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that appellant remitted to appellee the full amount of the invoices on the six cars, less 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 mot 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 CaS0 to ShOW his right to recover and the extént 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: “If you find from a preponderance of the evidence in the Whole case that plaintiff in all things substantially complied with his said alleged contract with defendant, then you will find for the plaintiff the amount sued for, unless you further find that Russell Keith, as agent of J. H. Keith, agreed with defendant

that he (defendant) might deduct from the contract price, the per cent. as alleged by defendant, or that plaintiff, knowing that the contract was or would be in dispute, accepted and cashed checks for a lesser sum which showed, or gave him to understand, that it was intended for settlement in full by defendant. In which event if you so find your verdict should be for defendant.” “The jury is instructed that, where a sum of money is paid in satisfaction of disputed claims (if you find this was a disputed claim), and the tender, if accompanied by such acts and declarations as amount to a condition that, if the amount is accepted, it is accepted in full satisfaction, as is such that, if the party is bound to understand therefrom, or is such that, if he takes it he takes it subject to such conditions, then the acceptance constitutes an accord and

satisfaction of his claim in full, and he could not recover a further sum.” 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: “The court instructs the jury that, if you find from a preponderance of the evidence that the defendant contracted with the plaintiff for the delivery of a certain amount of apples, and that a controversy as to the price to be paid arose, and the defendant mailed plaintiff checks for certain amounts with invoices which stated that said checks were in payment of the invoices therein, and that said invoices, covered all apples 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 the original purchase price, but if you should find that plaintiff shipped to defendant apples 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 delivered by the appellee to the appellant, under the contract of purchase, Were of such quality and grade, and whether they were packed in such manner, as to comply with the contract. The issue, therefore, as to Whether the appellee had breached his contract in these respects was One Of fact for the jury, and was submitted under correct instructions. The Verdict against the appellant is therefore COnclusive here. Moore v. Thomas, 200 S. W. 790.

[2] The testimony of appellee to the effect that he had instructed his packers to do an extra good job, because the purchaser was not there to 100k after it himself, and that they promised to do it, was not prejudicial to the appellant. This testimony Only tends to prove that the packers had been directed to do their work properly. One of the packerS testified, Without objection from appellant, that he had been thus instructed by Earl Keith and Russell Keith, and that he always did that. It does not occur to us that the above testimony tended to add any additional Weight or force to the testimony already adduced without objection. The jury would not likely have given any additional WGight to the testimony tending to show that the apples had been properly packed. [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. T0 SüStain his COntention he cites the following 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. S31; Barham v. Kizzia, 100 Ark. 251, 140 S. W. 6;

Longstreth v. Halter, 122 Ark. 212, 183 S. W. 177. These cases hold, in effect, that: “When a claim is in dispute and a debtor Sends to his creditor a check or other remittance which he clearly states is a full payment of the claim, and the creditor accepts the remittance or collects the amount of the check, without objection, this constitutes a good accord and satisfaction.” Syllabus, Longstreth V. Halter, Supra. But the court was not warranted in inStructing the jury as il 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 COnStituted an a CCOrd and Satisfaction. The 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. There is no reversible error, judgment must be affirmed.

and the

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

(Supreme Court of Texas. .May 8, 1918.)

1. MASTER AND SERVANT ©=>284(3)—INJURIES TO SERVANT-SCOPE OF EMPLOYMENT-QUESTION 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 ©->291(1)—INJURIES TO SERVANT—INSTRUCTIONS.

In servant's action for injuries, instruc

tion 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 ©:289(1)—INJURIES T0 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 6:1050(1)—HARMLESS ERROR—EVIDENCE—ADMISSIBILITY. In 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.

C:539% (1)—EXPERTS-QUALI

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certificate of the Court of Civil Appeals, to Wit: This was a suit by Joe K. Stephens to recover damages for personal injuries alleged to have been inflicted upon him while in the service of the Houston Belt & Terminal, Railway Company, and upon trial before a jury verdict and 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 the book to the chief clerk's office. Appellee had been employed for one month as a call | boy by the International & Great Northern Railway Company prior to his employment by appellant, 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 cocar 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 return 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 company and appellant, except that it appears the train was in and departing from appellant's 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 asked him for a job, and he said, ‘Yes, there is a place open for a car checker, and he asked 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 J 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

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

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little end doors, I would have to take them, too, and write them in the seal record, put them down in the Seal record. I Would do that Work whenever a train would come into wthe yard. The yard was about two miles long, I guess; I don’t know where the limits are, but the main tracks across are about 2 miles; there were two yards. Well, there is one they call the ‘New Yard, then an old yard, and the 49 was the “South Yard.' I guess there would be three yards, if you count those separately. Those yards were named by 49' and the ‘old yard.” The old yard was right along where the Santa Fé freight depot used to be, the first tracks before they built this new part down there; that was inside the corporate limits of Houston. The 49 yard was about 3 miles or 3% miles below the old yard. The dimensions of the old yard, the one in the city, the length of the yard, it was a mile and a half across, or 2 miles, and the width is—it has about seven or eight tracks, I suppose. In the old yard in the city here, I think theresis seven or eight tracks, may be ten, I am not certain how many; there was four in the 49 yard then, I believe, I am not sure. My duties required me to check cars in both of these yards. The trains that I would check in the old yard would generally be on the side track, on either side of the main line; they were on different tracks, they would pull in on any, most, that was open. I didn’t have a particular place where I checked every train. The way I would find out when I had to check a train, the chief clerk would tell me... I would have to check about 15 or 18 or 20 trains a day, may be, 15 or 18. Assuming that a train has come into the old yard, the one in the city, and that I have been directed by the chief clerk to take the seal numbers, to check it, the way I would proceed: The chief clerk would tell me, whenever a train would come in, that I would have to go out and check it, and I had a book there that we called a ‘Seal Record,” and I would go out where this train was, it would be on One of the side tracks, and I would start at One end and take the side seals and put them down in the book; then, I would go in between and get the end seals, and, after finishing that side, I would walk on the other side and take them the same way as the other side, then take the seal record back to the office. The seal record was kept in the chief clerk's office. It would be on his desk when he would tell me to check a train, or in one of the pigeon holes. I would 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 deot, right on Preston by the passenger depot. he 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

