No. 8 is bad for the same reason that plaintiff's No. 1 is bad, and the same may be said of No. 10, for the jury had the right to say whether the setting of the pick handle against the chain. of the machine and then giving the signal to start was contributory negligence in a person of the age, capacity and experience of the decedent. For decedent must have sufficient capacity and experience to know that the setting of the pick handle against the chain would ordinarily result in an accident and was therefore a dangerous thing to do.

The court modified instruction No. 12 by adding after the word "Howery" and before the word "requested" in the 9th line the words "believed it to be true and." This was proper for if Howery did not believe the decedent was capable of helping him on the machine he should not have put him at the work, although decedent represented that he had worked as a helper on the machine, for it was the duty of Howery having charge of a minor to exercise ordinary care in keeping him out of danger, such as a father would use towards his son.

For the same reason the court properly modified instruction No. 13 in the same manner and to the same extent. The court also properly modified instruction No. 14 by adding thereto after the word "knowledge" the words "and experience." But it was improper and unnecessary for the court to add to this instruction after the word "master" "while acting within the scope of his employment." For it matters not what work the decedent was called upon to do if he was capable by reason of his knowledge and experience to perform such work and by ordinary care. to prevent accident to himself and he did not use such ordinary care as was proper in one of his age, capacity and experience, but carelessly and recklessly with rash indifference to consequences ran into dangers obvious to him, he would be guilty of contributory negligence. Besides the instruction implies that he was acting within the scope of his employment in using the language "in the performance of his duties as servant under his master," for a servant owes no duties to his master outside of the scope of his employment. For these manifest errors in giving and refusing instructions the judgment is reversed, the verdict set aside, a new trial awarded and case remanded for further proceedings.

BRANNON, PRESIDENT, (Concurring):

While agreeing to the decision, I wish to say, that it seems to me that in addition to JUDGE DENT'S criticism on plaintiff's instruction 2, it is bad because it assumes Buskirk's non-accountability by reason of non-age.

Plaintiff's No. 6 makes the defendant liable for Howery's acts, though under the law he was a fellow-servant, as JUDGE DENT states. He was a fellow servant, not a vice principal of the master, and his directing the boy to help at the machine, outside his usual line of work, was, if wrong, a wrongful, negligent act of a fellow servant. Any of the acts of Howery in this transaction were acts of a fellow servant under principles settled in Jackson v. Railroad, 43 W. Va. 380. That case followed the great weight of authority, and especially decisions of the National Supreme Court, and it is shown to be right by two later decisions by that of our highest court. New England R. Co. v. Conroy, 175 U. S. 323; Alaska Mining Co. v. Whelan, 168 U. S. 86. The defendant is entitled to the benefit of that law, over sympathy or feeling for the unfortunate boy, and it ought to be so declared. The fact that Buskirk was a minor does not take him out of the rule of fellow servants. McKinney, Fellow Serv. 21; the cases there cited show instances where the courts applied the rule to children of twelve and fourteen years. The fact that the boss took him from his usual line of work does not alter the case, because that boss was a mere fellow servant, and it must appear that he had authority to do the act. Pittsburg &c. v. Adams, 105 Ind. 151, 123 Am. & Eng. R. R. Cases 408; Louisville &c. v. St. Louis Co., 21 Id. 525.

Plaintiff's 8 is open to same objection.

The opinion in discussing instruction 6 says, that if on the evidence the jury had found for the plaintiff on contributory negligence, the verdict could not be set aside; in other words, it says in advance of a second trial, that the evidence is not enough to defend the company on that score. I think this Court should not thus pass on the evidence in a vital point in advance of a second trial.

I have objected to this in several cases not now recalled, except State v. Zeigler, 40 W. Va. 610. Where this Court does not grant a new trial on the evidence, but on some other ground, it

should not indicate an opinion of that evidence any more than can a circuit court.

I think defendant's instruction 2 is good. A man cannot be required to take more care of any one, even a son, than of himself. I think defendant's instruction 6 is good because of the doctrine of fellow servantcy.

POFFENBARGER, JUDGE:

I concur in the foregoing note by JUDGE BRANNON.

Reversed.

CHARLESTON.

HINES v. BOARD OF EDUCATION OF SPRINGFIELD DISTRICT.

Decided March 30, 1901.

1. JUSTICE-Appeal-Dismissal-Exceptions.

On appeal from a justice, when a motion is made by the appellee to dismiss the appeal because inprovidently awarded, and the motion is overruled, the appellate court cannot review such ruling, unless it was objected to and exception taken when the ruling was made, or the point saved, and a bill of exceptions duly taken, showing the ruling complained of, or unless the error appears upon the record. (p. 428).

