that any workman would be directed to saw off timbers above and suffer them to fall upon his head without warning." In another place in the petition he alleges that "he was performing the work assigned to him, and not suspecting that Kowatzeck was a negligent workman, and not suspecting that any person at the top of the tower would saw off timbers and permit the same to fall down upon plaintiff without at least giving him some warning of the approaching danger, plaintiff pursued his work," etc. In view of all that is stated in the petition, it would not be proper to construe it as alleging that other timbers had been previously suffered to fall. A number of assignments question the judgment as contrary to the evidence. These are the second, third, and fourth. Under one it is asserted that it appears from the evidence that the danger was as apparent to the servant as to the master; under another, that the evidence shows that this was an assumed risk; and under the other that the injury was caused by the act of a fellow servant; that the evidence shows that Bartholomae was assisting in the work on top of the tower, and while so doing and for the time being he was acting as a fellow-servant, and not as vice-principal, and his negligence would not render defendant liable; and that the evidence failed to show that appellant knew or had reason to believe that Kowatzeck was a negligent workman prior to this injury. As these propositions proceed on the testimony, we will here state its substance: The fact that Bartholomae was in charge of the work and employed as vice-principal was shown. The nature of the structure and surroundings was substantially as alleged in the petition. Plaintiff testified that he was put to work by the foreman to tear down the scaffolding and to pull up by rope timbers as they might be needed on the tower. The timbers they were sawing were 7x8 and 10 or 12 feet long. At that time nobody was on the tower, but soon after the foreman directed Kowatzeck to go with him upon the tower and place there some braces. They were up there working some time, sawing and fitting braces. Kowatzeck sawed off the end of a timber weighing about fifteen pounds which fell and struck plaintiff on the head, knocking him unconscious. He did not know how long he remained so. He was not quite 21, and had not had very much experience at the time. He was not much acquainted with Kowatzeck, had never worked with him before, and did not know anything about him as a workman. He did not suppose he or anyone else would saw off a piece of timber on his head. At the time the timber was sawed off no warning was given by anyone. Bartholomae was up on the tower with Kowatzeck and directing what to do. No one was holding the timber for Kowatzeck and he did not have it tied with a rope, but sawed the timber off and suffered it to fall on his head. There was no scaffolding above him, but the hands were standing around the timbers. He could not perform the work that had been assigned him and watch the hand above. There was nothing to obstruct the view. R. W. Smith, plaintiff's father, testified in substance: He was acquainted with Bartholomae and Kowatzeck. They have worked together for a long time. Kowatzeck was a very careless and reckless workman, and the fact is notorious. He knew Kowatzeck well and had worked with him for a long time. He (witness) had been working with Bartholomae some time before plaintiff went to work, but was not working there at the time. He had liberated his son long before he was hurt, and he had no interest in his time and earnings. Bartholomae was the boss for defendant and was clothed with authority to employ and discharge hands, and had the general supervision of the works and the hands working under him. The piece of timber that struck plaintiff was not seen by witness, and he was told when he went to the place that it had been burned up. At that time it seems his son had not recovered consciousness. It does not unmistakably appear from this testimony that the danger was an apparent one. Although the view was unobstructed, and plaintiff might have watched the proceedings above him, it does not appear that he was doing so. He said he was under the tower working and could not perform his work and watch the hands above. Stress is also laid by appellant on the facts that plaintiff testified that the dimensions of the timber were 2x8 and 10 or 12 feet long; that they were of green lumber, and the end sawed off which fell upon him weighed about fifteen pounds; that they were fitting the braces and had not sawed them the right length before going up; that he heard them sawing; also the fact that plaintiff could not have learned the size and weight of the piece by seeing it afterwards, as the evidence showed it had been burned before he regained consciousness; that no one was holding the timber of Kowatzeck, who was sawing it, and that it was not tied with a rope. It does not necessarily appear that all these facts became known to plaintiff by watching the work