and grass, not to be the regular track, and he concluded that the train would come down the left track, and that he expected to be made aware of the immediate approach of the train by ringing of the bell and blowing of the whistle. There is dispute in the evidence as to the blowing of the whistle and ringing of the bell. The approaching passenger engine at the time was making heavy exhaust, which could be heard a long distance. Appellee could easily hear the exhaust. It is evident from these facts that appellee was walking in a dangerous place at the time the engine struck him, and that he voluntarily chose to occupy that place. If the train was • 600 feet away at the time he got on the ends of the cross-ties, as he says, then appellee was not in that place, as shown by the facts from any emergency, and further he had ample time to know and see the track the train was on, if he had only heeded the known movement of the train. And even if appellee concluded that he was not on the main line, he could under all the facts, by a mere look back in the direction of the train, have discovered his erroneous selection of tracks, and immediately have realized that the approaching train, of which he was fully aware, was bearing down on him on the very track he was occupying. We feel constrained to hold that under the particular facts of this case appellee was guilty of contributory negligence as a matter of law. Smith v. Ry. Co., 17 Tex. Civ. App. 502, 43 S. W. 34; Ry. Co. v. Wilkins, 32 S. W. 351; Ry. Co. v. Miller, 30 Tex. Civ. App. 122, 70 S. W. 25; Ry. Co. v. Mitchum, 140 S. W. 812. See Ry. Co. v. Wall, 102 Tex. 362, 116 S. W. 1140. We do not deem it necessary to pass upon other features of the case, as the cause will be remanded for another trial. Appeal from District Court, Collin County; F. E. Wilcox, Judge. Action by W. D. Coffey against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed. The suit was brought by the father to recover in his own right damages for injuries sustained by his minor son. Ross Coffey, the son of appellee, at the time of the suit was a minor 17 years of age. On March 12, 1912, and for a long time prior thereto, Ross Coffey, with his father's knowledge and consent, was in the employ of appellant as a messenger boy. On March 12, 1912, the local manager of appellant company, empowered by the company to hire and discharge employés, and knowing the minority of Ross Coffey and of his employment as a messenger boy, entered into a contract with Ross Coffey to assist in the outside construction work of the company, such as stringing wires and installing poles. This employment of the minor was without the knowledge or consent of his father, and was work of a more hazardous nature than the regular employment as a messenger boy. On March 13th, the next day after the employment, while engaged in assisting to erect a telephone pole, Ross Coffey was grievously injured by the pole falling upon him. These findings of fact are warranted by the evidence, as well as the amount of damages awarded by the verdict of the jury. The petition pleaded, among other things, the employment by appellant of the minor to do the work of a mes For the error discussed, the judgment is senger boy with the consent of the father, reversed, and the cause remanded. SOUTHWESTERN TELEGRAPH & TELE- 1. PARENT AND CHILD (§ 7*)-ACTIONS FOR Loss OF SERVICES-DEFENSES. Where a father consented to the employment of his minor child for one kind of work, the employer, changing the employment without the consent of the father to more dangerous kind of work was responsible to the father for loss of the services of the child and expenses incurred following directly from the changed employment. [Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. 7.*] 2. PARENT AND CHILD (§ 7*)-ACTIONS FOR Loss OF SERVICES-DEFENSES. In an action by a father for damages for injuries to his minor son while an employé of defendant, evidence held to show that the father consenting to the employment by defendant of and the performance by the minor by contract with appellant, without the knowledge or consent of the father, of other and more dangerous kind of work. Appellant pleaded denial, accident, contributory negligence, assumed risk, and injury resulting from the negligence of a fellow servant. A. P. Wozencraft, W. S. Bramlett, and D. A. Frank, all of Dallas, and G. R. Smith, of McKinney, for appellant. R. C. Merritt and H. C. Miller, both of McKinney, and R. L. Moulden, of Farmersville, for appellee. LEVY, J. (after stating the facts as above). The court charged the jury that "the undisputed evidence in this case as set forth above entitles the plaintiff to a verdict as a matter of law, and you will therefore return a verdict in favor of plaintiff for such actual damages, if any, as you may find he has sustained by reason of said injuries of said Ross Coffey received as above stated," and then follow instructions respecting the measure of damages. The evidence "as set forth above" in the court's charge, and on which the verdict was being directed, was that it appears that Ross Coffey, 17 years old, was employed with the consent of the father as messenger boy, and that on March 12, 1912, without the father's knowledge or consent thereto, the boy was specially hired by appellant's authorized agent, who knew the boy was a minor, to assist in the performance of outside construction work, such as stringing wires and setting poles, which was another and more dangerous kind of work than the father had agreed the boy should do and perform, and was injured while attempting to do such work on March 13, 1912. change of employment, there must be knowledge on the part of the father that the change was made. As said in the Redeker Case, supra, "plaintiff was not required to give defendant notice that his son was not permitted to serve as a brakeman." The