The leading or principal facts showing the circumstances under which the injury was received may be thus stated:

On the 21st of February, 1875, Patrick Delahunty, who was in the employ of the Galveston, Harrisburg and San Antonio R. R. Co. as a section foreman, was, in the discharge of his duties, with the road-master (Norway) and other employés, engaged in replacing upon the track a box-car, which had run off the day previous. They set a couple of skids under the car, with the ends resting on the rails; then fixed a rope around the car, and using a block and fall, or tackle, with one end of the rope attached to the stump of a tree and the other to a flat car attached to an engine, which furnished the motive power, had "raised the car up gradually on the under side until it brought it on a level," and "the upper side had been brought up until it just leaned over on its edge." In this operation over one hundred feet of the rope had been pulled out. With the car in this position, the road-master, who appears to have been directing the work, put Delahunty and others to level a place under the car for crib work, to block it up, and while doing this, the rope broke and the car came down on Delahunty, and he severely injured. The rope was one previously used in digging wells, and was used on this occasion by direction of the road-master. There was testimony tending to show that it was worn, and not very good. It was in evidence that it was customary in raising cars to use a derrick, but that on defendant's road they always used block and tackle. No evidence was introduced on behalf of defendant, and for the purposes of this opinion, it is not necessary to state the evidence further.

The following is the charge as a whole:

was

"1. That it is the duty of an employer to provide sound material with which to do the work required of the employé, and the failure to provide such, when an injury results from supplying unsound material, renders the employer liable in damages to the employé injured. If the proof satisfy you that plaintiff was in the employ of defendant, and that defendant furnished and supplied plaintiff a rope for the work required of plaintiff, which was rotten or unsound, and if the accident was the direct result of using the rope, then find for plaintiff such actual pecuniary damages as plaintiff has established, considering the nature of the injuries

received.

"2. If the proof satisfy you that defendant furnished sound rope, or rope reasonably fit for the work it was applied to, find for defendant. Or, if plaintiff had equal opportunity to ascertain the condition of soundness or unsoundness of the rope that defendant had, then plaintiff cannot recover.

"3. Punitory damages cannot be allowed in this case, but if liable under the law and evidence, it is liable for actual compensatory damages, and in estimating damages, the loss of time and the

permanent character of the injuries, if of that nature, are to be considered."

No charges were asked on behalf of defendant, nor does it otherwise appear that he in any manner called the attention of the court to the part of the charge now objected to. In his motion for new trial he complains that the charge was erroneous, but does not specify in what particular. In this court he assigns error, embracing the entire first paragraph of the charge, and complains that it is erroneous because "it puts the employer in the relation of an insurer or guarantor of the servant against injury, whereas the true and universally recognized principle is that he is bound only to exercise reasonable and ordinary care in providing materials to do the work required, and can be held liable to the servant only when negligence can be properly imputed to him in failing to exercise such care."

The corporation is certainly not liable to its employés as an insurer against injuries, nor for injuries caused by defective implements, if all proper precautions were taken to see that they were reasonably safe and strong. R. R. Co. v. Doyle, 47 Tex. 198; R. R. Co. v. Dunham, 49 Tex. 181; Cooley on Torts, 557.

Negligence in the corporation in the performance of its duty to its employés to furnish them safe and suitable implements, is a fact to be established. Cooley on Torts, ch. 21.

But if the injury to an employé be traced to defective implements furnished by the master, it is far from clear that any further evidence of negligence is necessary, until the master makes some showing that reasonable care had been taken in their selection. Cooley on Torts, 661-4. See, also, Piggot v. Eastern Counties Ry. Co., 54 Eng. Com. Law, 229.

Negligence, however, is ordinarily a question of fact for the jury, and we are not prepared to say that the court did not err in its charge in withdrawing that issue from the jury. T. & P. W. W. Co. v. Murphy, 46 Tex. 356.

But to require a reversal in this court because of error in the charge, it must be a material error to the prejudice of the party complaining of it. Id., 368.

Where it is manifest that the erroneous charge operated no injury, as where no other conclusion than that arrived at by the jury can be legitimately deduced from the facts, this court will refuse to reverse the judgment. McLane v. Rogers, 42 Tex. 220; Mercer v. Hill, 2 Tex. 287; Lea v. Hernandez, 10 Tex. 137; Howell v. Nutt, 12 Tex. 266; Hubby v. Stokes, 22 Tex. 220; Sypert v. McGowen, 28 Tex. 635; Allbright v. Corley, 40 Tex. 112; Carter v. Eames, 44 Tex. 548; Williams v. Conger, 49 Tex. 622; Erwin v. Bowman, 51 Tex. 514.

Such is the rule, although the appellant may have done all in his power at the trial to prevent the court from committing the

error, and to have it corrected in that court. It would seem reasonable that a party who made no complaint of the charge at the trial, but apparently acquiesced in the law as given in the charge by the court, should be required to make a stronger showing that the charge operated to his prejudice, than is required of one who objected at the right time. Hollinsworth v. Holhousen, 17 Tex. 47. But be that as it may, our opinion is, that under the evidence the jury could have come to no other conclusion than that the injury, if it was the result of using unsound rope furnished by defendant, was caused by the negligence of defendant. The defendant introduced no evidence whatever tending to show what precautions, if any, were taken by it to secure good and safe appliances for the use of its employés. The evidence fails to point to any diligence exercised by the company in the discharge of its duty. If the jury found the injury to be the direct result of a defective rope furnished by defendant, we do not see, under the evidence, that they could have found that there was no negligence in requiring of its employés such work with such appliances. If there was error in the charge, it did not operate to appellant's prejudice. In regard to other errors assigned, it is believed to be unnecessary to say more than that we find none justifying a reversal of the judg

NASHVILLE, CHATTANOOGA AND ST. LOUIS R. R. Co.

v.