going on above him. His testimony is that he was not doing so. If, however, he had known by observation that Kowatzeck was sawing this particular timber, and had not secured it with a rope, and of the sizes of the timbers, the question of negligence on his part would still remain an open one, because an ordinarily careful person might not have foreseen that such an act of negligence would have occurred as that of allowing the piece to drop down where he was working. Evidently he had raised these timbers and knew the sizes and weight. He may also have noticed the dimensions of what was being sawed off, still it would not conclusively appear that he was guilty of contributory negligence, nor that the danger was such that he must have realized and assumed it. The contention that under the evidence the act was that of a fellowservant is not sustained. In the first place it does not appear that the foreman was engaged in sawing timbers. The testimony is that he was up there directing the work, and failed to warn plaintiff. This direction was manifestly a part of his duties as foreman, and his negligence as foreman and that of Kowatzeck concurred. The facts here are dif ferent from those in Railway v. Schwabbe, 1 Texas Civil Appeals, 579, and the idea there advanced is not applicable. As to the testimony touching knowledge of the incompetency of Kowatzeck at the time, not showing that such fact was then known to Bartholomae, it seems to us that the evidence is sufficient to establish this, but if not, the concurring negligence of the vice-principal eliminates the question. We conclude the evidence was not such as affirmatively required a judgment for defendant. No charges were requested by defendant. The fact it seems is that the trial took place in the absence of defendant. The court submitted the case in general terms on defendant's negligence as charged. A submission of the issue of injury by fellow-servant would have been inadmissible under the testimony. The judgment should not be reversed for failure to submit the issues of assumed risk and contributory negligence, there being no request for that purpose. Nor for the failure of the court to define negligence. Warder v. Henry, 23 S. W. Rep., 780. Nor for failing to charge the negative of his charge that unless the evidence showed that defendant was negligent to find for defendant, there being no request therefor. Nor because the verdict was for "plainiff" instead of plaintiff. The judgment is affirmed. Affirmed. D. SULLIVAN v. MISSOURI, KANSAS & TEXAS RAILWAY Decided May 14, 1902. 1.-Condemnation Proceedings-Appointment of Commissioners. Where, in proceedings to condemn land for a railroad right of way, and on a motion to set aside the appointment by the county judge of commissioners to appraise the value of the land, it appears that the parties had failed to, and could not, agree on commissioners, thus warranting such appointment under the statute, the motion was properly denied. Rev. Stats., arts. 4447, 4448. 2. Same-Estimating Value-Charge. In such proceeding it was error for the court to refuse to charge that in estimating the value of the land taken the jury could consider the present condition of the locality as to business and demand for property, and also any increase or development thereof that could be expected in the immediate future. 3.-Same-Evidence-Other Sales. Evidence was admissible to show the price at which the owner had recently sold a similar tract in the immediate vicinity, but not what he paid for the land ten years before, though there was evidence that its market value had remained unchanged. 4. Same-Market Value-Opinion. Where a witness shown to be familiar with the land and its surroundings and competent to testify as to the value of property in that locality was asked what in his opinion was the market value of land in the neighborhood per acre, an objection to the question as calling for the cash market value was improperly sustained. 5.-Same-Evidence of Offers and Prices Asked. Evidence was not admissible to prove offers for adjacent and similar property, or the price at which the owners of such property had offered it for sale. Appeal from the County Court of Bexar. Tried below before Hon. R. B. Green. J. C. Sullivan and Hines & Taliaferro, for appellant. F. C. Davis and Denman, Franklin & McGown, for appellee. NEILL, ASSOCIATE JUSTICE.