charge was upon an issue not raised by the evidence must be sustained.

In view of what has been said above, it is not necessary to discuss, in detail, the remaining assignments of error, which relate principally to charges given and refused on the issue of assumed risk. While the charge given was correct as far as it went, appellant was entitled to have the issue presented more fully than was done in the main charge. The special charges requested and refused did not state the law more strongly in favor of appellant than was warranted by the facts of the case.

The judgment is reversed, and the cause remanded.

SAN ANTONIO & A. P. RY. CO. v. GONZALES.*

(Court of Civil Appeals of Texas. Jan. 28, 1903.)

CONVICT HIRING OUT TO RAILROAD COMPANY-INJURY-NEGLIGENCE OF COMPANY-INSTRUCTIONS-RIGHT OF CONVICT TO PROTECTION-SUPERINTENDENCE BY STATE OF

FICER-EFFECT.

1. In an action for injury to a convict hired out to a railroad company, the court instructed that if the convict, while rightfully upon the company's platform, and attempting to load goods on a flat car, was struck by a side-brake rod upon a moving car, which, through the company's negligence projected over the platform, and if in the exercise of ordinary care the company should have known of the defective rod, the jury should find for plaintiff, unless by use of ordinary care plaintiff could have seen the rod and avoided it. Held, that any error in the instructions was favorable to the company.

2. A convict, hired out to a railroad company, but in the custody and under the orders of a state officer, may recover damages for injuries inflicted on him by the company's negligence.

3. The convict, while on a railroad platform loading on a car goods which the railroad company had deposited there for that purpose, was struck by a brake rod negligently allowed to project beyond the side of a moving car. Held, that it would not affect the convict's right of recovery that at the time of injury he was disobeying the orders of the state officer.

4. Nor would it affect the convict's right of recovery had the work he was doing been for the state instead of for the company.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Action by Bernardino Gonzales against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Harwood & Walsh, for appellant. S. H. Hopkins and J. W. Rainbolt, for appellee.

NEILL, J. This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted upon him by the negligence of the railway company. The appellant answered by general and special exceptions, a general denial, and a special plea of con

Rehearing denied February 25, 1903, and writ of error denied by supreme court.

2. See Convicts, vol. 11, Cent. Dig. § 16.

tributory negligence. The trial of the case resulted in a judgment in favor of the appellee for $2.000, from which appellant has appealed.

Conclusions of Fact.

On November 2, 1900, the appellee was one of a gang of penitentiary convicts hired by the state of Texas to the appellant to work on its railroad. The convicts, during the term of their employment, were in the custody and under the control of one E. B. Stedman, a sergeant in the employ of the state of Texas, who was also employed by appellant as an assistant section foreman in working the gang of convicts. While appellant's section foreman directed and superintended the work done by them, in doing the work the convicts were under the immediate control, supervision, direction, and order of the sergeant, whose orders they were compelled to obey, any disobedience of them subjecting the convicts to punishment by flogging. During the time they were hired to the appellant, the rations were furnished the convicts by the state. On the day stated, the gang of convicts having ceased work for dinner at Slayden, the appellee and another convict were ordered by the sergeant to throw a sack of peas, furnished as rations, upon a flat car of a passing train, so that it could be carried to the commissary car in which the rations of the gang were stored, and, while in the act of obeying the order, appellee was struck on the head by a brake rod, which appellant had negligently permitted to become so bent as to project over the platform where appellee was at the time endeavoring to obey the order of the sergeant, and was thereby knocked from the platform under the wheels of the car, which ran over and mashed and mangled his foot and ankle so as to render their amputation necessary. The appellee was neither guilty of nor chargeable with any negligence proximately contributing to his injury, but the same was proximately caused by the negligence of appellant in running the train on which there was a car with a brake rod projecting over the platform where appellee was doing the work.

Conclusions of Law.

As the assignments of error are directed to the refusal of the court to give a number of special charges asked by appellant, and complain of the charge given, we will, in order to discuss them intelligently, insert the charge of the court, as well as such special instructions as were given at appellant's instance. Before doing so, we will remark that we believe that, when they are read and considered in reference to the evidence, they will be found to constitute a complete refutation of appellant's assignments of error.

After properly defining negligence and contributory negligence, the main charge of the court proceeds as follows: "(3) If you find

from the evidence that on or about the 2d day of November, 1900, the plaintiff was a convict in charge of a sergeant at Slayden; that he was on the platform of the defendant's station at Slayden, and that he was rightfully upon said platform and rightfully at the place on said platform that he was at the time he was injured; and that, being at said place, he attempted to put a sack of peas upon a flat car attached to one of defendant's engines, and then in motion; and if you further find from the evidence that while attempting to put said sack of peas upon the car, a side-brake rod upon one of the flat cars of defendant, also attached to said engine and then in motion, was bent so as to project over the platform upon which plaintiff then stood, and that, by reason of its so projecting, said brake rod struck the plaintiff and knocked him from the platform to the ground; that thereby plaintiff's foot was crushed by defendant's train in such a manner as to necessitate the amputation of the limb above the ankle and below the knee; and if you further find from the evidence that the condition of the brake rod was known to the agents and servants of defendant in charge of the convict train, or if, in the exercise of ordinary care, its condition ought to have been known to said servants and agents of defendant, previous to the accident and in time to remedy the defect, and was known to the plaintiff; and if you further find from the evidence that as to the plaintiff it was negligence on the part of the defendant to operate the car upon which the bent brake was as it was then operated, and that the condition of the brake was the result of negligence on the part of the defendant, and that such negligence was the proximate cause of the injury to the plaintiff-then the plaintiff would be entitled to recover, unless you find that he was guilty of such contributory negligence on his part as to preclude his recovery, in regard to which you will be further charged." In special charge No. 5, given at appellant's request, negligence and contributory negligence are again defined. After these definitions such charge is as follows: "If, therefore, you believe from the evidence in this case that the plaintiff, Bernardino Gonzales, while attempting to load a sack of peas on a loaded flat car, and was knocked down and injured by being struck on the side of the head by a side brake on said flat car; and if you further so believe that the said Gonzales was guilty of negligence as negligence is hereinbefore explained, in attempting to load said peas on the said flat car loaded with dirt at the time and place and under the circumstances he was there; or if you believe from the evidence that the said Gonzales was attempting to load said sack of peas on said flat car in disobedience to his orders; and if you believe that he was guilty of negligence in failing to use ordinary care and proper care to exercise his faculty of seeing

