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The appellant asked the court to instruct the jury to find the issues in its favor, which the court refused. Appellant duly excepted. The appellant also asked the court to instruct the jury as follows:

that appellant remitted to appellee the full satisfaction of his claim in full, and he could amount of the invoices on the six cars, less not recover a further sum." 50 cents per barrel. The remittances were by separate checks for each carload, having in the left-hand corner of the check the number of the car. Each statement sent and attached to the check had the corresponding number of the car. On each statement appellant had expressly stated that the check was in payment of the invoices, and appellant requested an acknowledgment of the receipt of the check. The appellee admitted receiving the statements, and knew prior to receiving them that his son, Russell, had had a controversy with appellant in regard to the apples.

The testimony on behalf of the appellee tended to prove that Russell Keith was not his agent or partner, and was not authorized by appellee to make any deductions from the contract price of the apples; that the apples were of the quality, and were packed in such manner as to show that the appellee did not breach his contract. The testimony on behalf of the appellee also tended to show that appellee, while receiving the checks, did not make any acknowledgment to appellant in receipt of the same, and he did not accept the same in full payment and satisfaction of the amount claimed by him to be due from appellant on the contract. The court instructed the jury, stating the issues, and told them that the burden was upon the plaintiff (appellee) in the whole case to show his right to recover and the extent of his recovery by a preponderance of the evidence, and that the burden was upon the defendant (appellant) to prove that Russell Keith was the agent of the appellee, and that he, as such agent, agreed with defendant to deduct 50 cents per barrel for want of proper grade and packing, and also to prove that there was a settlement in full by accord and satisfaction. The court also gave the following instructions, to which appellant offered no objections:

"The court instructs the jury that, if you find from a preponderance of the evidence that the defendant contracted with the plaintiff for that a controversy as to the price to be paid the delivery of a certain amount of apples, and arose, and the defendant mailed plaintiff checks for certain amounts with invoices which stated therein, and that said invoices covered all apthat said checks were in payment of the invoices ples delivered to defendant, and that defendant accepted and cashed said checks, then this would be an accord and satisfaction, and your verdict should be for the defendant."

The court refused, and defendant duly excepted.

The court then gave the following instruction, at appellant's instance:

"The court instructs the jury that, if you fail to find an accord and satisfaction between the parties, or if you fail to find that Russell Keith, acting as an authorized agent of plaintiff, made an agreement to deduct a certain amount from find that plaintiff shipped to defendant apples the original purchase price, but if you should which were defective, inferior in grade, or were slack in pack, and plaintiff contracted to ship apples of a better grade and pack, and that defendant is damaged thereby, then the defendant would be entitled to a set-off in the amount he is damaged, not to exceed the amount in controversy therein, and the burden of proof is on the plaintiff to show compliance with said contract before he can recover."

Plaintiff duly excepted.

The jury returned a verdict in favor of the appellee for $314. This appeal is from a judgment in appellee's favor in that sum.

Cohn, Clayton & Cohn, of Little Rock, and Jeff R. Rice, of Bentonville, for appellant. Mauck & Seamster, of Bentonville, for appellee.

WOOD, J. (after stating the facts as above). [1] There was a sharp conflict in the evidence as to whether the apples de"If you find from a preponderance of the livered by the appellee to the appellant, unevidence in the whole case that plaintiff in all der the contract of purchase, were of such things substantially complied with his said alleged contract with defendant, then you will quality and grade, and whether they were find for the plaintiff the amount sued for, un- packed in such manner, as to comply with less you further find that Russell Keith, as the contract. The issue, therefore, as to agent of J. H. Keith, agreed with defendant that he (defendant) might deduct from the con- whether the appellee had breached his contract price the per cent. as alleged by defend- tract in these respects was one of fact for ant, or that plaintiff, knowing that the contract the jury, and was submitted under correct was or would be in dispute, accepted and cash-instructions. The verdict against the aped checks for a lesser sum which showed, or gave him to understand, that it was intended pellant is therefore conclusive here. Moore for settlement in full by defendant. In which v. Thomas, 200 S. W. 790. event if you so find your verdict should be for defendant."