check cars between that distance all the Way back to the station, and I did that daily. In checking cars in yard 49, one way I would check them there, every morning in the old yard, I would have to check every morning, I would have to check that every morning, take the numbers and initials of all cars in the yard every morning; that had to be done every morning; that was in addition, to the work, of checking the trains. Then, at the South Yard, all I would do down there was, I would check the whole yard. To get from the old yard to the south yard, or yard 49, I would have to ride, with a switch engine going down, or other trains that stopped there, and I would get back the same way, I would have to ride. I did not have any particular train or particular engine that I would ride in going to and from this yard; I would take any that came to hand. In doing my work in the old yard, the one in the city here, the way I would get about in the yard, I would, if I was checking a train going out or in, I would know where the train was before I left, he (meaning the yardmaster) would tell me where it was, then I would walk out and check it as much as I could. It had occurred that before I finished checking the train that the cars in it would be moved, that happened every once in a while. In that case, about the work, I would have to get on them wherever they took the cars. I would get on the side or the top, I generally got on right where 1 checked, right where I would be checking; I would hang on the side, on the handlebars at the side and the end of the car, that ran by the Side of the car; and if the car was moved, I would catch onto it and ride it until it came to a stop ; then I would start checking again, I would go on with my checking; I done that often, I had to do that because they moved them (meaning the train) often. When I would be going to check a train that was some distance away, and the engine or car, or train, happened to be moving in that direction, my practice was, I would ride if there was one coming that way. Now, after I would get through with my work, and the engine, or engine and car, or train, was passing in the direction of the depot, where I would have to leave my seal record, I would ride if there was one that was going that way; I done that every time, may be two times a day; any time they came by I would do that, I did that often both in going to my work and returnIng.

“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. I 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. “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 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 track just below the freight depot, the old yard, which is on that side of the main line, and I went out there; it was about 7, I guess, or 7:30 at night, getting—just getting dark, and I didn’t have any lantern ; they didn’t furnish me any. On the way down I found Clifford Joplin who was a car checker in the yard, and he said he would go with me. He had a lantern, and we started. We went down on the other side, the east side, I guess of this train, and he was going up and getting the seals with the lantern and seeing what they were. He would go in between the cars and get the end seals, then the side seals, and he would bring the lantern back, and I would put them down in the book; that went up on the east side; and we were turning to come down on the other side and was getting the seals on that side, and we were...just finishing up when a train COme up pulling Very Slow-it Was about 8 o'clock, I suppose, and we were supposed to get off at 6-and We got on this train to go back to the depot, he had just got on, and I had got on and rode about 10 or 12 feet when I got hit in the side by a switch stand, and it knocked me off. My right foot went under the truck of the caboose, and this boy, when he saw what happened, he got off (meaning Clifford Joplin), and he seen that I was hurt, and he flagged a switch engine that was coming right in behind that train, and they put me in the cab of the engine and took me to the St. Joseph's Infirmary, and they amputated my leg, my foot. They cut it off about 2 inches above the ankle. The train that I got on was going north. I undertook to get on the other side, the east side, I guess it is. On the other side of the depot would be on the east side. It was a caboose that I undertook to mount; I didn’t know at . that time what kind of a caboose it was, it had a side step on it; that ran in, right along the side door. There was one door

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 under-. took 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. “I say I was 18 years old when I entered the service of the defendant company. My appearance then as to being a boy or otherwise, I was young-looking for my age at that time; I weighed at that time about 118 or 119. My face was smooth. I suppose I have grown 4 or 5 inches since then. I was small for my size at that time. At that time boys were employed in the service of car checking. At the time I was employed there was one car checker that worked in the same part of the yard I did, and there was a transfer clerk. Clifford Joplin was the name of the one who worked in the yard with me. He was a boy about my age. He was with me on the night of the injury. In doing his work he would ride the cars under the circumstances I would. They called that switch the old round house switch. I was never told by anybody that if I undertook to ride a car under the circumstances I was doing on the night I was injured by that SWitch stand that I would be in danger of being knocked off by it; nobody ever told me it was too close. * * * When I would go to the South yard I would go on a switch engine or whatever was going down. While I was checking cars in the Congress street yard, if they were moving, why I had to get on; if they were moving, I got on them and went with them. I had to get on them or lose trace of them when the switch engine took the cars away. In other words, if I had not finished checking, if checking a train when I was moved, I would have to go with it to finish checking it. That is the purpose I got on the train for. * * * This train that I was checking was south of the freight depot on the side track east of the main line. About two or three blocks south from the freight depot. I don't know exactly about how many cars there were in that train, I suppose about 30. The train was not moving at any time I was checking the cars there, that train. I_stated that on my way down I met Clifford Joplin, and he went down.

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