The defendant answered by general demur-fied that when this money was paid to him rer and general special denial of the allegations of the petition. He also pleaded the statute of limitation of five years, and pleaded improvements placed by him on said land in good faith, and asked, in event he did not have title to the land, that he recover the value of said improvements.

The evidence sustains the following fact when, according to the recitation in the conclusions:

It is well settled that all of the requirements of the statute must be concurrent; and, unless the deed under which the occupant claims is of record during all of the time of his occupancy necessary to complete the five-year period, the requisites of the statute are not met. The evidence being undisputed upon this issue, the court did not err in not submitting it to the jury. The question of Daniels having a reasonable time after procuring his deed to file it for record cannot arise, when the time in which he allowed it to remain unrecorded is as long as is shown by this record. The following cases sustain the action of the court in refusing to submit the issue of limitation: Medlin v. Wilkins, 60 Tex. 418; Porter v. Chronister, 58 Tex. 56; Cook v. Dennis, 61 Tex. 248; Heflin v. Burns, 70 Tex. 353, 8 S. W. 48; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609; Van Sickle v. Catlett, 75 Tex. 409, 13 S. W. 31; Sorley v. Matlock, 79 Tex. 307, 15 S. W. 261; Gillum v. Fuqua, 61 S. W. 938.

The finding of the jury complained of by the fourth assignment of error is amply supported by the evidence, and the assignment attacking the finding, on the ground that it is contrary to the evidence, cannot be sustained.

The findings complained of by the fifth and sixth assignments are not material, and it therefore is unnecessary to determine whether or not such findings are supported by the evidence.

We are of opinion that the judgment of the court below should be affirmed; and it has been so ordered. Affirmed.

ORANGE LUMBER CO. v. ELLIS. (Court of Civil Appeals of Texas. Galveston. Jan. 30, 1911. Rehearing Granted Jan. 1, 1912. On Motion for Rehearing, Jan. 18, 1913. Appellant's Motion for Rehearing Denied Feb. 6, 1913.)

1. APPEAL And Error (§ 722*)—ASSIGNMENTS OF ERROR-SUFFICIENCY-STATUTES.

Statutes and rules regarding the form and sufficiency of assignments of error should be liberally construed, and not so as to cut off the approach of parties seeking relief in good faith for errors prejudicial to them in the trial court.

[2] The second assignment of error assails the judgment in favor of plaintiffs for $621 damages for timber cut from the land, on the ground that the evidence shows that said timber was cut and removed from the land more than two years before this suit was filed. The proposition under this as[Ed. Note.-For other cases, see Appeal and signment is as follows: "In actions of tres-Error, Cent. Dig. §§ 2990-2996; Dec. Dig. 722.*1 pass to try title, damages cannot be assessed for injuries done to the land over two years prior to the commencement of the suit." The record shows that all of the timber, for the value of which plaintiffs recovered the sum of $621, was cut and removed from the land more than two years before the suit was commenced. The appellant did not plead limitation against plaintiffs' claim for the value of the timber.

Plaintiff's suit is more than one of trespass to try title and for damages incident to the trespass. It is also a suit to revoke a power of attorney for fraud in its procurement, and to recover from defendant the value of timber fraudulently obtained and disposed of by him under said power of attorney. We think it clear that in a suit of this kind limitation, if available as defense,

must be pleaded.

We think it clear that the $621 was found by the jury to be the value of the timber cut from the one-half of the land owned by the appellees, and not the timber cut from the whole tract of land. The plaintiff Floyd did not seek to recover for the timber cut from his half of the land. It was agreed by the parties that the timber cut from all of the land by appellant was worth $1,242, and, the verdict of the jury being for exactly onehalf of this amount, it is evident that this was the value found by them of the timber cut from appellees' half of the land. This disposes of the question presented by the third assignment.

2. MASTER AND SERVANT (§ 288*)-PERSONAL
INJURIES-ASSUMPTION OF RISK-EVIDENCE.
In an action for personal injuries caused
by a slab flying back from a lath machine, the
question whether the plaintiff assumed the risk
held, under the evidence, for the jury.
of injury from certain defects in the machine

[Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 1005, 1069-1088; Dec. Dig. § 288.*]

Appeal from District Court, Orange County; W. B. Powell, Judge.

Action by J. S. Ellis against the Orange Lumber Company. Judgment for plaintiff, and defendant appeals. Questions certified to the Supreme Court (150 S. W. 582). Af

firmed.

J. T. Adams, of Orange, W. O. Huggins and Baker, Botts, Parker & Garwood, all of Houston, for appellant. Holland & Holland, of Orange, for appellee.

