decide to be the best known appliance or invenbe the best known appliance or invention. It is tion another court or jury might decide not to utterly impossible for any one from time to time, or at any time, to ascertain what is the best known appliance or invention. One court not blocking its frogs with a certain appliance, or jury might hold a railroad company liable for and another court or jury might hold the same or another railroad company liable for using the selfsame appliance."

raised for the first time in the appellate, enforced. What one court or one jury might court. Burns v. Patrick, 27 Mo. 434; Childs v. Railroad, 117 Mo. 414, 23 S. W. 373; State ex rel. v. Bland, 144 Mo. 534, 46 S. W. 440, 41 L. R. A. 297. Now if the statute in controversy is void for uncertainty, or is void for impossibility of execution, then a petition based upon it does not state a cause of action, and hence advantage may be taken of such fatal defect on appeal, though not before mentioned.

[4] The statute in dispute (section 3163, R. S. 1909) is quoted in the forepart of Judge TRIMBLE'S opinion, and the question we have now to determine is whether it is valid. Defendant claims it is void for uncertainty. We take some exception to defendant's mode of stating its objection. Neither the words nor the meaning of the statute is uncertain. Indeed, we think the very certainty of its expression and meaning is the thing that gives defendant a basis for the contention that it is void. That is to say, it so clearly commands the performance of the acts specified that their performance is said to be an impossibility, and in consequence the law is void; and that is really the course of defendant's argument. The particular parts are these words: That the company shall use "the best known appliances or inventions to fill or block all switchto prevent, as far as possible, the feet of employés being caught therein." Now there evidently is no uncertainty about the words and the meaning of the statute. It is undoubtedly true that, "where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern with reasonable certainty what is intended, they will pronounce the enactment void." State v. Light Co., 212 Mo. 101, 110, 110 S. W. 1079, 1082 (126 Am. St. Rep. 563). But that is not the condition in this case. We have not here a lot of words thrown together in such way as not to be intelligible. Nor is it a direction in intelligible language of a number of incongruous, inconsistent, and self-contradictory matters, as was the statute discussed and held void by the Supreme Court in an able opinion by Judge Williams, in State ex inf. v. Street Ry. Co., 146 Mo. 155, 47 S. W. 959.

es

But, though the words in question are intelligible, the question remains: Is it impossible, in any reasonable practical application, to comply with it? For, if a statute is such that it is "impossible to comply with its provisions, it will be held to be of no force and effect." People v. Briggs, 193 N. Y. 457, 459, 86 N. E. 522, 523; State v. Partlow, 91 N. C. 550, 49 Am. Rep. 652. So the objection to this statute is that it is not possible for railway companies to comply

with it. Defendant asks:

Our answer to this is that the Legislature realized it was dealing with and directing human agencies, not infallible, and, when it demanded the use of the best appliances, it meant the best according to the careful judgment of men qualified to judge of The best known such instrumentalities. does not necessarily mean that there shall be but one kind, or that that particular one shall be selected at the peril of the company, as there may be several of equal safety, the use of either of which would satisfy the terms of the statute. There might be several safety appliances or devices, and one cr more be known at a certain time as the best, as compared with the others, and yet it was said in argument, that might be, as some of the latter may, by experience and use, come to be known and considered before But we trial of a given case as the best. do not think such considerations should prevent a practical application of the statute. Culpability of a railway company would be judged by the status of things existing at the happening of an injury. The best appliances, the best methods, the latest improvements, the best to be had in the market, are closely related expressions in common use, and their practical fulfillment in ordinary contracts of the day has never been thought to be unreasonably difficult, much less impossible. Character of safety appliances in different conditions have been the subject of frequent discussion, and the use of terms similar to those in this statute have not been thought inapt.

Thus in 4 Elliott on RailSteinweg v. Erie Ry. Co., 43 N. Y. 123, 3 Am. roads, § 1472, "the expression is quoted from Rep. 673, that the most approved modes of construction and machinery in known use in the business and the best precautions in known practical use for securing safety" was the care required in case of spark arresters;

and in that case it will be seen the difficul-
ties suggested by defendant of application
of the present statute were not considered
as affecting the rule stated. The same au-
thor (volume 3, § 1224) speaks of “approved
appliances in general use." So 1 Shearman &
law as requiring all "known tests" as to the
Redfield on Negligence, § 45, speaks of the
loc. cit. 327, the Supreme Court refer to the
In Fitch v. Railroad, 45 Mo.
safety of cars.
duty of a railroad to show "that the best

machinery and contrivances were used."

"What is the best known appliance or invenIt is important to look to the former state tion for this purpose? How is it to be ascertained? Who is to decide it? It is perfectly of the law. Decker v. Diemer, 229 Mo. loc.

statute was enacted to require stricter dili- as suggested. It is the misfortune of our 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, safest, or best appliances." And so our Supreme Court had stated it. Huhn v. Railroad, 92 Mo. 440, 4 S. W. 937; Smith v. Fordyce, 190 Mo. loc. cit. 24, 88 S. W. 679. This rule of mere ordinary care to select appliances reasonably safe, in the instance of switch blocks, has been changed.

