I don't know how long it took | ride trains after finishing my work in the yard * * * me to check the cars in that train, about 30 or 40, something like that, minutes, may be an hour, I am not certain. I had just finished checking the cars in that train when I had started back to the depot. When I finished I was ready to go back to the depot. I didn't have to check any more that night. My work of checking was finished for the night; that was the last train I would have to check-my work wasn't finished, I had to take the seal record and put it in the office before I left. They had to stay in the office all the time because they done their work by that, by the seal record, by that book, I mean. When I finished checking this train, I was two or three blocks then south of the depot. This train that was passing that I was injured by, at the time I was injured, was a north-bound freight train-I don't know what it was-that train was pulling through the yard going north. It was not a string of cars with a switch engine, or anything like that; it was a freight train; and it was not my duty, or I didn't intend at that time, to check any cars in that train, and I hadn't checked any cars in that train. I had just got on the side of that train; I made an effort to ride back to the freight depot to put this seal rècord up, and this other boy had to put his lantern up, and we would be off. The reason I attempted to get on this train instead of walking down to the depot, it is customary for all employés in the yard to ride if they want to go to any part of the yard there; if they go out of the yard, they got on the train and go out. As to its being a fact that I just decided it would be a little more convenient to go back that way, and for that reason I got on that train-it was customary; that was my understanding. I say it was customary for them to ride if going back to the depot, and you can do your work quicker. As to whether it is a fact that I attempted to get on the train because it was more convenient for me to do it than to walk, well, you can do your work quicker; it is just as easy to do your work that way; you can do your work quicker. As to whether that is the reason I attempted to get on the train instead of walking back to the depot, I do anything to do my work quicker; and in daytime even the yardmaster sees you, and all the others see you; it is customary to ride on trains. On this particular occasion I had finished all my work of checking cars, I had finished checking the train, and I was going back to the depot to leave my book there, and then I was going home; that was part of the work, to put the book back, I was not finished until the book was in the office. After I put up the book, I didn't have any more work to do that night. I had checked cars in Defendant introduced and read in evidence the south yard. I said that when I worked at paragraphs 16 and 17 of the application for the south yard to check cars, when I went there, work signed by plaintiff. "16. Do you underI would get on the switch engine and ride out. stand that in the discharge of your duties it will "Q. Now, Joe, isn't it a fact that the only be sometimes necessary for you to use tracks, time you were authorized to get on cars and cars, machinery and appliances that are defecride was when you were going out to the south tive, and that it is necessary for you to examyard, or coming back, or when you were check-ine cars, machinery and appliances, that you ing a train of cars, and they moved the cars have to use carefully, to prevent injury to yourbefore you finished your checking? A. No, sir; self and others? Yes. Also do you understand you could ride any time; the yardmaster was that as far as possible you should acquaint around there; and if it was not customary, I yourself with the condition of the track? suppose he would have said so; he could have Do you agree to use diligence in ascertaining said so, I suppose. He has told me to go out to the condition of cars, machinery and appliances 49, and he has told me to come back, and if with which you have to come in contact or use the train was moving, he has told me to get on in the performance of your duties which would there and check it, and I had to check it; he render your work dangerous or subject you to would tell me to ride. If trains that I was injury? Yes." checking started to move, why I would get on and go with the train to finish my checking. I was standing a little back of the door on the side upright on the running board when I was struck. It is a fact that I testified on a former trial of this case, when I was asked the question: At the time you were hurt you were standing up on that running board?' and I an "I say that I had been working for the Houston Belt & Terminal Company about a month when the accident happened." C. E. Mayfield, defendant's yardmaster at the time appellee was injured, testified: "The people employed in that yard and about it are under my supervision. I had authority to forbid any practice that I saw proper, and that ap outside of switchmen. Of course that was their business. With reference to my answering Col. Jackson's questions that I didn't tell Joe to ride on passing trains or any cars switching around there going to the