-This is a proceeding to condemn certain property of appellant to appellee's use as a right of way for its railroad. There is no controverted issue except as to the damages, which were assessed by the jury upon the trial in the County Court at $2100. The property sought to be condemned is a strip 100 feet in width, aggregating five and one-half acres, running through a tract of land owned by appellant, a small part of which is situated within the corporate limits of the city of San Antonio, the main part lying without but near such corporate limits. Besides the appellant's loss of the property actually condemned and taken for appellee's use, the undisputed evidence shows that the value of the remaining property will be materially diminished by the construction and operation of appellee's railroad through it on the part taken for such use. Upon the extent of this diminution in value the evidence is conflicting, the witnesses differing in their testimony and varying greatly as to the value of the land immediately before and after its appropriation. The land was not used for agricultural purposes, but had been subdivided into blocks and lots with the evident design of selling it for residence property, for the purpose of which the evidence tends to show it was best adapted. The first assignment of error complains of the failure of the court to set aside, upon motion of appellant, its order appointing commissioners to assess the damages. The order was made upon the application of the appellee, and filed with the county judge as is provided for by article 4447, Revised Statutes. It appears from the evidence heard by the court on the motion to vacate the order that the parties had, prior to the filing of the application, failed to agree upon the commissioners, and that they would not agree upon them. in the event the order of their appointment was set aside. Therefore, as the court upon a proper application had, in compliance with article 4448, Revised Statutes, appointed three disinterested freeholders of Bexar County as special commissioners to assess the damages, no reason or authority was shown by the motion for annulling the order of their appointment. Before considering and passing upon the remaining assignments of error, we will state, as pertinent to them, the rule and principles applicable to estimating damages in cases like this, in which only a part of a tract is condemned. The measure of compensation and damages in such cases is the market value of the land taken for the right of way, and the dangers to the remainder by reason of the railroad running through it, less any benefits that are peculiar to the tract of land arising from the construction and operation of the road through it. In other words, when a part of a man's land is taken under condemnation proceedings, "the measure of damages is the difference between what was a fair market value of the whole tract or property before, and its fair market value after, the appropriation, in view of the usage to which the land condemned should thereafter be applied." Railway v. Ruby, 80 Texas, 172; Railway v. Manufacturing Co., 60 S. W. Rep., 893; Lewis on Em. Dom., 2 ed., 464; Brann v. Railway, 166 Ill., 434, 46 N. E. Rep., 974; Railway v. Strickney, 105 Ill., 362, 37 N. E. Rep., 1098, 26 Law. Rep. Ann., 773; Railway v. Knapp, 61 S. W. Rep. (Mo.), 300. If the situation, quality, and character of the property are such as make it peculiarly adapted to a certain purpose and give it an especial value for that purpose, then damages should be assessed with a reference to its adaptability to that purpose. Elliott on Roads and Streets, 195. The owner is entitled to have his land estimated at its fair market value, and is not restricted as to the amount it would probably bring at a forced sale. Where the public, or railroad company, through the exercise of the right of eminent domain, compels him to part with his property, the public, or railroad, must pay for it what it would bring in the market with fair and reasonable time and opportunity for offering it for sale. 2 Dill. Mun. Corp., sec. 624. Merely conjectural or speculative damages can not be awarded, but where a loss proximately results from the use to which the property is applied, it should be taken into account in the award of compensation. "Value is not to be estimated solely from the use made of the land at the time of the seizure, but the use to which it is adapted may properly be taken into account in determining what would justly compensate the owner of the land seized, since the use to which the property is adapted may exert an important influence upon its market value. The estimate of value should be based on the use which men of ordinary prudence and sagacity would make of the land. Future contingent value can not be considered, and yet it is not improper to consider the surroundings of the property, and the probability that a use may reasonably be made of it more profitable than that to which the owner has devoted it." Elliott on Roads and Streets, 202. The appellant asked the court to instruct the jury that in the appraisement of the land to be taken they could consider the present condition of the locality as to business and demand for property, and also any increase or development thereof that could be expected in the immediate future. The refusal of the court to give it is assigned as error. The rule announced by the requested charge would not permit the ascertainment of value on other than existing conditions, or on speculative or merely possible future contingencies. Railway v. Burger, 45 S. W. Rep., 613. As is said by this court in the case cited, a demand for property in the vicinity of the |