rying engines from the depot to the roundhouse. It was the duty of such assistant hostler to ride upon the engine in going through the switch yards of defendant, and from the roundhouse to the depot, and from the depot back to the roundhouse, and if any of the switches upon said track upon which said engine was running were closed, to get off the said engine and open the switches, so as to let said engine pass, and it was the custom as the engine came along by him, to catch hold of the handholds, put his foot on the step, and climb upon the engine. On the day of October, 1900, the plaintiff was ordered by his superior to go with the hostler as his assistant in carrying the engine of the Cleburne and Paris train from the roundhouse to the depot; he got upon said engine at the roundhouse, as was his duty to do, and started from the roundhouse with said engine to go to the depot; that the step on said engine which was used in getting on and off of same was defective, and that after said engine had gone some distance a switch on the track a short distance ahead was discovered to be closed, and that when the engine got near said closed switch the hostler stopped same, and plaintiff, as was his duty, got off said engine and opened said switch and signaled the hostler. As the engine was slowly passing him, he, as was the custom of employes in defendant's employment, caught hold of the handholds on said engine and placed his foot on the step of said engine, and as he attempted to get back on said engine, the said step, by reason of being defective, turned and caused the plaintiff's foot and leg to be thrown on the iron rail, and the wheels of the engine were caused to roll over same and to crush and mangle same, which necessitated the amputation of his said foot and leg. The defective condition of said step was caused by the negligence of defendant, and by reason of the negligence of the defendant in causing said step to become and remain defective, plaintiff was injured as stated above. Opinion. The first and second assignments of error complain of the action of the court in overruling defendant's motion for a new trial. Under these assignments appellant presents the following proposition: "Though there be evidence tending to support the verdict, or evidence which, standing alone, would support the verdict, yet if upon the whole case the verdict is contrary to the great preponderance of the evidence, or against the manifest truth of the case, it is not only the authority. but the duty of this court to reverse the judgment based on such a verdict." It is well settled in this State that where there is a conflict in the evidence appellate courts will not reverse because the verdict is contrary to the preponderance of the evidence (Rainbolt v. March, 52 Texas, 251; Railway v. Larkin, 67 Texas, 460; Railway v. Marcelles, 59 Texas, 334; others might be cited), or even where there is a decided preponderance. Chase v. Veal, 83 Texas, 333. The negligence relied on for a recovery was a defective step of the engine. Appellee testified that when he attempted to get upon the engine the step turned and caused him to fall. The testimony of a number of appellant's witnesses shows that upon examinations made the step was secure, which could not have existed if plaintiff's testimony was true. Plaintiff had made a written statement as to how the accident occurred, in which he failed to mention a defective step. This statement was made to the agent of the company, and plaintiff testified that "I did not make a full statement to the railroad company because I didn't feel under any obligations to do so." Plaintiff's testimony as to the defective step was corroborated by two other witnesses, while there was some testimony contradicting in some particulars several of appellant's witnesses, which tended to weaken their testimony. If it be conceded that the evidence of appellant preponderated, it did not to such an extent as to warrant an interference with the verdict. Nor does the evidence warrant us in holding that the verdict "is against the manifest truth of the case." The jury having passed upon the credibility of the witnesses and their verdict having been approved by the trial court, and there being evidence to support it, it will not be disturbed. The trial court did not err in admitting as evidence mortuary tables of life expectancy, it being shown that plaintiff's earning capacity had been permanently partially destroyed. See Railway v. Mangham, 4 Texas Ct. Rep., 682. The refusal of the following charge is assigned as error, to wit: "You are instructed that the plaintiff in performing his duties was required to exercise such care as an ordinarily prudent man would have exercised under like circumstances. If you believe from the evidence that, considering the time of the day, the state of the weather, the fact that the train was moving and escaping steam obscuring or tending to obscure his vision, an ordinarily prudent man would not have attempted to get on said engine, and that the act of plaintiff in attempting to get on said engine was, under all the circumstances of the case, negligence, then if you so believe you will find for the defendant." The court gave a charge on contributory negligence without grouping facts. The court also gave a special charge asked by defendant, as follows: "It was the duty of plaintiff when he attempted to board the engine, after throwing the switch, to use such care and caution as an ordinarily prudent person would have exercised under like circumstances, and if he failed to do so he would be guilty of contributory negligence and could not recover, although you believe from the evidence that the defendant was guilty of negligence as explained in the general charge." In Railway v. Branch, 4 Texas Court Reporter, 614, it is held where the court instructs the jury in a general way on an issue and also gives a special instruction of the same character, it was not error to refuse a correct charge requested grouping the facts and applying the law thereto on the same issue. We do not, however, base our decision on this holding, for the charge under consideration was erroneous in that it failed to instruct the jury that if they found the facts stated constituted negligence they must further find that such negligence con tributed to the injury. Railway v. Kelly, 34 S. W. Rep., 809; Railway v. Rogers, 40 S. W. Rep., 956. It is insisted, however, that if it should be held that said charge was incorrect, "it was sufficient to have called the attention of the trial judge to the fact that his charge upon the subject was defective by reason of generality," and that it was the duty of the court to give a proper charge on the subject. It is well settled that where the court fails to charge on an issue and a special charge is requested, though incorrect, but sufficient to call the court's attention to the omission, the court should submit a proper instruction on that issue. See Neville v. Mitchell, 4 Texas Ct. Rep., 157, and authorities there cited. Where, however, the court has made a correct general presentation of the issue, if the party desires a fuller charge on that issue he must request a correct one. If the requested charge is incorrect it is not error for the court to refuse it. Nor is the court bound to further charge on that issue. Railway v. Schieder, 88 Texas, 152; Railway v. Byas, 35 S. W. Rep., 22. We are of opinion that the action of the court in refusing the special charge was not error. The other assignments of error presented have been considered, but we conclude that no reversible error has been shown, and the judgment is therefore affirmed. Writ of error refused. Affirmed. WELLS, FARGO & Co. v. A. C. PAGE. Decided May 10, 1902. 