WILLIAM F. WHEELER.

(Advance Case, Tennessee. January 7, 1882.)

Plaintiff was a brakeman in the service of the defendant railroad company, and while coupling cars was injured. Held, that he assumed the risks and dangers incident to the service, and could not recover compensation for any accidental injury: Held, further that the engineer and brakeman, operating a train, are fellow servants.

EAST and TOGG, for plaintiff in error.
Bethe and Williams, contra.

MCFARLAND, J.-Wheeler, while employed as brakeman for the railroad company, was attempting to "couple" the cars of a freight train on which he was engaged and in doing so his hand was caught, causing the loss of one of his fingers and the permanent injury of

another.

For this injury he has recovered in this action, $1,250 damages. From this judgment the railroad company has appealed in error. The circuit judge said to the jury that the plaintiff placed his right of recovery upon two grounds: 1st. That the company was liable for the injury, because of its failure to provide the safer and more improved mode of coupling the cars. 2d. That in backing the cars to effect the coupling, the engineer carelessly and negligently backed the train too fast. The declaration it is true, contains other allegation of negligence, but the questions made by the proof were as stated by the circuit judge.

Upon this first question the proof showed that there were two kinds of "drawheads" in use, by means of which freight cars were "coupled;" one known as the "open drawhead" the other the "solid drawhead." The former was the older, the latter was the improved and safer device for connecting the cars. The two cars being coupled had the "open drawhead," but the proof tended to show that the plaintiff knew that both kinds were in use; and continued in his occupation without objection.

The judge charged the jury in substance, that if the plaintiff knew that both styles of "drawheads" were in use, the difference being easily apparent to an ordinary observer, and continued to act as brakeman without objection, he could not recover. This was in accordance with the holding of this court, in the case of Hodges v. the East Tennessee, Va. and Ga. R. R. Co. and other companies, and was as full and distinct in favor of the defendant, as could have been desired, and from the proof in this record it is not probable that the recovery was upon this ground.

Upon the other ground the proof showed that the accident occurred in the night, in the attempt to couple two portions of a freight that had broken apart. The conductor directed that the train be "coupled up," but did not remain to superintend it himself, going at the time into the depot to attend to other business. The proof shows that the engineer backed the part of the train attached to the engine, to within 18 or 24 inches of the car to which the coupling was to be made and then came to a stop. The plaintiff was at the time standing between the cars ready to make the coupling. The engineer could not see the portion of the car or their distance apart; he was, however, signaled by another brakeman to back further, and the brakeman says he gave him the proper signal, indicating that he was to back slowly and but a short distance, but by applying too much steam the train ran suddenly and rapidly back, and the plaintiff's fingers were caught between the bumpers. If the train had been backed slowly, the accident would not have occurred. In brief, there is ample evidence to justify the jury in finding that the injury resulted from the want of care, or negligence of the engineer. This under the course of decision in this state, depends upon the question whether the en

gineer was the "superior" of the plaintiff in such a sense as that the latter was under the authority of the powers and acting under his order in the particular service, or were they fellow-servants employed in a common employment. The general rule of this common law is, that a master is not responsible to the servant for injury resulting from the negligence of a fellow-servant engaged in a common employment, where there has been due care in the selection and employment of the fellow-servants in a common employment. The more recent decision of this court have made exception to this rule, in two respects: 1st. When the two servants are engaged in different departments of service, as for instance, the engineer or hand upon a passenger train, and a section-hand at work on the track. Carrol v. R. R. Co., 6 Heiskell. This exception does not apply in the present case, for it can hardly be said that the different employés constituting "the crew" of a train, are not engaged in the same department of service; they are, no doubt, "fellow-servants." ""

But the other exception is, where one servant is the immediate superior of the other, with authority to order and direct the latter in his duties, as for instance, a squad of hands engaged in repairing the track under the authority of a "Section-boss." In such case it has been held that if one of the hands is injured by the negligence of the "Section-boss," the company is liable. R. R. Co. v. Bottley, 9 Heisk, 866. Hence, as we have stated, the question in this case was whether the plaintiff as brakeman and engineer, occupied towards each other the relation of "inferior" and " superior" in the sense indicated. The practical application of this rule involves some difficulty.

It is no doubt, in the first instance, a question of fact for the jury; and we take it to have been the purpose of the judge to instruct the jury that the result of the case in this aspect, should depend upon their determination of this question of fact. While he does in terms submit to the jury the question, whether the engineer was or was not the superior of the plaintiff; yet the charge as a whole on this question, is somewhat ambiguous. The charge is of that character that the court might if it applied to a doubtful question, reverse because of its ambiguity and tendency to mislead. The more important question, however, is whether the facts do or do not sustain the conclusion that the engineer was the superior, or the plaintiff, in the sense we are considering. There is really little or no conflict as to the facts. The witnesses differ in their conclusions or opinions upon the question, but their statement of facts are substantially the same. The engineer is required to have superior capacity and skill in his art, to acquire wnich requires long service. He receives higher wages than the brakeman, and in fact, higher wages than the conductor or any employé on the train. He has charge of the engine and manages and operates it,