[2] The testimony of appellee to the effect "The jury is instructed that, where a sum of that he had instructed his packers to do an money is paid in satisfaction of disputed claims extra good job, because the purchaser was (if you find this was a disputed claim), and the not there to look after it himself, and that tender, if accompanied by such acts and declarations as amount to a condition that, if the they promised to do it, was not prejudicial amount is accepted, it is accepted in full satis- to the appellant. This testimony only tends faction, as is such that, if the party is bound to prove that the packers had been directed to understand therefrom, or is such that, if he takes it he takes it subject to such conditions, to do their work properly. One of the packthen the acceptance constitutes an accord anders testified, without objection from appel

lant, that he had been thus instructed by | Longstreth v. Halter, 122 Ark. 212, 183 S. Earl Keith and Russell Keith, and that he W. 177. These cases hold, in effect, that: always did that. It does not occur to us that "When a claim is in dispute and a debtor the above testimony tended to add any addi- sends to his creditor a check or other remittance tional weight or force to the testimony al- claim, and the creditor accepts the remittance which he clearly states is a full payment of the ready adduced without objection. The jury or collects the amount of the check, without obwould not likely have given any additional jection, this constitutes a good accord and satwoight to the testimony tending to show that isfaction." Syllabus, Longstreth v. Halter, suthe apples had been properly packed.

pra.

But the court was not warranted in in

structing the jury as a matter of law that the undisputed evidence in the instant case constituted a complete accord and satisfaction. It was an issue for the jury under the evidence as to whether the payment made by the appellant and accepted by the appellee

[3] Appellant's prayer for instruction No. 2 was fully covered by the court's instructions 4 and 5. Appellant contends that the undisputed evidence shows that there was an accord and satisfaction, and that the court should have so instructed the jury. To sustain his contention he cites the follow-constituted an accord and satisfaction. The ing cases: Rose v. Lilly, 170 S. W. 483; Wilks v. Slaughter, 49 Ark. 235, 4 S. W. 766; Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394, 27 L. R. A. (N. S.) 439; Cunningham Com. Co. v. Rauch-Darrach Grain Co., 98 Ark. 269, 135 S. W. 831; Bar- There is no reversible error, and the ham v. Kizzia, 100 Ark. 251, 140 S. W. 6; judgment must be affirmed.

issue was submitted under instructions which declared the law applicable to the facts and which were in conformity with the law as announced in the above cases, upon which the appellant relies.

certificate of the Court of Civil Appeals, to

HOUSTON BELT & TERMINAL RY. CO. v. wit:
STEPHENS. (No. 2530.)

This was a suit by Joe K. Stephens to recover damages for personal injuries alleged to have (Supreme Court of Texas. May 8, 1918.) been inflicted upon him while in the service of 1. MASTER AND SERVANT 284(3)-INJURIES the Houston Belt & Terminal Railway ComTO SERVANT-SCOPE OF EMPLOYMENT-QUES-pany, and upon trial before a jury verdict and TION FOR JURY.

In car checker's action for injuries, facts that no specific directions were given to him about riding trains, except that he should ride trains moved while checking, and that car checkers in order to work faster habitually rode trains in the yards in going to their work, and that the railroad knew and approved such method, negatived holding as matter of law that the checker, when injured while attempting to board a moving train to return to the station, was acting without the scope of his duties. 2. MASTER AND SERVANT

TO SERVANT-INSTRUCTIONS.

291(1)-INJURIES

In servant's action for injuries, instruction requiring as prerequisite to verdict for plaintiff that in boarding a moving car plaintiff was performing his duty in the manner expected of him by the defendant, and that the switch stand which struck plaintiff was so located as to indicate negligence of defendant, did not permit recovery on state of facts constituting plaintiff a mere licensee.