1.-Fellow-Servants-Express Messenger and Guard. An express messenger in charge of a car and a guard employed to go with the car to protect it from robbers are fellow-servants, and the fellow-servants' statute does not apply to express companies so as to render them liable for injuries caused by the negligence of a fellow-servant. 2. Same-Assumed Risk. An express messenger in arranging the express matter in his car is acting within the ordinary scope of his duties as servant, and a fellow-servant can not recover for an injury resulting from the negligent manner in which the arranging is done, since the risk of such danger is assumed in accepting the employment. Appeal from Ellis. Tried below before Hon. J. E. Dillard. Alexander & Thompson, for appellant. T. H. Collier, for appellee. TEMPLETON, ASSOCIATE JUSTICE.-Page was employed as a guard by the express company, his duty being to travel on the cars of the company and protect the same against robbers. On the night of Sep tember 19, 1898, while he was on duty, the train on which he was riding stopped at Alma, a station on the Houston & Texas Central Railroad. He thereupon opened one of the side doors of the express car for the purpose, according to his testimony, of observing whether any suspicious persons boarded the train. While he was opening the door a piece of gin timber fell on his foot and injured it. The timber was being carried by the express company, and had been set against the wall of the car in a nearly upright position. It was caused to fall, apparently, by the sudden stopping of the train. Page brought suit on account of his injuries and obtained a judgment from which the company has appealed. Page pleaded that the premises where he was required to his employer to work were unsafe and dangerous for the reason that the car was not sufficiently lighted and was improperly loaded. The express messenger, one Baker, had sole charge of the car and of the express matter therein, but had no control or authority whatever over Page. The company pleaded that Baker and Page were fellow-servants, and that if Page's injuries were caused by Baker's negligence, it was not answerable therefor. On the trial the company requested special charges, which were refused, to the effect that Baker and Page were fellowservants, and that if the jury believed that the car was sufficiently lighted and that Page was injured because of Baker's negligence in not properly arranging the express matter in the car, then Page was not entitled to recover. Baker and Page were fellow-sevants. Railway v. Welch, 72 Texas, 298. As the fellow-servants statute does not apply to express companies, Page could not recover for injuries caused by the negligence of Baker, if the negligence occurred in the performance of a duty which he owed as a servant and not as a representative of the company. It was the duty of the company to use ordinary care to furnish Page with a reasonably safe place to work. It was bound to provide a car free from defects of construction and supplied with the proper equipments and appliances. And it was bound also to use ordinary care in employing competent and careful persons to serve with Page. There was no complaint of a defective car or of insufficient appliances, except in regard to the lights, and the evidence was such as would have justified a finding by the jury that the car was equipped with the proper lighting apparatus. It was not charged that the company was negligent in employing the servants with whom Page was required to work. The question to be determined is whether the duty which the company owed to Page, to furnish him a safe place to work, embraced the keeping of the express matter in the car arranged in a safe and proper manner. We are of opinion that the case of Railway v. Farmer, 73 Texas, 89, is decisive of the question in favor of the contention of appellant. In that case a car was loaded with lumber and placed on a side track. The lumber was improperly loaded in that it projected too far over the end of the car; and a brakeman attempting to couple the car was injured The Supreme on account of the manner in which the car was loaded. Court, speaking through the present chief justice, said: "In the case before us there is no complaint of any defect in the machinery, or a want of care in the employment of any servant whose negligence caused the injury. The car on which the lumber was loaded was neither defective nor out of repair. The negligence consisted in loading the lumber in an improper manner. Conceding that it was the duty of the station. agent to see that it was properly loaded before it was ordered into the train, this was a duty which he owed as a servant merely, and not as a representative or vice-principal of the company." We think it must be held in this case that the duty which the company owed to Page to have and keep the car in a reasonable safe condition related to the construction and equipment of the car, and not to the arrangement of the express matter in the car. In arranging the contents of the car the messenger was engaged in discharging his ordinary duties as a mere servant of the company. He was employed to receive, take care of, and put off express matter, and not to keep the car in a safe condition for the guard. When Page accepted employment as a guard he assumed the risk of being injured on account of the negligence of his fellow-servant occurring in the usual course of the operation of the company's business. The charge of the court should have embraced the principles contained in the said special charges, and because it did not, the judgment is reversed and the cause remanded. Reversed and remanded. TEXAS MIDLAND RAILROAD V. W. D. MORRIS. 1.-Contract-Variance. Decided May 17, 1902. Where plaintiff alleged a contract of employment "during his lifetime or so long as he might desire," proof showing a contract for life was fatally variant. 2. Same-Term of Employment Indefinite. Where the term of service in a contract of employment is left to the discretion of either party, or the time left indefinite, either party may terminate the contract at will and without cause. 3. Same-Fixing Term. Under a contract for plaintiff's employment "during his lifetime or so long as he might desire," the employer could discharge him at will until he had fixed the term of service, and a pleading which failed to allege that plaintiff had fixed the term of service did not show a binding contract. Appeal from Kaufman. Tried below before Hon. J. E. Dillard. A. H. Dashiell, C. W. Ogden, and W. H. Lipscomb, for appellant. |