tates of decedents shall apply to and govern such guardianships, whenever the same are applicable and not inconsistent with any of the provisions of this title."

"Art. 2575. Where the parents of the minor live together the father is the natural guardian of the person of the minor children by the marriage, and is entitled to be appointed guardian of their estates.

"Art. 2576. Where the parents do not live together, their rights are equal, and the guardianship of their minor children shall be assigned to one or the other, according to the circumstances of each case, taking into consideration the interest of the child alone.

"Art. 2577. Where one of the parents is dead, the survivor is the natural guardian of the persons of the minor children, and entitled to be appointed guardian of their estates.

"Art. 2578. The surviving parent of a minor may, by will or written declaration, appoint any person not disqualified to be guardian of the persons of his or her children after the death of such parent; that such person shall be entitled to be appointed guardian of their estates also after the death of such parent.

"Art. 2579. Where the minor is an orphan, and no one has been appointed by the parent to be the guardian of such minor, as provided in the preceding article, the nearest ascendant in the direct line of such minor, if not disqualified, is entitled to the guardianship of both the person and estate of such minor.

"Art. 2580. If there be more than one ascendant in the same degree in the direct line, they are equally entitled, and the guardianship shall be given to one or the other, according to circumstances, taking into consideration the interest of the orphan alone.

"Art. 2581. In case the orphan has no ascendant in the direct line, the guardianship shall be given to the nearest of kin in the collateral line, who comes immediately after the presumptive heir or heirs of the orphan; and if there be two or more in the same degree, the guardianship shall be given to one or the other, according to circumstances, taking into consideration the interest of the orphan alone.

"Art. 2582. If there be no relative of the minor qualified to take the guardianship, or if no person entitled to such guardianship applies therefor, the court shall appoint some proper person to be such guardian."

"Art. 2585. The following persons shall not be appointed guardians : "1. Minors, except the father or mother.

"2. Persons whose conduct is notoriously bad.

"3. Persons of unsound mind.

"5. Those who are themselves or whose father or mother are parties to a law suit, on the result of which the condition of the minor or part of his fortune may depend.

"6. Those who are debtors to the minor, unless they discharge the

debt prior to such appointment; but this subdivision does not apply to the father or mother of such minor."

While article 1917 is embodied in the statute regulating the estate of decedents, still it is made applicable to guardianship proceedings by article 2558. Hence we hold that appellants, if in the first instance entitled to preference over Mrs. Arlitt, had the right, at the time and in the manner disclosed by the record, to attack her appointment as guardian and have her letters revoked. We also hold that, within the purview of the statute quoted, she is not a parent of the minors; and therefore is not given preference as to the right of guardianship over the blood relatives. We are satisfied that the term parent, as there used, does not include a stepfather or stepmother. This being the case, and the other blood relatives having waived their right in favor of the uncle Emil Heinemier, and the court having found on testimony which supports the finding, that he was not disqualified and would make a good and competent guardian, he is entitled to the position, unless the courts have the power to arbitrarily disregard the statute.

In our opinion, when a person designated by the statute as having the prior right of guardianship is not disqualified by reason of matters mentioned in article 2585, then such person is entitled to be appointed guardian, although the court may be of the opinion that some other person, not given preference by the statute, would fill the position better. The Legislature has the power to make its laws mandatory upon the courts, as well as others, and when it is reasonably certain that such was the purpose of the Legislature, it is the duty of the courts and others charged with the enforcement of statutory law to execute the legislative purpose, although, in some instances hardships may result. Blackwood v. Blackwood, 92 Texas, 482.

The statute provides, in more than one article, that when two or more persons have equal right to be appointed guardian the court may exercise discretion, and should be controlled alone by the interests of the minor; and having conferred discretion in certain designated instances, it is fair to presume that it was not intended that discretion should be exercised in other instances.

Hence we conclude that the District Court erred in appointing Mrs. Arlitt guardian, and hold that Emil Heinemier should have been appointed in her stead. The case, however, will be remanded, because the record indicates that one of the minors may have attained the age which entitles him to select his own guardian; and by the time the case is reached again in the District Court, other conditions may not be the same as they were at the last trial.

Reversed and remanded.

INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY V.

JOHN BRANCH.

Decided April 9, 1902.

1.—Handcar-Use in Employe's Private Business-Charges Construed Together. A charge with reference to the liability of a railway company for injuries by collision at a road crossing with a handcar then being used by an employe about his private business, which required, in order to support recovery, a finding that he was and should have been known to the company to be in the habit of disobeying the company's rules prohibiting such use of the handcar committed to his charge, was to be considered in connection with a subsequent paragraph requiring a finding that he had also been guilty of negligence causing the injury in its operation, and not taken as authorizing a recovery independent of such negligence in its use. See charges held to properly present the issues in such

case.

2. Requesting Charges Selection by Judge-Undue Prominence.

When counsel request several charges on the same issue, and the giving of all would give it undue prominence, they can not complain that the one selected to be given presents the issue less specifically than one refused.

3.-Verdict-Correction of Form.

A verdict in a personal injury case by which the jury "find the defendant guilty for the sum of fifteen hundred dollars," signed by the foreman, but without title of the case, was properly corrected in open court, by direction of the judge, so as to give it due form, before being received.

4.-Assignment of Error-Verdict Contrary to Evidence.

Appellate courts do not revise the action of the jury. Error by reason of the insufficiency of evidence to support their verdict should be assigned upon the action of the court in refusing a new trial.