REESE, J. This is an action by J. S. Ellis against the Orange Lumber Company to recover damages, laid at $15,000, for personal injuries alleged to have been sustained by him while operating a lath machine as a servant of defendant in its mill. A trial with a jury resulted in a verdict and judgment for $5,500. Defendant filed its motion for a new trial, which was overruled, and it prosecutes this appeal.

It is alleged in the petition that, while engaged in feeding slabs into the machine, a piece of a slab was thrown back with such

As the facts in this regard are presented by the evidence, even with the assistance of such explanation as is given in the brief, we have not, and cannot present, a very clear and definite idea of the character of the machine, and of the exact cause of the accident; but the evidence sufficiently shows that it was due to some one or more of the defects in the machine alleged in the petition; and the evidence justifies the further conclusion that the accident was occasioned by the negligence of the appellant in some one or more of the particulars charged. On each of the defenses of contributory negligence and assumed risk, the evidence was such as to present an issue for the jury, and to authorize their finding against appellant.

force as to go through a board an inch and a | and proven, the amount of the verdict is quarter thick, behind which appellee was very moderate. standing, and to strike him on the head and eye, so injuring the eye that it had to be removed, and fracturing his skull, and that his other eye was seriously and permanently impaired and injured. It was alleged that the machine at which appellee was working was unsafe and unfit for the purpose for which it was used; that it was old and worn and out of repair, was not bolted to the foundation and made steady; that the machine, in carrying slabs through the saw, was not protected by any sufficient covering to keep splinters from being thrown back, and be cause the rollers through which the slabs pass after passing the saws were not fitted with teeth or spikes to hold the slabs steady, but the teeth or spikes on the rollers provided for that purpose were permitted to be worn off or knocked off and were not replaced, and that the rollers on the machine had been taken off by defendant and replaced with others not suited for the purpose; that all of such defects were well known to defendant, and their existence due to its want | of ordinary care, and were the sole cause of appellee's injuries. Defendant answered by general denial and pleaded contributory negligence and assumed risk on the part of plaintiff, alleging that he was foreman in charge of the work of operating this machinery, and charged with the duty of making such repairs as were necessary, and that he was entirely familiar with the working of the machine, knew all about the alleged defects, if, in fact, they existed, and the danger arising therefrom, if any, and that the accident was one of the risks voluntarily assumed by him.

[1] We are met, in limine, by a motion of appellee to strike out practically all of the assignments of error for reasons stated in the motion, which it is not necessary to particularly repeat here. In the case of Land Co. v. McClelland Bros., 86 Tex. 190-192, 23 S. W. 1103, 22 L. R. A. 105, the general rule is stated that: "It is to be borne in mind that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions. It is certain that it was never intended to hedge either the Court of Civil Appeals or the Supreme Court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts." The rule is further emphasized in the opinion of Rice v. Dewberry, 93 S. W. 721. We refer to these cases to show the general rule of construction of the rules with regard to assignments of error. In the light of the general principles stated, we think the assignments should be considered, and overrule the motion.

The following conclusions are supported by the evidence. At the time of the accident, appellee was in the employment of appellant, and was in charge of the work of op erating the lath machine. He seemed to be a sort of foreman in this work, with authority to direct the other men engaged therein. At the time of the accident, he was engaged in feeding slabs into the machine. There was a board one and a quarter inches thick placed across the machine just in front of him to protect the man feeding the machine from [2] The first assignment of error is that sawdust, splinters, etc., liable to be thrown the court erred in overruling appellant's back by the operation of the saws. While en- amended motion for the new trial, on the gaged in feeding a slab into the machine, in ground that there is no evidence upon which some way not very clearly shown, a piece of a verdict against defendant could properly be the slab was broken off and got on top of the rendered, and that the undisputed evidence saw, and was thrown back by the saw over shows that defendant is not liable. The asthe front rollers with such force as to go signment further sets out the particulars in through the board and to strike appellee on which the evidence does not support the verthe head and in the eye, injuring his head, dict; but the general proposition stated by and either entirely knocking out his eye, or the assignment is that the court erred in reso injuring it as to require the removal of fusing the motion for a new trial in that the eyeball. From this injury appellee suf- there is no evidence to support the verdict. fered greatly. The injury has, and will like- It was not necessary to split this complaint ly always, to some extent, impair his efficien- up into a number of assignments. It is the