2. CONTRACT-Construction-Court-Jury.

When a question arises as to the legality of a written contract, it is for the court, and not the jury, to decide. (p. 429).

Error to Circuit Court, Monroe County.

Action by J. E. Hines against the Board of Education of Springfield district. Judgment for defendant on appeal from justice, and plaintiff brings error.

ROWAN & BOGGESS, for plaintiff in error.

Affirmed.

JOSEPH D. LOGAN and JOHN OSBORNE, for defendant in error.

MCWHORTER JUDGE:

This was an action before a justice by J. Elmer Hines against the Board of Education of Springfield District, Monroe County, founded on a contract to teach school made by E. G. Kendall and T. P. Ballard, claiming to be trustees of said district, with said Hines, dated August 24, 1898, claiming judgment for one hundred and twenty-five dollars for five months at twentyfive dollars per month. Under the said contract the school was to commence on the 3d day of October, 1898. Summons was issued April 6, 1899, returnable before the justice on the 21st day of April, on which day "Both parties appearing with their attorneys, J. A. Meadows for the plaintiff and A. G. Patton for the defendant, and after hearing all the evidence for both plaintiff and defendant and arguments by counsel, it is therefore considered that the plaintiff recover from the defendant the sum of one hundred and five dollars with legal interest thereon till paid and costs." The justice certified the record to be a full, true and complete transcript from his docket of all the proceedings had by and before him. There is nothing appearing in the justice's transcript as certified showing an application for an appeal, but there is a copy of an appeal bond made and executed in the case by the defendant dated April 27, 1899, which is approved by the justice who tried the case and certified the transcript which approval is dated April 29, 1899, and signed by said justice, which copy certified by the clerk of the circuit court is by agreement in writing signed by the counsel of both plaintiff and defendant in error made a part of the record in this cause. On the 10th day of June, 1899, the parties appeared in the circuit court by their attorneys and the plaintiff moved the court to dismiss said appeal because improvidently awarded, which motion the court overruled, and the defendant pleaded non-assumpsit, a jury of six was impaneled and sworn. After hearing the evidence the court instructed the jury to find for the defendant, and the jury returned a verdict accordingly. On the 12th day of June, 1899, the parties again appeared by counsel and the plaintiff and appellee moved the court to set aside the verdict of the jury and grant him a new trial for the reason that the same was contrary to the law and the evidence which motion was overruled, and judgment was entered reversing and annul

ling the judgment of the justice and giving costs to defendant, the appellant. Plaintiff tendered a bill of exceptions to the several opinions and rulings of the court, which was signed and saved to him and made part of the record.

Plaintiff sued out a writ of error, and for assignment thereof, says, First, the court erred in overruling plaintiff's motion to dismiss the appeal as improvidently awarded, that the justice's record fails to show that appeal was applied for within ten days, as required by law. Second, the court erred in admitting improper evidence, set out in the bill of exceptions over the objection of plaintiff. Third, in sustaining the motion of defendant to instruct the jury to bring in a verdict for the defendant and in giving such instruction to the jury. Fourth, in overruling the motion of plaintiff in arrest of judgment and to set aside the verdict and grant him a new trial. Fifth, in entering up judgment for the defendant. As to the first assignment, it is disposed of by the fact that when the motion to dismiss the appeal was overruled, there was not only no exception taken to the ruling of the court, but no objection made at the time, nor is it mentioned in the bill of exceptions; from the record it simply appears that the motion was made and overruled, the issue at once made up, and the jury sworn and case tried. There being no objection or exception taken in the court below the question cannot be raised for the firt time in this Court. Danks v. Rodeheaver, 26 W. Va. 274.

The second assignment of error, the admission of improper evidence over the objection of plaintiff seems to be entirely abandoned, as it is not mentioned in the brief of plaintiff and the evidence so complained of is that brought out only on cross examination of plaintiff's witnesses by which it is shown by the trustees who employed the plaintiff to teach the school and signed his contract and employment, as well as by the plaintiff himself, that they all had knowledge of the prior employment of and existence of the contract with Walter Miller to teach the same school at the time of the employment of plaintiff, and which evidence seems to me proper and relevant. As to the third, fourth and fifth assignments. Plaintiff put in evidence the contract in writing made by Kendall and Ballard, trustees, with plaintiff, dated August 24, 1898, his certificate to teach, etc., and record of the board of education of a meeting