office after he had gotten through checking in order to deliver the books, I don't believe I did tell him not to do it. * * * I don't suppose I would know Joe Stephens if I would see him. I remember the circumstances of his being injured. I remember a young man by that name in the employ of the company. I never did give instructions to him or any one else in the Congress street yard to get on moving trains and ride from the yard up to the office. Within my knowledge while I was yardmaster there, or while I was switchman there, it was not the custom and practice for car checkers, after finishing their work, to get on moving trains or cars and riding to the office for the purpose of leaving their book, I don't remember seeing them do it, but I suppose they did do it; I never instructed, permitted, or authorized that; my instructions did not authorize or permit it. *** The south yard is 22 miles from the city yard. * *If the trains happened to be moved at some other place in the yard, as to whether he rode those cars around, and whether it was his duty to do so, in the Congress street yard it was his duty to walk over there and tag them; he had no business on the cars when they were switching them up and down. Say he is now taking the numbers and seals on a string of cars and the switch engine comes along and takes them, moves them entirely, moves them to another part of the yard and mixes them up with some other train or goes around to some other train, if they did that, it would be his duty to go to get the seals and tag them, but-it was his duty to follow the cars; it was his duty to-they marked the cars and seals; they didn't ride the cars in doing that. I couldn't say that I never saw them ride the cars; I don't recollect seeing them ride the cars, because the tracks are close together. As to my being told that they did ride the cars after they got through checking back into the office, I was told the next morning after that young man was hurt; I was not told before that that the boys did it. I was around in the yard every day. I never seen them riding cars back to the office; I see those men riding the cars, I couldn't say whether they were checkers or not. It is not a fact that I have seen those checkers riding cars and following them about for the purpose of doing that work, I didn't see them. I have seen some of them do it, of course I have. I did say I told them to ride the cars down to the lower yard, for the purpose of checking and doing their work. This uptown yard is about five blocks long, five or six blocks, about 1,200 to 1,500 feet." W. B. Edwards, witness for defendant, testified: "I worked for the Trinity & Brazos Valley Railroad Company, and ran over the Houston Belt & Terminal Railway Company's tracks. I held the position of brakeman with the Trinity & Brazos Valley Railway Company; I was working for that company in the year 1908. I do recall something of an accident to the plaintiff, Joe K. Stephens. I was rear brakeman on the train that the accident happened on. The train at the time of the accident was in the Houston Belt & Terminal Railway Company's yard and heading out north to go to Tomball, in what was known as the Congress street yard. That train had come from Galveston; it was a freight train. We stopped out in the lower part of the yard and set out about half of our train; we left with 27 cars. We stopped in the Congress street yard-that was before the accident happened-and then we started out north. I was standing in the caboose door and watching ahead, and the boy that was with Stephens caught the caboose; that attracted my atten tion, and I looked around, I looked back, and as I looked back I saw the boy running to catch the caboose, and just as he reached to catch it, he fell, he struck the switch stand and fell. Í say there was another boy with him, with the one that caught the caboose. This was a box car caboose, a box car converted into a caboose. The boy that caught the caboose was standing on the rear end of the step, on the east side, or right-hand side of the train. The train was going north, and he was standing on the righthand side on the running board. I saw as we were going out we were looking north, and when this boy caught on the caboose that attracted my attention, and I looked around; it was not our intention to stop at the depot; we were going straight through. When the plaintiff stumbled there, I did not know at that time whether or not he had injured himself; I first learned that he had after we arrived at Belt Junction. Belt Junction with reference to the Congress street, yards, I would suppose it is about 5 miles, and it is north, it is north of here. This was between 7 and 8 at night, as well as I can remember. * * * I don't remember whether the following question was propounded to me on the former trial: 'Did you think he got hurt in any way?' and that I answered No, sir.' I suppose the following question was asked me on the former trial, 'You did see him fall off?' and I answered, 'I said just about the time he reached up or caught hold he hit the switch stand' and I suppose it was true when I answered it this way. To the question asked me on the last trial, 'As well as you remember, why couldn't you remember if he was on the ground