3. MASTER AND SERVANT 89(1)-INJURIES TO SERVANT-SAFE PLACE-RAILROADS.

The obligation of the master to exercise ordinary care to provide reasonably safe premises can be invoked as the basis for liability for a personal injury to a servant only when the injury has been received in the line of the servant's duty.

4. APPEAL AND ERROR 1050(1)-HARMLESS ERROR-EVIDENCE-ADMISSIBILITY.

In servant's action for injuries when boardIn servant's action for injuries when boarding a car to go back to the station to report, admission of his statement that he would not have ridden on the car had he been instructed not to ride cars was not reversible error, since it could not affect the jury's verdict on the facts, as they existed showing that he had not been so instructed.

5. EVIDENCE

FICATION.

5392 (1)-EXPERTS-QUALI

The yardmaster of the defendant railroad could say whether it would have been safer to have the tracks further apart, since he was a duly qualified expert upon the subject.

Certified Questions from Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Joe K. Stephens against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff, defendant appealed, and the judgment was reversed and the cause remanded, and the case came up on certified questions from Court of Civil Appeals, 155 S. W. 703. Questions answered.

Andrews, Ball & Streetman, McDonald Meachum, and Jno. M. King, all of Houston, for appellant. Jno. Lovejoy and J. W. Parker, both of Houston, for appellee.

GREENWOOD, J. Questions certified from the Court of Civil Appeals of the Eighth Supreme Judicial District of Texas, in an appeal from the district court of Harris county.

This case is before us on the following

judgment in his favor was rendered for $15,000.
Appellee, upon the date of his injury, was a
minor, 18 years of age, and was employed by
appellant as one of its car checkers in its yards
situated in and near Houston, Tex., and it was
his duty to enter the numbers, initials, and seals
numbers of cars received by appellant in said
yards in a book provided for that purpose. This
book was kept in the office of the chief clerk
in the freight depot at the end of appellant's
yards, and whenever appellee had finished check-
ing a train of cars it was his duty to return
Appellee
the book to the chief clerk's office.
had been employed for one month as a call
boy by the International & Great Northern Rail-
way Company prior to his employment by ap-
pellant, and had been in the service of appellant
for one month prior to the date of his injury.
On the occasion of his injury appellee and a co-
car checker, Clifford Joplin, had just finished
checking a train of cars, and the day's work
was ended, but it was appellee's duty to re-
turn the seal record back to the office of the
chief clerk. Just at this time a train passed,
and appellee and Joplin undertook to board the
caboose of same for the purpose of riding to the
depot, which the train would pass, where it
was appellee's duty to go to deposit his record
book. Joplin succeeded in boarding the train,
and appellee was attempting to do so, but before
being able to lift himself into the caboose the

movement of the train carried him forward and

against an upright switch stand adjacent to the track, and the contact with the switch stand precipitated him to the ground, and the wheels of the caboose passed over and severed one leg, The train which he attempted to board and from which he was thrown was a through Trinity & Brazos Valley train, which was departing for the north from appellant's yards, without any stop. The switch stand was negligently placed too near the track.

The train was operated by the Trinity & Brazos Valley Railway Company, and the record is silent as to the relation between such the train was in and departing from appellant's company and appellant, except that it appears yards, and was upon its tracks and would be upon appellant's tracks until it passed the depot for which appellee was bound.

The evidence pertinent to a consideration of the questions certified is as follows:

Appellee, Stephens, in his own behalf testified: "I worked for the Houston Belt & Terminal Company. I began to work for that company on September 29, 1908, in the yards, at Houston, in the capacity of car checker. Chief Clerk Hope employed me. I went down there and is a place open for a car checker,' and he asked asked him for a job, and he said, 'Yes, there me did I know how to do that, and I told him I had never done that kind of work, and he said I would do all right, and he put me to work. The only instructions he gave me was about what I would have to do each day, just the kind of work I would have to do checking cars, and things like that. I worked there one month, up to the time of my injury. During that month I was checking cars, every train that would come in; while there I was checking cars. How I would do that work, that is, what I mean by checking cars, I had a book called a seal record, and when a train came in I would have to go out and take the seals off the side doors, see what they were, some were numbers and some were just letters, then the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

little end doors, I would have to take them, too,, check cars between that distance all the way and write them in the seal record, put them back to the station, and I did that daily. In down in the seal record. I would do that work checking cars in yard 49, one way I would check whenever a train would come into the yard. them there, every morning in the old yard, I The yard was about two miles long, I guess; would have to check every morning, I would I don't know where the limits are, but the main have to check that every morning, take the numtracks across are about 2 miles; there were two bers and initials of all cars in the yard every yards. Well, there is one they call the 'New morning; that had to be done every morning; Yard,' then an old yard, and the 49 was the that was in addition to the work of checking 'South Yard.' I guess there would be three the trains. Then, at the South Yard, all I would yards, if you count those separately. Those do down there was, I would check the whole yards were named by '49' and the old yard.' yard. To get from the old yard to the south The old yard was right along where the Santa yard, or yard 49, I would have to ride, with a Fé freight depot used to be, the first tracks be- switch engine going down, or other trains that fore they built this new part down there; that stopped there, and I would get back the same was inside the corporate limits of Houston. way, I would have to ride. I did not have any The 49 yard was about 3 miles or 32 miles particular train or particular engine that I below the old yard. The dimensions of the old would ride in going to and from this yard; I yard, the one in the city, the length of the yard, would take any that came to hand. In doing my it was a mile and a half across, or 2 miles, and work in the old yard, the one in the city here, the width is-it has about seven or eight tracks, the way I would get about in the yard, I would, I suppose. In the old yard in the city here, I if I was checking a train going out or in, Í think there is seven or eight tracks, may be would know where the train was before I left, ten, I am not certain how many; there was four he (meaning the yardmaster) would tell me in the 49 yard then, I believe, I am not sure. where it was, then I would walk out and check My duties required me to check cars in both of it as much as I could. It had occurred that these yards. The trains that I would check before I finished checking the train that the in the old yard would generally be on the side cars in it would be moved, that happened every track, on either side of the main line; they were once in a while. In that case, about the work, on different tracks, they would pull in on any, I would have to get on them wherever they most, that was open. I didn't have a particular took the cars. I would get on the side or the place where I checked every train. The way I top, I generally got on right where I checked, would find out when I had to check a train, the right where I would be checking; I would chief clerk would tell me. I would have to hang on the side, on the handlebars at the side check about 15 or 18 or 20 trains a day, may and the end of the car, that ran by the side of be, 15 or 18. Assuming that a train has come the car; and if the car was moved, I would into the old yard, the one in the city, and that catch onto it and ride it until it came to a I have been directed by the chief clerk to take stop; then I would start checking again, I the seal numbers, to check it, the way I would would go on with my checking; I done that proceed: The chief clerk would tell me, when- often, I had to do that because they moved them ever a train would come in, that I would have (meaning the train) often. When I would be to go out and check it, and I had a book there going to check a train that was some distance that we called a 'Seal Record,' and I would go away, and the engine or car, or train, happened out where this train was, it would be on one to be moving in that direction, my practice was, of the side tracks, and I would start at one I would ride if there was one coming that way. end and take the side seals and put them down Now, after I would get through with my work, in the book; then, I would go in between and and the engine, or engine and car, or train, was get the end seals, and, after finishing that side, passing in the direction of the depot, where I I would walk on the other side and take them would have to leave my seal record, I would the same way as the other side, then take the ride if there was one that was going that way; seal record back to the office. The seal record I done that every time, may be two times a day; was kept in the chief clerk's office. It would any time they came by I would do that, I did be on his desk when he would tell me to check that often both in going to my work and returna train, or in one of the pigeon holes. I would ing. then get the record and go out into the yard. After I finished checking I would take it back to the chief clerk's office. The seal record would be in my possession only the times when I was checking trains. The office in which the seal record was kept was in the old freight depot, right on Preston by the passenger depot. The trains that I would have to check would be located, they would be on different tracks, in different parts. This depot where the seal record was kept with reference to these seven or eight or ten tracks that I have mentioned as being in the yard, the old yard, is at the north end of the tracks. With reference to the depot, some of the tracks was a good piece away, then others would run right up to it. The closest track to the depot was the main line. I don't know the numbers (meaning the tracks), I didn't know they were numbered. The yard was crooked; there is a curve in the yard. Most of them are straight on the other side, some straight ones on the other side. The furtherest one of these tracks is about a half a mile, I suppose, from this depot, at the south end, but crosswise, it was about a block or something like that, and they ran from the main line across to this track furtherest away, and that distance was about a block. Sometimes I would have to go to the south end of the old yard in getting to a train that I had to check in this old yard, and that would be, I suppose, about three-quarters of a