evidence conclusively shows that there was no actual consent or acquiescence on the part of the father to the change of work, and the assignments are overruled. We have fully considered the remaining assignments, and think they should be overruled. The judgment is affirmed. [1, 2] The first and second assignments FIRST TEXAS STATE INS. CO. v. JONES. predicate error upon giving the charge quoted, upon the ground that there was sufficient (No. 1311.) evidence to raise an issue of fact of wheth- (Court of Civil Appeals of Texas. Texarkana. April 23, 1914.) INSURANCE (§ 668*) - ACTION ON POLICY – QUESTION FOR JURY. In an action upon an accident policy, evidence held to make it a question for the jury whether a loss, to the insured was the result of sickness or of an accident within the meaning of the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*] Appeal from Grayson County Court; J. Q. Adamson, Judge. Action by H. M. Jones against the First Texas State Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. Head, Smith, Maxey & Head and J. F. Holt, all of Sherman, for appellant. J. H. Randell, of Denison, for appellee. WILLSON, C. J. Appellee sued appellant in a justice court, on a policy insuring him against loss as the result of accident or sickness, and on an appeal to the county court presecuted by appellant recovered judgment against it in the sum of $196.70. er or not the father knew that his son was engaged in the particular work he was doing at the time of injury. It is the general rule that where the parent consents to the employment of his minor child to do a certain kind of work, and the employer changes the employment, without the consent of the parent, to the performance of another and more dangerous kind of work, the employer is responsible to the parent for the consequences, resulting in loss of the services of the minor and expenses to the parent, fol. lowing directly from such employment. Ry. Co. v. Fort, 17 Wall. 553, 21 L. Ed. 739; Ry. Co. v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887; Ry. Co. v. Wood (Tex. Civ. App.) 24 S. W. 569; Cotton Mills v. King, 51 Tex. Civ. App. 518, 112 S. W. 132; Marbury Lbr. Co. v. Westbrook, 121 Ala. 179, 25 South. 914; Braswell v. Oil Mill Co., 7 Ga. App. 167, 66 S. E. 539. Applying this rule to the evidence in this case, which conclusively supports the charge, the court properly, we think, gave the peremptory instruction. There is not, as we find, the slightest proof tending to show consent on the part of the father to the change of work in evidence. According to the facts, the boy was put to the changed work of outside construction, admittedly more hazardous than the work of a messenger boy, on the 12th day of March, and injured in such changed work on the following morning. Appellant's manager admitted that he did not consult the father about the extra work before putting the boy to doing such work. And the father testified that he knew nothing about the boy's being put to construction work outside of his duties as messenger boy. The boy testified that he did not tell his father about it. While there is evidence that on the first day of the changed work the boy assisted in putting a telephone in the father's house, there is further evidence showing that the father did not know that his son assisted in the work In order to be an acquiescence in the lum The policy was issued December 5, 1911, in consideration of $1.90 then paid to appellant, and appellee's undertaking to pay it thereafterwards, on the 1st day of each month, $1.90 as a renewal premium. It contained stipulations as follows: (1) "Loss resulting wholly or partly from * bago, crick or lame back, sprain or strain of the back # is hereby classified as resulting from sickness, the original cause of such loss, or of the ailment causing the loss, notwithstanding." (2) "No payment of indemnity shall be made * for any disease or sickness contracted or beginning before this policy has been maintained in continuous force for five days after the first monthly renewal premium is due and actually paid." Appellee was a section hand on a railroad, and was injured December 31, 1911. He testified: "I was toting a cross-tie. It was he thought appellee was suffering from sickness or an injury. The witness further testified: "I found no broken bones, or cuts or bruises, and found him complaining of pains up and down his back. The pain was in the small part of his back, and he could not about 11 o'clock. We was in a cut, and I had a cross-tie on my shoulder. It was dark, and I was going along walking to keep out of the mud. I was stepping on these dry places, and missed one of them and fell in between the ties, and my head hit the tie. I had the tie on my shoulder, and that press-straighten up his neck. I would call it a ed me to the rail. Two men took the tie off of me. One throwed two ties together across the top and laid me down on it. They kept me laying there until 2 o'clock and then brought me home. I am a laboring man. I was in bed disabled until about the 21st of May. * I was hurt in the left hip, shoulder, and neck. There was no bruises on skin or anything, but there was swelling which was visible. It looked just like a sore place. * My back was hurt in the lower part. I do not know whether I had a sprain or not." * * * * * wrenched back-traumatic injury to the The judgment is affirmed. STONE & WEBSTER ENGINEERING COR- (Court of Civil Appeals of Texas. Texarkana. 