or if he was on the footboard?' I did answer, 'Just about the time he reached for the iron he fell; it happened so quick, I don't remember whether he swung onto the step or hit the switch stand and fell first.' That was true. I can't state definitely whether his foot was on the board or not, on account of the fact it was done so quick. The step was not dark; the light from my lantern was on the step. I was not looking for any accident to happen, and I didn't, I said, I didn't know about it until I got up to Belt Junction." Clifford Joplin, witness for defendant, testified: "I was employed by the Houston Belt & Terminal Railway Company. I was working for that company in September and October, 1908. I was working for the company at the time of the accident to the plaintiff Joe K. Stephens. My position at that time was checking cars and doing calling, everything of that kind, though I was a car checker. I think that was the same kind of a position that Joe K. Stephens held. Relative to my duties and what I would have to do as a car checker, in the morning, the first thing in the morning, we would have to go out and check the yard; I believe they had three checkers at the time I was there, one for the old roundhouse, and one for the new yard, and one for the old yard. would go out in the morning and check the yards, then come back there, and there would probably be a train or something, and they would send you out to get the numbers and seals of that. They never instructed me about riding on trains, with the exception of going out to the south yard; then you would probably go on a switch engine and ride out, then get off. If I was going out to the south yard, they never told me to get on; I never had any instructions as to returning to the depot after I had finished the train in the Congress street yard. riding trains, I was never given permission by those who employed me to ride trains after I had finished checking a train in the Congress street yard on my way back to the depot. Supposing I was checking a train in the Congress street yard, and before I finished taking the numbers of the cars there and they moved the train, as to what instructions I had as to rid-1 ing that train, if we could get them without getting on the train, why get them, best to get them; we were supposed to get them without getting on if we could; I don't know exactly about getting on, but you would have to get them. I don't know whether it was a month or two months that I had known Joe Stephens prior to the time of this accident; I don't remember the exact time. Joe and I had occasion at times to work together in checking cars; I think he is a little younger than I am; I will be 22 in April. My relations with Joe were friendly while I was working there; they are friendly now, on my part. I remember about the time Joe got hurt down there. At the time of his injuries, I had got through checking; I had checked a Santa Fé train, the 'Bobbie,' I believe they call it. * * * I came over to Joe. Joe was on a B. V. that had been set out, and I had finished mine, and I came over to him and helped him. I had a light; Joe didn't have a light. We finished somewhere between, I don't remember, but 7 and 8 at night. While me and Joe were working there together and in checking that train and taking the numbers off of it, the one that had the book would put them down in the book. Joe had the book on that trip. I would call the numbers off to Joe, and he would put them down in the book. We had finished checking the cars in that train, I had hollered the number on the last car. Then me and Joe started to the depot. The depot was about 22 or 3 blocks from the place where we were when we finished checking the train; we did not walk down to the depot. There was a train coming, and we hopped it; I got on it, and Joe tried to get on; he grabbed at it, and he hit the switch, and I got and I heard him halloa, and he says he broke his leg, and I hopped off and went back to him, and picked him up; I didn't know how bad he was hurt. He had on black stockings, and I picked him up; he wasn't bleeding; and there was a switch engine coming back there, and I flagged it, and we brought him to the depot, and then afterwards taken him to the infirmary in a hack. The train was going north, towards the depot, it was moving between 7 and 8 miles an hour; I say it was a T. & B. V. freight train. I couldn't say for sure whether it was a through train or not; it went right on through. I spoke of some B. V. train Joe was checking, that was the one that came in, and that was set out. That train was a different train from this T. & B. V. train that was going out that me and Joe tried to get on." The court charged the jury as follows: "Now, therefore, if you believe from a preponderance of the evidence that Joe K. Stephens, the plaintiff, was in the employ of the defendant as a car checker, and that it was his duty to enter in a book provided by defendant for that purpose the numbers and initials and the seal numbers of the cars received by defendant in its yards in and near the city of Houston, Tex., and believe defendant expected plaintiff and its other car checkers to ride cars which might be passing when going to or returning from their work in the