I

The yardmaster's name was Mayfield, Charley Mayfield, I believe. I saw him in the yard; he was in the yard all the time. The yardmaster had charge of the yard there, this man Mayfield. He was where he could see me, he was up and own in the yard all the time. My duties required me to work there in the yard, and his (the yardmaster's) duties required him to work there in the yard; he was working right at the same place I was. He was where I could see him during the day. I was right there working where he would be passing at all times of the day, and I could see him; he would be passing right by me. was close enough to speak to him; I was close enough to him to touch him. That was often; that was a daily occurrence to be close to him. We were both working there in the same place. Not when I saw him would there be any obstructions between me and him; he would be right along by me. I have talked with him. He didn't have so much to do about telling me about performing my duties, only going to 49 and doing my work. Of course if I didn't do my work, he would have to tell me. They have told me to ride cars in the yard there, the yardmaster did that-I mean Mr. Mayfield. These trains that would come into the yard that I would have to check, there would be the engineer and fireman and the conductor, and may be two brakemen_composing the crew. I would

cars moving through the yard there all the time. I think there was four switch engines employed there in the yard then. The engineer and fireman and the foreman of the engine and three helpers composed the switch crew, and each engine had that number of men in its crew. Those men were under my observation all the time. I have seen them get on and off cars moving in the yard there, moving on the same tracks that I mentioned, and moving on these tracks on which I checked the trains. It was a frequent occurrence to see these men getting on and off moving cars in the yard there, it happened all the time. With reference to riding or not riding cars, they never told me not to ride them; the yardmaster just told me to ride, and the chief clerk told me to do work where I would have to ride, and where I did ride, and neither of them never told me not to ride cars. In riding cars my idea was it was my duty, I would have to do it, or I couldn't do the work. My work was done in the day. I worked days. I would go on duty at 7 in the morning, and was supposed to go off duty at 6. I had never worked as a car checker for any other company. The work I did there in the yard was the first work I ever did as a car checker.

on each side of the caboose; the caboose had side doors, one of those kind that had side doors. Underneath the door there was a board, I guess about 12 inches wide-I don't know about that-and about 7 or 8 feet long. This board was there as a step to be used in entering the door of the caboose. I think the caboose door was closed, most of it anyhow. It was the step that I undertook to get on, this board or step. My object in getting on it was to go to the depot to put the seal record and the lantern up to go home. Joplin had got on just before I did; he got on ahead of me. I did not know that that switch stand, recall that that switch stand, was there when I undertook to get on; there was no telling whether it was close or not. It was dark; there was no lantern on it; it was not lit if it was. I say I didn't know it was there when I went to get on. It must have been an upright switch stand that struck me, it hit me on the side right along here. (He stands up and indicates.) I had a watch here, and it hit the bottom of the watch. I know I was struck by the switch stand; I did not know that it was close enough to the track to strike me. I had never learned at any time while I was at work there in the yard that that switch stand was close enough to strike a man riding on the foot-board, or undertaking to get on it when passing, I never heard anybody say; nobody never told me this switch stand was too close, and I didn't know it was too close for anybody to be hit by it. Now, when I undertook to get on this board, and while I was on it, as to whether I did or not consider that I was in the performance of my duty as a car checker, well, I thought it was part of my duty to go from any part of the yard to the office, and from any part of the-I mean the office to other parts of the yard, to ride on the train. I knew where all of the tracks were, and I knew that there is a switch for every side track, and I knew it prior to the accident.

