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It is the misfortune of our
statute was enacted to require stricter dili- | as suggested. gence and better effort to effectuate the system which is to be laid to the imperfecsafety of employés. The rule had been, as it tion of human nature. Juries make a differis stated in 1 White's Personal Injuries on ent application of the same state of facts Railroads, 253, that "it was not incum- under our law in cases of the highest imbent upon the employer to adopt every new portance, yet this uncertainty of uniform reinvention useful in the business which might sult has never been assigned as ground for serve to lessen the danger," and that he was nullifying the law. "not bound to furnish either the newest,  The point made that the motion in arsafest, or best appliances." And so our Su- rest should have been sustained because the preme Court had stated it. Huhn v. Rail- petition did not contain the names of the road, 92 Mo. 440, 4 S. W. 937; Smith v. beneficiaries and facts from which the measFordyce, 190 Mo. loc. cit. 24, 88 S. W. 679. ure of damages could be ascertained was not This rule of mere ordinary care to select ap-mentioned at the trial, nor in the motion pliances reasonably safe, in the instance of in arrest. Johnson v. Mining Co., 171 Mo. switch blocks, has been changed. App. 134, 156 S. W. 33, is not applicable, since there the point was made by demurrer. Under the Federal Liability Act, it is held that the beneficiaries should be ascertained, and the verdict should apportion the damages; but, if that is not done, and no exception taken on that account, it is waived, and a verdict in a lump sum will be sustained. Hardwick v. Railroad, 168 S. W. 328, not yet officially reported.
We think the judgment should be affirmed. All concur.
But it is said the Legislature should have laid down some rule or mode whereby the "best known appliances" might be found and selected. It is more than probable that, if such task had been assumed, the force and effect of the law would have been lessened, or its "uncertainty" have been increased.
It makes nothing against the statute that different juries will not agree on the fact of what is, or which is, "the best known appliance." Different juries doubtless will do
TEXAS & N. O. R. CO. v. COOK. (No. 5373.) (Court of Civil Appeals of Texas. Austin. May 6, 1914.)
1. JUSTICES OF THE PEACE (§ 174*)—APPEALS TO COUNTY COURT-AMENDED PLEADINGS.
Where the amended account, filed in the county court on appeal from a justice's judgment, only amplified and enlarged the grounds of negligence originally alleged as a ground for recovery, and the county court determined that all the matters presented by the amended ac
count had been orally pleaded in justice's court,
refusal to strike out the amended account was proper.
[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]
2. EVIDENCE (§ 481*)-NONEXPERT WITNESSES -STATEMENT OF FACTS.
A nonexpert may testify that the engines of a railroad company throw out more or less sparks.
[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. § 481.*] 3. RAILROADS (§ 485*)-FIRES-LIABILITY.
Though a railroad company need only exercise ordinary care to equip its engines with suitable spark arresters, yet where, in an action for loss of property by fires set by sparks, there was no evidence by the company on that issue, it was not reversible error to charge that it was its duty to use suitable spark arresters. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.*] 4. RAILROADS (§ 480*)- FIRES - BURDEN OF PROOF.
Proof that sparks escaped from a railroad engine and destroyed property by fire, either directly or indirectly, established a. prima facie case of actionable negligence of the railroad company, and to escape liability it must show that the engine was equipped with proper spark arresters, and that the same were in good repair, and that the company exercised reasonable care to keep the same in good repair.
[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1709-1716, 1733; Dec. Dig. § 480.*]
 The first assignment of error complains of the action of the court in failing to strike out the amended account filed by appellee, the grounds of said motion being that said amended account set up a new cause of action, in that it contained other allegations of negligence than those set forth in the original account, and increased the amount sued for. Appellee, however, claimed that all of these matters had been orally pleaded in the justice's court, whereupon the court heard evidence as to what was in fact pleaded by him in the justice's court, after which he struck out several of the allegations contained in the amended account. Appellant claimed that it was surprised and not prepared to go to trial on said amended account, but made no motion to continue. In the first place, the amended account did not set up any new cause of action, but only amplified and enlarged the grounds of negligence originally alleged. Besides this, the court must have determined that all of these matters had been orally pleaded in the justice's court, for which reasons we overrule this and the following six assignments, complaining of the action of the court in this respect.