Appeal from Comal. Tried below before Hon. L. W. Moore.

S. R. Fisher (N. A. Stedman, of counsel), for appellant.

F. J. Maier, for appellees.

KEY, ASSOCIATE JUSTICE.-The nature of this suit is disclosed by the instructions given to the jury, which are as follows:

"1. The plaintiff sues the defendant company for injuries inflicted upon the wife of plaintiff, damages to his buggy and horse, and expenses incurred in the treatment of his wife, alleging that these injuries were caused by a handcar of said company striking the buggy in which they were riding at the crossing of one of the streets of New Braunfels, alleging that said handcar was negligently used and thus negligently caused this injury.

"2. The defendant company, as a defense, alleges that at the time of said injury the handcar was not being used in the business of the company, but that said car was then being used only for the private use of the person operating it.

"3. The jury are charged that the uncontradicted testimony shows that at the time of the injury one Maloney, an employe of the company who had charge of the handcar, was using said car for his own

private use and was not using same for the company's business, and the company would not be liable, unless the evidence shows said Maloney to be a disobedient and untrustworthy servant, and was in the habit of disobeying the company's rules in running and using said car, and that said company knew, or could have known by the use of ordinary care, that said Maloney was in the habit of disobeying the rules of the company, which forbid the use of the handcar at night unless by order of the company.

"4. You will determine from all the facts and circumstances in proof whether said Maloney was a disobedient and untrustworthy servant, and did frequently use said handcar when forbidden by the rules of the company, and that the company did know or could have known this fact by the use of reasonable diligence, and if you so believe, then you will find for the plaintiff, if said car was negligently run and used and did thus cause the injuries. If, upon the other hand, you do not so believe, you should find for the defendant. If you find for plaintiff, you will find such an amount as damages as will fairly and justly compensate the plaintiff for the injuries he has sustained. In doing this, you will consider the pain and suffering of his wife, the value of the loss of time from labor caused by the injury, the value of any impairment she has suffered to labor or earn wages, and whether temporarily or permanently; you will estimate the value of the injury to the buggy and horse, also the expenses incurred incident to her injury, such as doctor's bill and medicine, not to exceed the several amounts sued for in plaintiff's petition."

The court also gave the following special instructions, at the instance of the defendant:

"2. Negligence is the failure on the part of the defendant, while resting under a legal duty or obligation to the plaintiff, to do what an ordinarily prudent and careful person would have done under the facts and circumstances surrounding the transaction complained of, or the doing by the defendant, while resting under a legal duty or obligation to the plaintiff, of some act resulting in injury to the plaintiff which an ordinarily prudent and careful person, under the same or similar circumstances, would not have done.

"3. The jury are instructed that by the term ordinary care, as used in the charge of the court, is meant such care as an ordinarily prudent and careful person would have exercised under all the facts and circumstances surrounding the transaction under investigation.

"10. The jury are instructed that it devolved upon the plaintiff, John Branch, in driving his buggy to a railroad crossing on one of the streets of the city of New Braunfels, to exercise such care as an ordinarily prudent and careful person would have exercised under similar circumstances, and that if he failed to exercise such care, and it contributed directly and proximately to producing or causing the injuries complained of, you will return a verdict for the defendant. In this

Vol. 29 Civil-10.

connection, you are also instructed that it likewise devolved upon Lavina Branch, plaintiff's wife, for alleged injuries to whom he seeks damages, also to exercise ordinary care in going upon the crossing, and if from the evidence you believe that the said Lavina Branch failed to exercise such ordinary care, and that such failure on her part contributed directly and proximately to the infliction of the injuries complained of, you will return a verdict for the defendant.

"16. The jury are instructed that the fact that the defendant, after the happening of the accident complained of, did not discharge John Maloney for using the handcar upon his own business at the time mentioned in plaintiff's petition does not prove or tend to prove that he was using the same in furtherance of the business of the company." From a judgment in favor of the plaintiff, the defendant has appealed.

Opinion. Numerous errors are assigned upon the action of the court in admitting testimony. Some of the questions thus presented were decided against appellant on a former appeal. We have reconsidered them, however, and adhere to the ruling then made. We also hold that the other rulings complained of in reference to the admission of testimony were correct.

The criticism is made against the third paragraph of the court's charge that it authorized a finding for the plaintiff without any finding by the jury that Maloney was guilty of negligence in using and handling the handcar on the occasion of the accident. We hold that this criticisms misconstrues the paragraph of the charge referred to, and that that paragraph is to be considered with the succeeding paragraph; and when so considered, the jury must have understood the charge of the court to mean that the plaintiff was not entitled to recover unless Maloney was guilty of negligence at the time of the accident. Several other criticisms are urged against the court's charge, but we hold that they are without merit.

Error is also predicated upon the action of the court in refusing the following special instructions:

"8. If from the evidence the jury believe that an ordinarily careful and prudent person, in approaching and going on a railroad crossing in the nighttime, in the dark, would have stopped and looked and listened for the approach of a train or a handcar along the track to the crossing, and that neither the said John Branch nor his wife, at the time and place of the accident, stopped and looked and listened, and that such failure on their part was negligence which directly and proximately contributed to and concurred in causing the accident resulting in injury, you will return a verdict for the defendant.

"9. The jury are instructed that the plaintiff rested under the legal duty and obligation of exercising ordinary care in driving on and over the railroad crossing, that is, such care as an ordinarily careful and prudent person would under the circumstances have exercised in driving