"Nobody, I guess, had ever told me what were the duties of a car checker other than as I have stated-they had not told me. Nobody had undertaken to tell me what were the duties of a car checker other than as I have told here. Only the time I got hurt did any accident befall me while I was working there as car checker, that very day, that very time. That was October 29, 1908. I had been working there then just one month. To tell the jury in my own language how that accident happened: Well, on the 29th of October, 1908, the chief clerk, Parsons, sent me out to check a train that had just come in from the south, I think it was a B. & M. train, I think there was about 30 cars in this train, and it was on the side "I say I was 18 years old when I entered the track just below the freight depot, the old yard, service of the defendant company. My appearwhich is on that side of the main line, and I ance then as to being a boy or otherwise, I was went out there; it was about 7, I guess, or young-looking for my age at that time; I weigh7:30 at night, getting-just getting dark, and ed at that time about 118 or 119. My face was I didn't have any lantern; they didn't furnish smooth. I suppose I have grown 4 or 5 inches me any. On the way down I found Clifford since then. I was small for my size at that time. Joplin who was a car checker in the yard, and At that time boys were employed in the service he said he would go with me. He had a lan- of car checking. At the time I was employed tern, and we started. We went down on the there was one car checker that worked in the other side, the east side, I guess of this train, same part of the yard I did, and there was a and he was going up and getting the seals with transfer clerk. Clifford Joplin was the name the lantern and seeing what they were. He of the one who worked in the yard with me. He would go in between the cars and get the end was a boy about my age. He was with me on seals, then the side seals, and he would bring the night of the injury. In doing his work he the lantern back, and I would put them down would ride the cars under the circumstances I in the book; that went up on the east side; would. They called that switch the old round and we were turning to come down on the other house switch. I was never told by anybody that side and was getting the seals on that side, if I undertook to ride a car under the circumand we were just finishing up when a train stances I was doing on the night I was injured come up pulling very slow-it was about 8 by that switch stand that I would be in danger o'clock, I suppose, and we were supposed to of being knocked off by it; nobody ever told me get off at 6-and we got on this train to go it was too close. * ** When I would go to back to the depot, he had just got on, and I the south yard I would go on a switch engine had got on and rode about 10 or 12 feet when or whatever was going down. While I was I got hit in the side by a switch stand, and it checking cars in the Congress street yard, if knocked me off. My right foot went under the they were moving, why I had to get on; if they truck of the caboose, and this boy, when he saw were moving, I got on them and went with what happened, he got off (meaning Clifford them. I had to get on them or lose trace of Joplin), and he seen that I was hurt, and he them when the switch engine took the cars flagged a switch engine that was coming right away. In other words, if I had not finished in behind that train, and they put me in the cab checking, if checking a train when I was movof the engine and took me to the St. Joseph's ed, I would have to go with it to finish checking Infirmary, and they amputated my leg, my foot. it. That is the purpose I got on the train for. They cut it off about 2 inches above the ankle. * * * This train that I was checking was The train that I got on was going north. I south of the freight depot on the side track east undertook to get on the other side, the east of the main line. About two or three blocks side, I guess it is. On the other side of the south from the freight depot. I don't know depot would be on the east side. It was a exactly about how many cars there were in caboose that I undertook to mount; I didn't that train, I suppose about 30. The train was know at that time what kind of a caboose it not moving at any time I was checking the cars was, it had a side step on it; that ran in, there, that train. I stated that on my way right along the side door. There was one door down I met Clifford Joplin, and he went down

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