1. MASTER AND SERVANT (§ 137*)-LIABILITY Appellant's contention was, and is, that it conclusively appeared from the testimony that the loss to appellee was the result of sickness, and not of an accident, within the meaning of the stipulation in the policy first set out above, and that therefore, by force of the other stipulation set out, it appeared as a matter of law that it was not liable to appellee. This insistence, as it is made in the brief, is based on the testimony of the witness Dr. Fleming, to the exclusion of the testimony of appellee as a witness in his own behalf. Of course, the trial court in determining the contention in the first instance should not have ignored the testimony of appellee, nor should we ignore it in reviewing his action. If, however, Dr. Fleming's testimony was all there was in the case, we would be of the opinion it made a question for the jury (Kenny v. Ins. Co., 136 Iowa, 140, 113 N. W. 569), and therefore that the trial court did not err when he overruled the contention. Indeed, it rather appears from the statement in its brief that appellant's insistence to the contrary may have been due to an unwarranted construction it gave to Dr. Fleming's testimony. After that witness had testified that he treated appellee during four months, during which time he was confined to his bed and suffered from "his head, shoulders, back, and hips," he was asked this question: "Give me a history of the case. Was he suffering from bodily injury, or was it sickness he was suffering from and not an injury?" And replied: "That is my opinion." Construing the question and answer, appellant in its brief quotes the witness as saying: "It is my opin-doubletree to fly back, striking deceased in the ion that it was sickness he was suffering from, and not an injury." It is plain it might as reasonably be said that the answer of the witness was: "It is my opinion that it was an injury he was suffering from, and not sickness." It is apparent, we think, that the reply of the witness did not answer the question propounded to him, and left the court and jury without information as to whether Plaintiff's intestate was an employé of defendant, an engineering company, which was engaged in stringing an overhead feed wire for an electric car, and, at the time of his death, had charge of a team of mules hitched to the forward end of the wire to drag it along and pull it off the reel, which was located one half ed, the men in charge thereof, after starting mile away. the signal along the line notifying deceased to quit pulling, "snubbed" the wire, or tied it around a pole, preparatory to attaching it to another reel. Deceased never received the signal, and consequently kept pulling until the clevis which fastened the end of the single The reel having become exhaust the doubletree broke, causing the head and killing him. Held, that it was the primary and nondelegable duty of defendant to exercise ordinary care to distribute a sufficient number of men along the highway for the purpose of transmitting signals from one end of the line to the other, since the supplying of such line of communication was essential to the safety of deceased. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*] 2. MASTER AND SERVANT (§ 106*)-LIABILITY | poles set in the ground along the right of FOR INJURY TO SERVANT DUTY TO FUR- way. A team of mules driven by Goodman NISH SAFE APPLIANCES. Where a master hired a team from a third party and placed a servant in charge as driver, it was the master's duty to exercise ordinary care to furnish such servant a reasonably safe doubletree, the master being as much responsible for its condition as though it were its own property. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dec. Dig. 8 106.*] 3. TRIAL ( 203*)-INSTRUCTIONS. There was no error in refusing defendant's requests instructing the jury to find for it as to certain acts of negligence set forth in the petition, where the court did not make those allegations grounds of recovery in the instructions which he gave. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.*] 4. EXCEPTIONS, BILL OF (§ 8*)-SUFFICIENCY. Bills of exceptions complaining of the admission of testimony, not showing what testimony was objected to, were too indefinite to be considered. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. § 8.*] 5. TRIAL (8 253*)-INSTRUCTIONS. was on this occasion hitched to the forward end of the wire, and pulled the wire from the reel. At intervals the wire was by other employés thrown over the cross-arms, and then more of it was unwound as before. On this occasion the wire was being strung along one of the streets in Oak Cliff, and had progressed till practically all of the wire had been pulled from the reel and the employés in charge of that end were ready to tie on to the next preceding strand. The testimony shows that this strand of wire to which the team was hitched was approximately a half mile long. Smith and Vaughan, two employés, were in charge of the reel. When Smith discovered that the wire was nearly off the reel, he gave a signal to Vaughan, to be passed on down the line, indicating that Goodman was to stop. Vaughan testified that he passed the signal on to another employé by the name of Behrens. There is no evidence as to whether Behrens transmitted this signal or not. But about this time the team ceased to pull; and Smith and Vaughan, thinking that this stop was due to Goodman's having received the signal, began to connect the two ends of the wire. The stop, however, lasted only a very few minutes, when the wire again began to move. Vaughan then ran out into the street, several feet distant, and gave another signal. Smith, in the meantime, "snubbed" the wire; that is, he tied that end around a post, so that it could not be moved. It appears from the evidence that Goodman never, in fact, received any of the signals. He was something like a half mile distant from Smith and Vaughan, and depended upon signals for notice as to when they wanted him to stop. It also appears that he was approaching at that time a crossing over the line of the Dallas & Ft. Worth Interurban Railroad. His team was connected with the wire by means of a long rope tied to the doubletree. In order to pull the wire as far as possible without crossing the