Appeal from Anderson County Court; E. signment. V. Swift, Judge.
Action by J. M. Cook against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Baker, Botts, Parker & Garwood, of Houston, and P. W. Brown, of Palestine, for appellant. Miller & Miller, of Athens, for appellee.
 Nor did the court err in permitting the witness Torrance to testify over appellant's objection that the spark arresters on appellant's engines running by Frankston in September, 1910, were in bad condition, and threw out sparks; the grounds of objection being that the witness was not an expert. This witness was not only shown to be an expert, but, in addition thereto, testified that the majority of the spark arresters on appellant's engines going by Frankston in September, 1910, were defective and threw out more or less sparks, which last fact it was competent to prove, even by a nonexpert witness. Hence we overrule the eighth as
 While it is true that railway companies are only required to exercise ordinary care to equip their engines with suitable spark arresters, still, where there is no evidence offered by the company on this issue, it is not reversible error to charge that it was its duty to use suitable arresters thereon. Therefore we overrule the ninth
and tenth assignments complaining of the. charge in this respect
 By its eleventh assignment appellant urges that the court erred in the following paragraph of its charge:
the evidence that at the time alleged sparks and "Now, if you believe from a preponderance of fire did escape from one of defendant's locomotives and burned said house and corn, either directly setting fire to said house and corn, or by being communicated by combustible material on the track of defendant, then you are instructed that such facts constitute a prima facie case of negligence on the part of the defendant company; it then devolves upon the defendant to overcome said prima facie case of negligence by proof that defendant's said locomotive which set out the fire, if it did, was equipped with
resulted in a verdict and judgment in behalf of appellee. The case was appealed to the county court, and judgment again went in behalf of appellee for the sum of $182.50, from which this appeal is prosecuted.
RICE, J. This suit was brought in the Justice's court by appellee against appellant, to recover the sum of $157 on account of the negligent burning of a house, containing 50 bushels of corn, belonging to him, situated near Frankston on the line of appellant's railway, which it was claimed was burned through the negligence of appellant. A trial
proper spark arresters, and that the same were in good repair and working order, and that the defendant had exercised reasonable care to keep same in good repair."
A similar charge to this was given by
In the present case, we think the evidence justified the jury in finding that the fire originated from sparks escaping from appellant's passing engine, setting fire to a stump on the right of way, which was subsequently communicated to the house in question. Appellant offered no evidence whatever going to show that its engines were properly equipped with spark arresters, so that the charge could not, under the circumstances, have been improper, even if the law was as appellant contends, which is not the case. assignment is overruled.
the trial court in the case of Railway Co. v. Horne, 69 Tex. 643, 9 S. W. 440, and Mr. Chief Justice Willie in discussing same says:
"There was no error in the charge complained of. It is in accordance with the decisions of this court. We are aware that numerous authorities can be found in which it is made the duty of the party complaining of injuries done to his property by reason of fire kindled from such sparks to show negligence on the part of the company, but we think that those decisions which throw the burden upon the company of showing that the sparks did not escape because of any negligence on its part are best supported by reason. They place the burden of proof upon the party having the means of producing the necessary evidence upon the subject. The employés know the condition of the engine and of the appliances used to prevent the escape of fire, and they should be informed as to whether these were sufficient for that purpose. The injured party would not, as a general thing, be possessed of any such information, and he could not ordinarily obtain it. To require him to make the proof would, in most instances, be a denial of justice, and would allow the party doing the wrong to escape by concealHence ing the facts which brought it about. our courts have adopted the salutory rule of presuming the existence of negligence against the party who has the means of disproving it, and fails to make use of them (Ryan v. Ry. Co., 65 Tex. 20 [57 Am. Rep. 589]), and have followed that line of decisions which cast the burden of proof in such cases upon the company; and, as we believe our former decisions upon the subject are founded upon good reason, we are not inclined to change the rule assumed by them"-citing cases.