yard, then it was the duty of the defendant to use ordinary care to furnish plaintiff and its other car checkers a yard that was reasonably safe for performing the work in the manner expected of them; and, if you believe from a preponderance of the evidence that the plaintiff, in the performance of his duty, took the seal numbers of certain cars in defendant's yards in this city, and that after doing that he got on the steps of a caboose attached to a train that was then passing, to ride thereon to the depot for the purpose of leaving the book in which the seal numbers had been entered, and believe that in so doing he was performing his fendant under the circumstances, and believe that after he had got on the said step he came in contact with an upright switch stand and was thereby knocked down and his right foot run over by the wheels of the caboose and injured at the time and place and in the manner substantially alleged in his petition; and you further believe from a preponderance of the evidence that the said switch stand was maintained in such proximity to the track on which the said caboose was moving as to be a menace to the safety of defendant's car checkers in the performance of their duty in the manner they were expected to perform it; and you believe that defendant in so maintaining the said switch stand, if it did that, should have foreseen that plaintiff, or some other car checker, would, in the performance of his duty, in the manner expected of him, be injured by coming in contact with the said switch stand, while riding upon cars passing the same under circumstances similar to those under which the plaintiff was injured, and was guilty of negligence, and believe that such negligence was the proximate cause of the injury of plaintiff; and you, do not believe plaintiff himself was guilty of contributory negligence, or assumed the risk of injury-you will return a verdict for the plaintiff, and assess his damages according to the rule hereinafter given you; but, unless you so find, you will return a verdict for the defendant. "Or, on the other hand, if you do not believe from a preponderance of the evidence that the plaintiff was injured at the time and place and in the manner substantially as alleged by him in his petition, you will, without inquiring further, return a verdict for defendant; or if you do not believe that plaintiff undertook to get on the caboose and was injured after he had gotten the switch stand; or if you believe he was thus on the step thereof by coming in contact with injured, but yet do not believe that the plaintiff was expected in the performance of his duties to ride on the car under the circumstances; on the caboose step and in doing so ran against or if you believe the plaintiff attempted to get the switch stand and was thereby caused to fall and be injured; or if you believe plaintiff's injury was due to dangers and risks and conditions which were ordinarily incident to his service; or if you do not believe the injury of plaintiff or some other car checker under like circumstances, in view of the way plaintiff was expected to perform the services, was one which should have been foreseen as likely to occur under the circumstances-you will, in either, any or all of such cases, likewise return a verdict for defendant." On the trial exception was taken to the admission of certain testimony of appellee. The material portion of the bill is as follows: "Q. If the railroad company, or any of its representatives, had directed you not to ride those cars, would you have ridden them, or not have ridden them? Defendant: I object to that as calling for a conclusion of the witness as to what he would have done, and as being irrelevant and immaterial. Court: I overrule the objection. Defendant: We except. A. If they had ever told me not to, I would not have done it. I couldn't do the work without riding." Exception was also taken to admission of certain testimony of appellant's witness Mayfield. The material portion of the bill is as follows: "Q. You state, in answer to Mr. Jackson's question, that this switch was as close as it was to the track because the tracks were closer? A. Yes, sir. Q. Couldn't you have built your tracks further over? A. They didn't do it. Q. Couldn't you have done it? A. It ain't impossible to do anything. Q. Just answer the question you could have done it? A. Could have done it; yes, sir. Q. The reason the switch stand was as close as it was is because you built It would have been safer to have had them of carrying on its car checking business. further apart, would it not? A. It certainly Such findings must negative the holding, as would. Mr. Burns: We object to the question, 'It would have been safer to have had them matter of law, that appellee was acting withfurther apart, would it not? A. It certainly out the scope of his duties when injured. would,' on the ground that it is certainly calling For, as was said by the Supreme Court of for a conclusion of the witness. Mr. Parker: Pennsylvania, in Rummell v. Dillworth, 111 Pa. 348, 2 Atl. 358: I offer it on the ground-this is the yardmaster, and we have taken his testimony, and he is thoroughly qualified to speak on that point. He was in charge of the yard, and familiar with its