Dallas & Ft. Worth Interurban, he would pull until his team reached the track, then stop and shorten the rope, and pull again up to the HODGES, J. In June, 1912, J. W. Good-track. Goodman, being in ignorance of the man died as the result of injuries received fact that the wire had been "snubbed" at while employed in the service of the appel- the other end of the line, continued to urge lant, and this suit was instituted by his wife his mules forward. One of them pulled his and children to recover the statutory damag-end of the doubletree ahead of the other. es. A trial before a jury resulted in a verdict in favor of the plaintiffs below for the sum of $3,000. In an action for the death of a servant, a teamster, caused by a clevis breaking, causing the doubletree to fly back and strike him, a request that, if the team was not controlled by defendant, but under the control of the servant, and that if defendant did not assume the custody and inspection of the doubletree, but left such to the servant, and if the servant was an experienced teamster and familiar with the doubletree, to find for defendant, was prop erly refused, because ignoring another ground of liability submitted, and also because there was no evidence that the servant had the exclusive control of the doubletree, and that it was his duty to inspect it. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] Appeal from District Court, Dallas County; J. C. Roberts, Judge. Action by Alva Goodman and others against the Stone & Webster Engineering Corporation. From a judgment for plaintiffs, defendant appeals.. Affirmed. Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees. The facts show that at the time the injury referred to was inflicted the appellant was engaged in stringing an overhead feed wire for an electric car line running from Dallas to Waxahachie. Preparatory to being used, the wire had been wound on a reel, and, in being placed in position, was unwound and pulled over cross-arms attached to upright The singletree of the forward mule was fastened to the end of the doubletree by means of a clevis, and while in this position the clevis pulled out, and the end of the doubletree flew back and struck Goodman, inflicting the injuries from which he died. The evidence justifies the conclusion that the stop which occurred immediately after the first signal given by Smith and Vaughan was for the purpose of shortening the rope, and not in response to those signals. about 11 o'clock. We was in a cut, and I * he thought appellee was suffering from sick- The judgment is affirmed. STONE & WEBSTER ENGINEERING COR- (Court of Civil Appeals of Texas. Texarkana. 1. MASTER AND SERVANT (§ 137*)-LIABILITY Appellant's contention was, and is, that it conclusively appeared from the testimony that the loss to appellee was the result of sickness, and not of an accident, within the meaning of the stipulation in the policy first set out above, and that therefore, by force of the other stipulation set out, it appeared as a matter of law that it was not liable to appellee. This insistence, as it is made in the brief, is based on the testimony of the witness Dr. Fleming, to the exclusion of the testimony of appellee as a witness in his own behalf. Of course, the trial court in determining the contention in the first instance should not have ignored the testimony of appellee, nor should we ignore it in reviewing his action. If, however, Dr. Fleming's testimony was all there was in the case, we would be of the opinion it made a question for the jury (Kenny v. Ins. Co., 136 Iowa, 140, 113 N. W. 569), and therefore that the trial court did not err when he overruled the contention. Indeed, it rather appears from the statement in its brief that appellant's insistence to the contrary may have been due to an unwarranted construction it gave to Dr. Fleming's testimony. After that witness had testified that he treated appellee during four months, during which time he was confined to his bed and suffered from "his head, shoulders, back, and hips," he was asked this question: "Give me a history of the case. Was he suffering from bodily injury, or was it sickness he was suffering from and not an injury?" And replied: "That is my opinion." Construing the question and answer, appellant in its brief quotes the witness as saying: "It is my opin-doubletree to fly back, striking deceased in the ion that it was sickness he was suffering from, and not an injury." It is plain it might as reasonably be said that the answer of the witness was: "It is my opinion that it was an injury he was suffering from, and not sickness." It is apparent, we think, that the reply of the witness did not answer the question propounded to him, and left the court and jury without information as to whether Plaintiff's intestate was an employé of defendant, an engineering company, which was engaged in stringing an overhead feed wire for an electric car, and, at the time of his death, had charge of a team of mules hitched to the forward end of the wire to drag it along and pull it off the reel, which was located one half ed, the men in charge thereof, after starting mile away. The reel having become exhaustthe signal along the line notifying deceased to quit pulling, "snubbed" the wire, or tied it around a pole, preparatory to attaching it to another reel. Deceased never received the signal, and consequently kept pulling until the clevis which fastened the end of the single the doubletree broke, causing the head and killing him. Held, that it was the primary and nondelegable duty of defendant to exercise ordinary care to distribute a sufficient number of men along the highway for the purpose of transmitting signals from one end of the line to the other, since the supplying of such line of communication was essential to the safety of deceased. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*] |