The test of whether one is an independent contractor, or merely a servant or agent of the general contractor, is not whether they actually exercised control over the manner in which, done, but whether they had the right to do so. or the means by which, the work was to be
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]
See, also, Roman v. St. L. S. W. Ry. Co., 160 S. W. 431.
See, also, Gulf, Colorado & Santa Fé Ry. Co. v. Johnson, 92 Tex. 591, 50 S. W. 563, where a similar charge to the one under consideration was approved by Chief Justice Brown, who said, among other things that:
The word "willfully" sometimes means not merely voluntarily, but with a bad purpose; and from its use in connection with "know
"It is well settled in this state that in cases of this character, proof by the plaintiff that the injury complained of was caused from fire set out by sparks from a railroad locomotive while it was being operated upon the road constitutes a prima facie case, and, if not rebutted, en-ingly," in an instruction that, if defendants titles the plaintiff to recover. **The willfully and knowingly furnished material, charge * * did not shift the burden of which caused the place where plaintiff was proof from the plaintiff to the defendant, as is working to be inherently dangerous, they were claimed, but, as in every other case where a negligent, the jury might conclude the court was prima facie right is established, it called upon of the opinion there was some evidence that dethe defendant to meet the case made in order to fendants did this with a bad or evil intent, defeat the plaintiff's right of recovery. general rule of practice, it is not permissible for making it prejudicial; there being no such evithe court to instruct the jury that the proof of certain facts will establish the fact of negligence upon which the action may be maintained, but in this class of actions a different rule has been established by the decisions of the Supreme Court of this state, and the charge before copied is not subject to the objection that it is upon the weight of the evidence"-citing cases.
But Chief Justice Willie remarked in the case first quoted from:
"Even had the charge been erroneous in this respect, it did no harm, for the prima facie case of negligence made out by the plaintiff was not rebutted by the defendant with a particle of evidence of any character whatever."
3. TRIAL (§ 252*)-MISLEADING INSTRUCTIONS -"WILLFULLY.'
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*
For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836.]
4. APPEAL AND ERROR (§ 1050*)—HARMLESS
ERROR-ADMISSION OF EVIDENCE.
Even if a statement of witness that boards bore concrete stains was a conclusion, its admission was harmless; the same testimony substantially having been given by other witnesses without objection.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]
5. EVIDENCE (§ 513*)-OPINIONS-EXPERTS. the case resulted in a verdict and judgment in favor of the defendant Gilkison, and in favor of the plaintiff against Corrigan, Lee & Halpin, as a firm, and against S. N. Lee and
Witness being a carpenter familiar with the strength of the character of the lumber in question, and having qualified as an expert to testify to the relative strength of a good piece of ship-lap lumber and the piece alleged to have J. F. Halpin individually, for the sum of given way, causing plaintiff's fall from a col-$2,000; Bernard Corrigan, not being personumn, and whether or not such piece was strong enough to support plaintiff's weight, his testimony that, had a good piece of ship-lap been used in construction of the column, it would not have broken with a man of plaintiff's weight was admissible.
ally served with citation, did not answer. From the judgment rendered against them the appellants appealed.
