question of programme as an issue, when the undisputed evidence is that one had been arranged and that Hill was advised of it.

It is true that it was shown without dispute that a programme had been arranged which involved the kicking of the car and therefore the giving of a kick signal, and that of this Hill was fully advised. This the court might safely have assumed, but we do not regard his failure to do so as material. It is certainly true that he did not err in refusing to assume that the programme involved the giving of the kick signal at the particular time it was given or by some one other than Hill, and without warning to him. Upon these issues the evidence was conflicting. If the court could assume that the programme of which Hill was advised included the giving of the kick signal without warning to him, nothing remained but to charge for defendant, and as we have seen this should not have been done.

The other objections, however, are more serious. It will be observed the court charged the jury, in effect, that in order for them to find for defendant on the theory of assumed risk, they must believe from the evidence (1) that a programme had been arranged of which Hill knew; (2) that under the programme Hill knew that about the time he went to uncouple the car the train would be put in backward motion without warning to him; and (3) that such was the usual and customary way of doing the work in the Galveston yards, and he knew of such fact.

If the programme involved the giving of the signal as it was given and Hill knew it, that of itself would have been a distinct defense, whether the custom was established or not.

If the custom was established as contended for by defendant, that of itself would be a distinct defense, for all of the testimony to the effect that the custom contended for by defendant prevailed in the Galveston yards also visits knowledge of it on Hill, so that if the jury believed the custom had been established they must also have found that Hill was familiar with it.

If Hill acquired from any other source knowledge that the signal had been given or was about to be given without reference to him and nevertheless put himself in a place of danger, the fact would be an effective defense without reference either to custom or programme, and this issue was presented by the facts showing that Hill knew that Fewell had thrown the switch and his view of Fewell was unobstructed when he undertook the work and the signal was given. Yet the court, in the portion of the charge quoted, conjunctively states these matters of defense so that the jury is required to find custom, knowledge of custom, and knowledge of the fact in order to sustain the defense of assumed. risk.

For the reasons given we regard the charge as affirmative error. The charge given at the request of plaintiff, to the general effect that knowledge on the part of Hill would be a defense, did not serve to cure the It left the charge confused, contradictory, and misleading. The

error.

Vol. 29 Civil-2.

prominence given to the issue of the existence of the custom during the trial may, in the light of this charge, have well induced the jury to believe that the defendant in order to be entitled to a verdict must in any event have established the existence of the custom contended for. The other criticisms of this portion of the charge are not tenable.

Defendant requested the court to give a special charge to the effect that if they should find from the evidence that a certain custom prevailed in the Galveston yards as to signals and who should give them, and a method of work known and usual with the switching crew in question, then it would be immaterial in this case how the work may have been done in other yards. This the court refused to give and his refusal is assigned as error.

The court had been previously asked to charge that evidence of how work was done in other yards should be disregarded by the jury. This was properly refused, because there was evidence to the effect that like customs and methods prevailed in all yards and was proper to be considered in determining the issue of custom prevailing in the Galveston yard.

But the defendant had the right to have the effect of that testimony limited in the event the jury should determine that a different custom in fact prevailed in defendant's yards at Galveston. It may be the custom of other yards, as contended by plaintiff. It may be it was a wiser and a safer and a more humane custom and one which ought to have prevailed universally, but it is nevertheless true that if deceased and his fellow workman had adopted a different method from which he should have expected the kick signal to be given without regard to him, the custom so adopted would unquestionably bind him without reference to the custom prevailing in other yards.

The charge presented by the thirteenth assignment should have been given.

Defendant also complains because the court charged that the burden of proof was on the defendant to show by a preponderance of the evidence that the deceased, Hill, was chargeable with contributory negligence.

We think the complaint well founded. The case is one largely of circumstantial evidence. The plaintiffs in the development of their case presented the issues of contributory negligence and assumed risk. In addition to this some of plaintiffs' witnesses testified to facts which if standing alone would have authorized the submission to the jury of the issue of contributory negligence. This being true, it seems to us a case in which the court should have given no charge on the burden of proof as to that issue. Railway v. Geiger, 79 Texas, 21. Or else should have given a charge so modified as to permit the jury to look to the whole evidence in determining whether the defense had been established. Railway v. Reed, 88 Texas, 439.

Such a charge has been held erroneous and misleading as tending to induce the jury to look alone to defendant's evidence for proof upon

the issue and to ignore the evidence furnished by plaintiffs' case and plaintiffs' witnesses. Railway v. Martin, 63 S. W. Rep., 1089; Railway v. Albright, 26 S. W. Rep., 250.

We do not regard this conclusion as in conflict with the case of Railway v. Sheider, 88 Texas, 152.

Defendant further complains because the court charged the jury that if deceased exposed his body between the cars, and if such act on his part was negligent, and that but for such negligence on his part he would not have been killed, then he would be guilty of contributory negligence, and you will find for defendant. The objection urged against this charge is that it submits as an issue whether the act of exposing the body between the cars, if negligence, contributed to the accident, when as a matter of fact it inevitably did so and the evidence presented no issue about it. The objection is well sustained by authority. Railway v. Rowland, 90 Texas, 365; Railway v. McCoy, 90 Texas, 264; Culpepper v. Railway, 90 Texas, 627.

Plaintiffs contend that, if error, the charge was justified by special charges requested by defendant. We do not think the requested charges referred to susceptible of the construction suggested by plaintiffs. The assignment is sustained.

The other assignments do not require extended notice. They either present no error or else complain of matters which are not likely to be repeated on another trial.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

ON MOTION FOR REHEARING.