different grounds of the complaint, if it be necessary. The assignments must be overruled. As we have said in our conclusions of fact, the evidence was sufficient to raise the issue as to appellant's liability, and to support the verdict. We cannot agree with appellant that, as a matter of law, upon the undisputed evidence, appellee assumed the risk of the accident which caused his injury. He had a general knowledge of the defects of the machine alleged by him; but we cannot say, as a matter of law, that he knew, or by the exercise of ordinary care must have known, of the danger arising from such defects. Nor was his employment such as to make him responsible for the defects or make it his duty to repair them. The defects were not such as he could have been expected to repair. The main burden of the case rests upon the roller which was substituted for the device for that purpose after the machine had been operated for awhile. The contention of appellant is that this substitute roller was safer and better than the device for which it was substituted. Appellee contended the contrary, and the evidence was such as to present an issue upon this point. This substitution was made by the superintendent himself, and certainly it was not the duty of appellee to change it; and, while he may have known that it was not as safe as the original one, he cannot be said, as a matter of law, to have known of the danger, from its operation, of some such accident as that which caused his injury. This disposes of the first, second, third, fourth, fifth, sixth, seventh, and eighth assignments of error, which are overruled.

and replaced with others not made with saiu machine, or suited to the purpose for which they were used, or was the result of one or more of said causes, if any, and you further find and believe that the defendant failed to use the care that a person of ordinary prudence would have used, under the circumstances, to have said machine in a reasonably safe condition, and that it was not in a reasonably safe condition, because of any or all of the facts and things stated, and that the failure of the defendant to have said machine in a reasonably safe condition, because of any or all of the facts and things stated, and that the failure of defendant to have said machine in a reasonably safe condition was negligence, as that term is hereinbefore defined, and that, but for such negligence, the injury would not have occurred, and that such negligence, if any, was the proximate cause of such injuries, then you should return a verdict for the plaintiff; and, unless you so find, your verdict should be for the defendant."

By the ninth assignment of error, the giving of this charge is complained of; and the several grounds of objection are set out by appropriate propositions. The first proposition is that there is no evidence in the record raising the issue that the machine was not sufficiently bolted to the foundation to cause it to be steady. The charge presented the issue of whether the machine was sufficiently bolted to the foundation to cause the same to be steady, by which the jury must have understood such fastening, whether by bolts or braces, or otherwise, as was sufficient to keep the machine steady. The evidence of appellee, we think, presented the negative of this issue. We cannot say from the evidence, that the issue of negligence in failing to have a cover on the machine to protect persons using it from an accident of this kind, was not presented. The question presented by the third proposition under the assignment was clearly an issue to be presented to the jury. The fourth proposition presents an objection to the charge that we think must be sustained-that is, that the existence of the defects in the machine, or at least some of them, is assumed in the charge

The court gave to the jury the following charge: "Now, gentlemen of the jury, if you should find and believe from the evidence that on or about the 12th of November, 1908, plaintiff, J. S. Ellis, was in the employ of the Orange Lumber Company, and, while engaged in feeding slabs to a lath machine, a portion of the lath or slab was violently thrown out of same and against and through a blind board, and against plaintiff, and struck plaintiff and inflicted upon him any of the injuries set out in his petition, and you further find and believe from the evidence that the cause of said lath or slab be--and the only issue submitted is as to ing thrown against plaintiff was because the machine being used was old and worn and out of repair, or because same was not sufficiently bolted to its foundation to cause same to be steady, or because the machine carrying slabs, and the slabs while passing through the saw, were not protected by a sufficient covering to keep same from being thrown therefrom, or because the rollers through which the slabs pass, after passing the saw, were not fitted with teeth or spikes to hold such slab steady, but that the teeth or spikes on said rollers were permitted to be worn or knocked off, and not replaced, or because the

whether they caused the injury. It is true that the defects in the machine referred to could not have caused the injury if they had not existed; but if the court had assumed, from the undisputed evidence, that the several defects existed, which, if the evidence justified it, would have been proper, just such a charge as was given should have been giv. en. The language of the charge conveys the idea that there was no issue for the jury to determine as to the existence of the defects; but they were only to find whether they, or any of them, caused the accident. Under this charge, the jury might very well have

sity of examining the evidence upon the ex- twelfth, thirteenth, and fourteenth assignistence of the defects mentioned, which was ments. There was no evidence to show that conflicting, and, assuming them to exist, have it was appellee's duty to keep up this maaddressed themselves solely to the issue as chinery or to make such repairs as were necto whether they caused the accident, and essary to remedy the defects complained of, were due to the negligence of appellant. if, in fact, they existed. For this reason also there was no error in refusing the charge requested and referred to in the sixteenth assignment of error. With this element omitted of appellee's duty to make repairs to remedy such defects as are claimed by him to have existed in this machine, this charge would have been a correct statement of the law on this issue. The seventeenth assignment of error is without merit.