construction. Court: I overrule the objection. Mr. Burns: Note our exception." Under the facts stated and evidence quoted above, the majority of this court are of the opinion, under authority of Railway Co. v. Spivey, 97 Tex. 143, 76 S. W. 748, that appellee, in attempting to board and ride upon the train from which he was precipitated, was a trespasser, or, at best, a mere licensee, and as such he accepted the train and track over which it was passing in the condition in which he found them, and that appellant was under no obligation to arrange its yards, tracks, and switch stands to secure his safety while so riding or attempting to ride upon said train, and was not liable for the injury caused by the negligent proximity of the switch stand to the track over which said train was passing. Question No. 1: Is this view of the majority correct? It is objected by appellant that the paragraphs of the court's charge quoted above submit an erroneous basis of recovery and authorize a recovery by appellee upon a state of facts which would have constituted him a mere licensee in riding the train from which he was thrown. The majority are of the opinion that this objection is well taken. Question No. 2: Is this view of the majority correct? Question No. 3: Was the testimony of Stephens and Mayfield quoted in the foregoing bills of exception subject to the objection urged against its admission? Question No. 4: If such testimony was objectionable, does its admission constitute reversible error? The diverse views of the majority and minority of this court upon the questions certified are set forth at length in their respective opinions accompanying this certificate, and the court is respectfully referred thereto for a more complete statement of the conflict existing between the members of this court upon such questions. "The scope of his duties is to be defined by what he was employed to perform, and by what, with the knowledge and approval of his employer, he actually did perform, rather than by the mere verbal designation of his position." certified, was expressed in the "In view of the migratory character of the service, such transportation facilitated the prosecution of the work, and was beneficial to both employer and employés. It was, by the conduct of the parties, if not by their express agreement, an ingredient and instrumentality of the employment. * *** The defendant was not carrying the plaintiff gratuitously for the mere accommodation of the latter, without regard to the relation between them created in their contract, but was doing so because of that relation, and as an incident of the employment." Bowles v. Ind. Ry. Co., 27 Ind. App. 672, 62 N. E. 95, 87 Am. St. Rep. 279. St. L. S. W. Ry. Co. v. Spivey, 97 Tex. 144 to 147, 76 S. W. 748, determined that the allegations of the petition in that case showed no cause of action against the railway company, since it was not alleged that by the duties of the plaintiff as call boy he "was required or expected to ride upon freight trains which might be passing through the yards," and since the facts which were alleged did not "indicate that his duties required him to ride upon such trains." Here it is alleged and there is evidence to establish that appellee was both required and expected to ride the trains movof his duties as car checker. ing in appellant's yards, in the performance charge of his duty as a freight brakeman when he entered the caboose in the switch yards before his train had been made up, and that hence appellee was a mere licensee or trespasser. In rejecting the contention, the Court of Civil Appeals said: [1] We answer the first question in the negative. The issue as to whether appellee was acting in the line of his duty, when he Tex. Civ. App. 439, 76 S. W. 582, 583, apIn C., R. I. & T. Ry. Co. v. Oldridge, 33 received his injury was for the jury, under the facts certified. Viewing the facts in the proved in M., K. & T. Ry. Co. of Texas v. Rentz (Civ. App.) 162 S. W. 960, much promimost favorable light to appellee, the jury nence was given in appellant's brief to the had a right to find: First, that no specific nence was given in appellant's brief to the had a right to find: First, that no specific contention that appellee was not in the disdirections were given to appellee about rid-contention that appellee was not in the dising trains, in going from the depot to his work on the yards and in returning from the yards to the depot, save that he had been told to ride in going to, and in coming from, the south yards, and that he had been told to ride trains which were moved while he was checking them; and, second, that in order to increase the volume of work to be accomplished for appellant, in a given time and for a given wage, appellee and his fellow car checkers had habitually ridden on the trains in all the yards of appellant, in going to their work, and in returning to the depot from their work, and that appellant, with full knowledge, approved this method that it was customary for freight brakemen, "The testimony of appellee tended to show when called to go out with a train, to meet the conductor in the caboose, with the food and clothing required for the journey, while the caboose was yet in the yards, and before the train had