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

[5] The point made that the motion in arrest should have been sustained because the petition did not contain the names of the beneficiaries and facts from which the measure of damages could be ascertained was not mentioned at the trial, nor in the motion in arrest. Johnson v. Mining Co., 171 Mo. 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.

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. Ap-
pellant offered no evidence whatever going
to show that its engines were properly equip-
ped 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.

Hence this

Finding no error in the proceedings of the trial court, its judgment is in all respects af

firmed.
Affirmed.

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 CORRIGAN, LEE & HALPIN v. HEUBLER 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 concealing the facts which brought it about. Hence 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.

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:

(Court of
April

et al. (No. 7043.)

Civil Appeals of Texas. Dallas.
25, 1914. Rehearing Denied
May 23, 1914.)

1. MASTER and Servant (§ 284*)—INJURY_To
SERVANT-INDEPENDENT CONTRACTORS-EV-

IDENCE.

Evidence, in an action for injury to an employé held to make a question for the jury whether the person who employed plaintiff was an independent contractor, or merely a servant or agent of the general contractor.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*]

2. MASTER AND SERVANT (§ 88*)-INDEPEND

ENT CONTRACTORS-TEST OF RELATION.

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.*]

3. TRIAL (§ 252*)-MISLEADING INSTRUCTIONS

-"WILLFULLY."

"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 The word "willfully" sometimes means not out by sparks from a railroad locomotive while merely voluntarily, but with a bad purpose; it was being operated upon the road constitutes and from its use in connection with "knowa prima facie case, and, if not rebutted, en- ingly," in an instruction that, if defendants titles the plaintiff to **The willfully recover. 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. As a 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."

dence.

[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 Witness being a carpenter familiar with in favor of the defendant Gilkison, and in the strength of the character of the lumber in favor of the plaintiff against Corrigan, Lee & question, and having qualified as an expert to testify to the relative strength of a good piece Halpin, as a firm, and against S. N. Lee and 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 testi- ally served with citation, did not answer. mony that, had a good piece of ship-lap been From the judgment rendered against them used in construction of the column, it would not the appellants appealed. have broken with a man of plaintiff's weight was admissible.

[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.

[1] 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 therefore 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 Ap

Burgess, Burgess & Chrestman, of Dallas, for appellants. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appel-peals would set aside a verdict found upon lees.

the evidence. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399. In Cyc. p. 1547, the subject of independent contractors is discussed, and it is there said that the test of the relationship "is whether the employé represents his employer as to the result of the work only or as to the means as well as the result. If the employé is merely subject to the control or direction of the own

TALBOT, J. This suit was brought by the appellee Heubler against Bernard Corrigan, S. N. Lee, and J. F. Halpin, and the firm of Corrigan, Lee & Halpin, composed of said three persons, and against W. D. Gilkison, to recover damages for personal injuries alleged to have been received by plaintiff on the 2d 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 temporary upright structure used in connection with certain work being done in the course of the construction of what is known as the Dallas and Oak Cliff Viaduct; the said Corrigan, Lee & Halpin being the general contractors for the building of said viaduct. The defendant Gilkison answered by general demurrer, general denial, and pleas of contributory negligence and assumed risk. The defendants Corrigan, Lee & Halpin answered by general demurrer, special exceptions, general denial, pleas of contributory negligence, and assumed risk. These defendants also pleaded that Gilkison was an independent contractor on that portion of the work on which plaintiff was engaged at the time he was hurt; that plaintiff was in the employ and under the direction of said independent contractor, and was not in the employ of Corrigan, Lee & Halpin, nor in any way subject to their supervision, direction, or control. Plaintiff by supplemental petition denied that Gilki- There is no question but that Corrigan, Lee son was an independent contractor, but was & Halpin were the general contractors ensubject to the orders and control of defend-gaged in the construction of the viaduct, and ants Corrigan, Lee & Halpin. The trial of that whatever relation Gilkison bore to that

ed, he is an independent contractor. If the employé is subject to the control of the employer as to the means, he is not an independent contractor." This is substantially the test laid down in Wallace v. Southern Cotton Oil Co., supra. In that case the question was whether the man Davis was a servant of the Cotton Oil Company, or an independent contractor "engaged in a pursuit free from the control of said company." Here the question is: Was Gilkison a servant of Corrigan, Lee & Halpin, or such a contractor? While the evidence may not, perhaps, be quite so strong to establish that the relationship existing between Gilkison and Corrigan, Lee & Halpin was that of master and servant as was the evidence in Wallace's Case to establish such relationship, yet, without expressing or intimating any opinion as to what weight should be given to it by a jury, we think it was sufficient to take the question to the jury.