridge, 33 received his injury was for the jury, under the facts certified. Viewing the facts in the proved in M., K. & T. Ry. Co. of Texas v. most favorable light to appellee, the jury nence was given in appellant's brief to the

Rentz (Civ. App.) 162 S. W. 960, much promihad a right to find: First, that no specific contention that appellee was not in the disdirections were given to appellee about riding trains, in going from the depot to his charge of his duty as a freight brakeman work on the yards and in returning from the when he entered the caboose in the switch yards to the depot, save that he had been yards before his train had been made up, told to ride in going to, and in coming from, and that hence appellee was a mere licensee

or trespasser. In rejecting the contention, the south yards, and that he had been told

the Court of Civil Appeals said: to ride trains which were moved while he was checking them; and, second, that in that it was customary for freight brakemen,

“The testimony of appellee tended to show order to increase the volume of work to be when called to go out with a train, to meet the accomplished for appellant, in a given time conductor in the caboose, with the food and and for a given wage, appellee and his fel- clothing required for the journey, while the low car checkers had habitually ridden on train had been made up. If it be true that ap

caboose was yet in the yards, and before the the trains in all the yards of appellant, in pellant's business, as well as that of other railgoing to their work, and in returning to the way companies, had been habitually conducted depot from their work, and that appellant, in the absence of a definite rule or positive re

in this manner, as the evidence tended to show, with full knowledge, approved this method quirement to the contrary, we could not say that

appellee was a mere volunteer when he entered

(83 Tex. Cr. R. 281) the caboose in this instance. His conduct

WHITENER v. STATE. (No. 4994.) should be interpreted in the light of the usage or custom pertaining to the service in which (Court of Criminal Appeals of Texas. April he was engaged, and the question was one for 17, 1918. Rehearing Denied May the jury."

8, 1918.)

1. ASSAULT AND BATTERY Om92-AGGRAVAT[2] Answering the second question, we ED ASSAULT — DECREPITUDE — SUFFICIENCY cannot agree that the court's charge author

OF EVIDENCE.

Evidence that accused weighed 180 pounds, ized a finding in favor of appellee "upon a and that assaulted person weighed 140 pounds, state of facts which would have constituted and was and had been for some time afflicted him a mere licensee in riding the train from with tuberculosis, is not alone sufficient to which he was thrown.” For, before the ju- show, assault was aggravated because of de

crepitude of assaulted party. ry were authorized to find for appellee, the 2. CRIMINAL LAW E296-JUDGMENT-FORcharge, as a whole, expressly required the MER JEOPARDY. jury to find, among other matters: First, Adjudication by the court of matter claimed that plaintiff, in getting on the steps of the such plea is decided adversely by the court, and

to constitute former jeopardy is necessary where caboose to ride to the depot, "was perform- not submitted to the jury. ing his duty in the manner expected of him by the defendant under the circumstances" ;

Appeal from McLennan County Court;

James P. Alexander, Judge. and, second, that the switch stand was main

C. C. Whitener was convicted of aggratained in such proximity to the track on vated assault, and he appeals. Reversed and which the caboose was moving as to be a

remanded. menace to the safety of defendant's car checkers in the performance of their duty Jos. W. Hale, of Waco, for appellant. E. in the manner they were expected to per- B. Hendricks, Asst. Atty. Gen., for the State. form it, and that defendant, in so maintaining the switch stand, should have foreseen

DAVIDSON, P. J. This conviction was that plaintiff or some other car checker, for aggravated assault; the fine being $25. would, "in the performance of his duty, in [1] The evidence shows that Whitener, his the manner expected of him, be injured by wife, and child were driving in an automocoming in contact with the said switch bile, and the alleged assaulted party, Jenstand while riding upon cars passing the kins, was driving a service car; that Jensame under circumstances similar to those kins ran into the car occupied by appellant under which the plaintiff was injured.” Be- and his family, knocking his child from the sides, the jury were further expressly in- car. A personal difficulty ensued, in which structed that, if they did not believe "that appellant struck Jenkins, caught him by the

The assault the plaintiff was expected in the perform-coat, and pushed him down. ance of his duties to ride on the car, under was alleged to be aggravated by reason of the circumstances,” then to find for defend the fact that Jenkins was decrepit. The eviant.

dence on this point is that appellant weighed [3] The obligation of the master to exer- 180 pounds, and Jenkins weighed 140 pounds, cise ordinary care to provide reasonably and was afflicted with tuberculosis, and had safe premises can be invoked as the basis been for some time. The evidence is silent for liability for a personal injury to a sery- as to any further weakness or incapacity or ant only when the injury has been received decrepitude on the part of the assaulted parin the line of the servant's duty.

ty, Jenkins. We are of opinion the evidence

The charge, of which complaint is made, required is not sufficient to support the allegation. appellee to be doing, not only the work ex- corporation court for this assault, and paid a

[2] Appellant had pleaded guilty in the ,

, it in the performance of his duty as servant, fine of $15. A plea of jeopardy was interit in the performance of his duty as servant, posed in the county court on the proposition and we do not think it failed to safeguard that he had previously been convicted and every right of appellant.

fined in a court of competent jurisdiction, [4, 5] We answer to questions Nos. 3 and 4, and, second, that when first tried in the that the admission of the quoted testimony of county court the jury was out considering witnesses Stephens and Mayfield did not their verdict for something like six hours. constitute reversible error. The testimony The jury came in after being out about three of Stephens as to what he would have done hours, and reported they could not agree. under circumstances, shown not to exist by After being out a while longer, amounting to uncontradicted evidence, could not have af- six hours from the time of the submission fected the findings of the jury on the issues of the case, in the absence of the defendant submitted, and we concur in the opinion of and his counsel, the court discharged the the Court of Civil Appeals that the opinion jury on their statement that they could not of Mayfield was that of a duly qualified ex- agree. The jury stood 5 to 1, but it is not pert.

shown how the 5 or the 1 stood, whether for