been made up. If it be true that appellant's business, as well as that of other railway companies, had been habitually conducted in, the absence of a definite rule or positive rein this manner, as the evidence tended to show, quirement to the contrary, we could not say that appellee was a mere volunteer when he entered the caboose in this instance. His conduct should be interpreted in the light of the usage or custom pertaining to the service in which he was engaged, and the question was one for the jury." [2] Answering the second question, we cannot agree that the court's charge authorized a finding in favor of appellee "upon a state of facts which would have constituted him a mere licensee in riding the train from which he was thrown." For, before the jury were authorized to find for appellee, the charge, as a whole, expressly required the jury to find, among other matters: First, that plaintiff, in getting on the steps of the caboose to ride to the depot, "was performing his duty in the manner expected of him by the defendant under the circumstances"; and, second, that the switch stand was main. tained in such proximity to the track on which the caboose was moving as to be a menace to the safety of defendant's car checkers in the performance of their duty in the manner they were expected to perform it, and that defendant, in so maintaining the switch stand, should have foreseen that plaintiff or some other car checker, would, "in the performance of his duty, in the manner expected of him, be injured by coming in contact with the said switch stand while riding upon cars passing the same under circumstances similar to those under which the plaintiff was injured." Besides, the jury were further expressly instructed that, if they did not believe "that the plaintiff was expected in the performance of his duties to ride on the car, under the circumstances," then to find for defendant. [3] 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. The charge, of which complaint is made, required appellee to be doing, not only the work expected of him by his master, but to be doing it in the performance of his duty as servant, and we do not think it failed to safeguard every right of appellant. [4, 5] We answer to questions Nos. 3 and 4, that the admission of the quoted testimony of witnesses Stephens and Mayfield did not constitute reversible error. The testimony of Stephens as to what he would have done under circumstances, shown not to exist by uncontradicted evidence, could not have affected the findings of the jury on the issues submitted, and we concur in the opinion of the Court of Civil Appeals that the opinion of Mayfield was that of a duly qualified expert. (83 Tex. Cr. R. 281) WHITENER v. STATE. (No. 4994.) (Court of Criminal Appeals of Texas. April 17, 1918. Rehearing Denied May 8, 1918.) 1. ASSAULT AND BATTERY 92-AGGRAVATED ASSAULT - DECREPITUDE - SUFFICIENCY OF EVIDENCE. Evidence that accused weighed 180 pounds, and that assaulted person weighed 140 pounds, and was and had been for some time afflicted with tuberculosis, is not alone sufficient to show assault was aggravated because of decrepitude of assaulted party. 2. CRIMINAL LAW 296-JUDGMENT-FORMER JEOPARDY. Adjudication by the court of matter claimed to constitute former jeopardy is necessary where not submitted to the jury. such plea is decided adversely by the court, and Appeal from McLennan County Court; James P. Alexander, Judge. C. C. Whitener was convicted of aggravated assault, and he appeals. Reversed and remanded. Jos. W. Hale, of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. This conviction was for aggravated assault; the fine being $25. [1] The evidence shows that Whitener, his wife, and child were driving in an automobile, and the alleged assaulted party, Jenkins, was driving a service car; that Jenkins ran into the car occupied by appellant and his family, knocking his child from the car. A personal difficulty ensued, in which appellant struck Jenkins, caught him by the coat, and pushed him down. The assault was alleged to be aggravated by reason of the fact that Jenkins was decrepit. The evidence on this point is that appellant weighed 180 pounds, and Jenkins weighed 140 pounds, and was afflicted with tuberculosis, and had been for some time. The evidence is silent as to any further weakness or incapacity or decrepitude on the part of the assaulted party, Jenkins. We are of opinion the evidence is not sufficient to support the allegation. [2] Appellant had pleaded guilty in the corporation court for this assault, and paid a fine of $15. A plea of jeopardy was interposed in the county court on the proposition that he had previously been convicted and fined in a court of competent jurisdiction, and, second, that when first tried in the county court the jury was out considering their verdict for something like six hours. The jury came in after being out about three hours, and reported they could not agree. After being out a while longer, amounting to six hours from the time of the submission of the case, in the absence of the defendant and his counsel, the court discharged the jury on their statement that they could not agree. The jury stood 5 to 1, but it is not shown how the 5 or the 1 stood, whether for |