 The first assignment of error complains
of the court's refusal to give a special charge, requested by appellants at the conclusion of all the evidence, directing the jury to return a verdict in their favor. The proposition advanced under this assignment is that the evidence adduced conclusively showed that the defendant Gilkison was an independent contractor, in charge of the work upon which plaintiff was injured; that plaintiff was employed by Gilkison and under his exclusive control at the time he was injured, and there
fore the peremptory instruction should have been given. We have reached the conclusion that this assignment and proposition should not be sustained. It is well settled in this state that, when the evidence is sufficient to make an issue, the question must be submitted to the jury. This is true, it is held by the Supreme Court, even though it might be that the trial judge or Court of Civil Apappel-peals would set aside a verdict found upon the evidence. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399. In Cyc. p. TALBOT, J. This suit was brought by the 1547, the subject of independent contractors appellee Heubler against Bernard Corrigan, is discussed, and it is there said that the S. N. Lee, and J. F. Halpin, and the firm of test of the relationship "is whether the emCorrigan, Lee & Halpin, composed of said ployé represents his employer as to the rethree persons, and against W. D. Gilkison, to sult of the work only or as to the means as recover damages for personal injuries alleg-well as the result. If the employé is merely ed to have been received by plaintiff on the subject to the control or direction of the own2d day of October, 1911, while in the employer or his agent as to the result to be obtainof all of said defendants, by falling from a ed, he is an independent contractor. If the temporary upright structure used in connec- employé is subject to the control of the emtion with certain work being done in the ployer as to the means, he is not an indecourse of the construction of what is known pendent contractor." This is substantially as the Dallas and Oak Cliff Viaduct; the said the test laid down in Wallace v. Southern Corrigan, Lee & Halpin being the general Cotton Oil Co., supra. In that case the quescontractors for the building of said viaduct. tion was whether the man Davis was a serv The defendant Gilkison answered by general ant of the Cotton Oil Company, or an indedemurrer, general denial, and pleas of con- pendent contractor "engaged in a pursuit free tributory negligence and assumed risk. The from the control of said company." Here defendants Corrigan, Lee & Halpin answered the question is: Was Gilkison a servant of by general demurrer, special exceptions, gener- Corrigan, Lee & Halpin, or such a contractor? al denial, pleas of contributory negligence, and While the evidence may not, perhaps, be quite assumed risk. These defendants also pleaded so strong to establish that the relationship that Gilkison was an independent contractor existing between Gilkison and Corrigan, Lee on that portion of the work on which plain- & Halpin was that of master and servant as tiff was engaged at the time he was hurt; was the evidence in Wallace's Case to estabthat plaintiff was in the employ and under lish such relationship, yet, without expressthe direction of said independent contractor, ing or intimating any opinion as to what and was not in the employ of Corrigan, Lee weight should be given to it by a jury, we & Halpin, nor in any way subject to their think it was sufficient to take the question supervision, direction, or control. Plaintiff to the jury. by supplemental petition denied that Gilkison was an independent contractor, but was subject to the orders and control of defendants Corrigan, Lee & Halpin. The trial of
There is no question but that Corrigan, Lee & Halpin were the general contractors engaged in the construction of the viaduct, and that whatever relation Gilkison bore to that
[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. § 513.*] 6. MASTER AND SERVANT (§ 268*)-INDEPENDENT CONTRACTORS-EVIDENCE.
A contract by a firm with a county to do work, providing against the firm subletting without the written consent of the county, in connection with evidence that there was no such consent, is admissible on the issue of one doing part of the work for the firm, being an independent contractor.
[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. § 910; Dec. Dig. § 268.*]
Appeal from District Court, Dallas County; J. C. Roberts, Judge.
Action by J. H. Heubler against Corrigan, Lee & Halpin and others. From a judgment for plaintiff against the named defendants, they appeal. Reversed and remanded.
Burgess, Burgess & Chrestman, of Dallas, for appellants. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for lees.