The judgment in this case was reversed and the cause remanded for reasons given in the main opinion.

On motion for rehearing the questions arising upon the causes assigned for reversal were certified to the Supreme Court. The answers of that court hold us to have been in error as to the first three questions certified. Upon the fourth our decision is held to have been correct. 95 Texas, 629.

Appellees now urge (1) that the error sustained by the Supreme Court against the judgment of the trial court in the answer to the fourth question was not raised in the brief of appellant; and (2) that if it was it was harmless error, in view of the facts of the case and of other cases in which the Supreme Court has refused writ of error.

Upon the first position we have examined the briefs and are clear that the question is presented. On the question the answer to which requires in our opinion a reversal of the judgment, we can not concur in the contention of counsel. We have held the seventeenth assignment should be sustained as reversible error. The Supreme Court in answer to the fourth question certified, have, with all the facts before them, together

with an assurance in effect that we would not reverse the cause upon the facts, held that we were right in our position. The cases in view of which we are requested to construe the answer of the Supreme Court were doubtless considered by that tribunal both in determining the answer to the question and their consideration of the motion for rehearing, which was overruled. Counsel has perhaps misapprehended the expression of this court to the effect that on the record the case was one of merit and should not be reversed except for errors of law likely to affect the jury in making up their verdict. We deemed this expression proper in view of the fact that some of the questions might involve the question of harmless or harmful error, but did not intend to say what this court would have done had the facts been presented to us as a court of first instance. In the matter of the submission to the jury of the question whether the act of the deceased in going between the cars or placing himself partly between the cars if contributory negligence was the proximate cause or proximately contributed to the accident, we held that the trial court erred. This seems to be well settled by the cases cited in the main opinion and we adhere to the ruling, but we do not now determine whether the error was such as to require a reversal if no other error had been committed. It is not necessary to decide the question, as the error need not be repeated on another trial.

The main opinion as modified by the answers of the Supreme Court to certified questions, together with this opinion on motion for rehearing, are upon a like state of facts to be looked to by the trial court upon another trial, for the law of the case upon the questions involved in this appeal. The motion is overruled.

Overruled.

E. B. WHEELER ET AL. v. WARWICK DUKE ET AL.

Decided April 3, 1902.

1.-Probate Court-Record-Order Nunc pro Tunc.

An order of the probate court in guardianship not entered during the term upon the minutes or any record required to be kept by law was a nullity, and could not be entered afterwards nunc pro tunc. Rev. Stats., art. 1853.

2. Same-Guardianship-Void Order-Maintenance of Ward.

Where the probate court made an order allowing the guardian to expend such part of the corpus of the estate in the maintenance and education of the ward "as may be sufficient," without fixing any specific sum to be so expended, such order is in contravention of the statute and void. Rev. Stats., art. 2549. 3. Same-Entering Order Nunc pro Tunc-Amending Record.

Evidence showing that an application for an order of the probate court in guardianship was indorsed by the judge as granted, with directions to enter it on the minutes-this being his usual custom, as he used no probate docket,— and that the order was then presented to the clerk to be so entered, which was never done, was not sufficient to justify an entry of the order nunc pro tune at a subsequent term, there having been originally no entry of it upon any book or record kept by law, as required by the statute with respect to amendments of the record. Rev. Stats., arts. 1354, 1355.

Appeal from Shelby. Tried below before Hon. Tom C. Davis.

I. O. B. Richardson, A. H. McKnight, J. M. Snders, Drury Field, and John G. Walker, for appellants.

Bryarly & Polley, for appellees.

PLEASANTS, ASSOCIATE JUSTICE.-This proceeding was instituted by appellants on the 11th day of April, 1901, in the probate court of Shelby County, the object of the suit being to obtain an order of said court to enter nunc pro tunc an order made by said court at its October term, 1892, in the guardianship of the estate of the minor heirs of W. J. Duke, deceased. The appellants are the heirs at law and sureties upon the guardian's bond of M. W. Wheeler, deceased, who was the guardian of said minor heirs at the time the order sought to be entered nunc pro tunc is alleged to have been made, and the appellees are the former wards of the said guardian and the owners of the estate administered by him. The probate court refused to have said order entered nunc pro tunc, and upon an appeal to and a trial de novo in the District Court the same judgment was rendered. The petition alleges that M. W. Wheeler qualified as guardian of the estate of the minor heirs of W. J. Duke, deceased, on the day of August, 1892, and continued to act as such until his death, which occurred on the 8th day of January, 1897, at which time said guardianship was still pending and has never been closed; that on the day of October, 1892, said guardian made application in writing to the probate court of Shelby County, in which said guardianship was pending, showing that the income of the estate of said minors was insufficient for their maintenance and education, and asking that he be allowed to expend a portion of the corpus of said estate for said purpose; that said application was granted in open court at the October term, 1892, and an order was made by the court allowing and authorizing said guardian to use a sufficient amount of the body of said estate to maintain and educate said minors, which order the court directed the clerk to enter upon the minutes of the court; that said guardian caused the order so made to be put in writing and handed same to the clerk to be placed upon the minutes of the court, but for some cause not known to petitioners the clerk failed to enter said order in the minutes; that said guardian fully believed that said order had been duly and properly entered by the clerk, and in the administration of said estate expended about $800 of the corpus of same in the maintenance and support of said minors, believing that he was fully authorized so to do under the order of said court; that said guardian never became aware during his lifetime of the fact that said order had never been entered in the minutes of the court, and petitioners did not know that said order had never been entered until about the 6th day of April, 1901. The following exhibits are attached to the petition and are al