firm existed by virtue of a parol or verbal contract, and not by one in writing. Gilkison was irresponsible financially, and Corrigan, Lee & Halpin furnished all the material used by him and paid the employés working under him, as they paid other employés working on the viaduct. The contract entered into between Dallas county and the firm of Corrigan, Lee & Halpin for the construction of the viaduct provides that the latter "will not assign, transfer or sublet the aforesaid work, or any part thereof, without the written consent of the commissioners' court," and there was no proof of such consent. Some time during the progress of the work, the time not being definitely, and by direct testimony, shown, the firm of Corrigan, Lee & Halpin put employés not claimed to have been employed by Gilkison upon the work he was doing, and informed him that he was indebted to them in the sum of $600 or $800. At this time Gilkison gave up the contract he claims to have made with Corrigan, Lee & Halpin, and he says: "I did not stay on the work after that." At the time of the trial Gilkison had not paid the $600 or $800 owed by him, nor had he given to Corrigan, Lee & Halpin his note or other written evidence of said indebtedness. In this connection he testified:
"What I mean to say was that they simply wiped out the contract, and I had a moral obligation of about $800 with Corrigan, Lee & Halpin, and Mr. Halpin told me if I ever got in a financial condition to pay that $800 he would expect me to pay it."
It further appears that appellants' physician and surgeon who treated all their men when treatment was necessary, treated the appellee when he was hurt, at the instance of appellants, and that they paid him for his services. This physician testified:
"When they called me down there to treat Mr. Heubler, I went down there and treated him just like I did on other calls."
There was also some testimony tending to show that appellants, on more than one occasion, exercised authority and control over Gilkison in directing where he and the men under him should work, how the work should be done, and how the materials should be used in doing it, inconsistent with the idea that the work was under the exclusive control of Gilkison. These, we think, were facts and circumstances to be considered by the jury in connection with, perhaps, other circumstances shown, in determining the relation Gilkison bore to Corrigan, Lee & Halpin and justified the submission of that sue for their determination.
This charge is attacked by appellants' fourth assignment of error, and its correctness challenged on the ground, among others, because it authorized the jury to find in favor of the plaintiff, Heubler, against the defendants Corrigan, Lee & Halpin, if they should find that said defendants exercised control over the manner or over the means in and by which the work was to be done upon which plaintiff was engaged, even though said defendants had no right to so control the manner or means of doing said work, and even though the jury did not find that they had such right. We think this charge went too far, and is materially erroneous in telling the jury, in effect, that, regardless of whether or not Corrigan, Lee & Halpin had the right to exercise control over the manner in which the work was to be done, or over the means by which it was to be done, yet, in either event, if Corrigan, Lee & Halpin exercised such right, Gilkison was not an independent contractor. The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cyc. p. 1547. This error was emphasized by the court's refusal to give a special charge requested by appellants' counsel embodying the above test, and requires a reversal of the case. The answers made by counsel for appellee to this error in the charge have been carefully examined and considered, but we do not think either of them sufficent to justify the overruling of the assignment complaining of it. We call attention to the fact that this error was also repeated in the third paragraph of the court's charge, wherein the facts which would authorize a verdict in favor of the defendants Corrigan, Lee & Halpin were attempted to be enumerated.
 The twelfth assignment of error complains of the following portion of the court's charge, namely:
"If you find and believe from the evidence that defendant W. D. Gilkison was an independent subcontractor under the law as it is hereinbefore given you, and that the plaintiff was not pin, but if you further find that said defendthe employé of defendants Corrigan, Lee & Halant firm controlled the method and furnished the material by which the work was being done by plaintiff at the time mentioned, and that such method or material, either alone or tois-gether, proximately caused such place where plaintiff was then working to be inherently dangerous, if it was inherently dangerous, and willfully and knowingly furnished such agenthat said defendants Corrigan, Lee & Halpin cy, if they did, to be used as it was being used defendants would be guilty of negligence." on said occasion in such employment, then said
 The court instructed the jury that: "If they believed from the evidence that the defendant Gilkison, in employing the plaintiff, Heubler, acted for and on behalf of the defendants Corrigan, Lee & Halpin, or if they found that defendants Corrigan, Lee & Halpin exercised, or had the right to exercise, control over the manner in which the work was to be done upon which plaintiff was engaged at the time he was alleged to have been injured, or over the means by which it was to be done, then, in ei-dence authorizing a finding that Corrigan,
If this was a proper issue to be submitted at all in this case, which may be seriously questioned, then we think there was no evi