said side brake; and if you further believe that such negligence on the part of the said Gonzales approximately caused or contributed to cause his injuries-then you will return a verdict for the defendant, the San Antonio & Aransas Pass Railway Company, no matter if you should find that the said side brake was actually bent and leaning out over the platform, or whether it was standing in its natural position. The condition or position of the brake under these circumstances would make no difference, and the plaintiff cannot recover." Special charge No. 6, given at appellant's instance, also contains definitions of negligence and contributory negligence. After these definitions, it proceeds as follows: "If, therefore, you believe from the evidence in this case that the plaintiff, Bernardino Gonzales, while attempting to load a sack of peas on a flat car, received the injuries complained of by being struck on the side of the head by a side brake of the flat car; and if you further so believe that the said Gonzales was acquainted with the said flat cars, and had been working in and around the same for a sufficient length of time for him to have become familiar with said flat cars and side brakes; and if you further believe that he could have seen the said side brakes by the exercise of ordinary care and using his eyes: or if you believe that the danger was apparent to an ordinary person, and that in the face of said danger the said Gonzales attempted to pitch said sack of peas on the car, and thereby was guilty of negligence and failure to use or dinary care and proper care to exercise his faculty of seeing; and if you believe that such negligence on the part of the said Gonzales approximately caused or contributed to his injuries-then you will return a verdict for the defendant, regardless of the condition of the said side brake; as it does not matter whether it was in good condition or whether it was bent over, the plaintiff cannot recover under these circumstances." Special charge No. 14, given at appellant's request, is as follows: "Railway companies are not bound under the law to furnish any particular kind of appliances on their trains, and they are not to be the judges of their suitability for the particular kind of work for which they are to be used, but it is their duty to see that they are to be reasonably safe, and to have them repaired if they are out of repair within a reasonable time after any defect is called to their attention; and if, under these circumstances, and after a reasonable notice, the railway company fails to put such appliances in such repair as will make them reasonably safe for its employés, and injury results from such defective appliances, the defendant is liable for damages, but even if injury does result it must be shown by the plaintiff that the injury, if any, grew out of the defective appliances. In this case you are instructed that, even if you should find that the brake was defec

tive, or leaning, or bent, but that the accident to plaintiff was not caused thereby, but was caused from his leaning over the car to keep the bag of beans from falling, and that his head would have been struck, under the testimony, by the brake had it been in an upright and natural position, and the accident was caused from the act of leaning over the car, then you will find for the defendant."

If either the main charge or the special charges copied were complained of by the appellee, we should be constrained to hold that they are not free from criticism, but as to the appellant they present the law made by the pleadings and evidence in the most possible favorable light. To have given special charge No. 2, the refusal of which is made the subject of appellant's first assignment of error, would have been merely to repeat the substance of special charge No. 5, which was given to the jury at appellant's request.

By special charge No. 3 the court was requested to instruct the jury that "if they should find from the evidence that, in moving the sack of peas from the platform to the commissary car, Gonzales and the other convict assisting him attempted to throw the sack on the car which was being operated by defendant company, and if at the time he was acting under instructions and command of Stedman, sergeant of the state of Texas, then it would make no difference whether Stedman commanded Gonzales to throw the sack of peas on the flat car or whether he commanded him to desist from throwing said sack on the car; whether he did or did not give this command, if the evidence shows that he was acting under orders of Stedman and received his orders while so acting, he cannot recover." This charge ignores entirely the act of negligence of appellant in operating its train with a brake rod bent and extending over the platform where the appellee was compelled to be at work by the orders of the sergeant, who held him in custody for the state, and relieves the appellant from the act of such negligence, though it is shown to be the proximate cause and efficient cause of appellee's injury. Though a convict may be acting under the orders and instructions of an officer placed over him by the state, if while so acting he is injured by the negligence of a railway company, he is entitled to recover from it such damages as flow from the injuries inflicted by such negligence. It was the negligence of the appellant, and not appellee's obedience or disobedience to the order of the sergeant, that caused him to be knocked down and run over by the wheels of appellant's train.

Special charge No. 4 is to the effect that, if the jury believed from the evidence that at the time appellee received the injuries complained of he was disobeying the orders of the sergeant in attempting to throw a sack of peas upon a moving flat car loaded

with dirt, and that in such disobedience he was struck on the head by a side brake of the flat car, and thereby thrown under the train and had his foot cut off, he could not recover, no matter what condition the side brake was in that struck him, whether in or out of repair. This charge is subject to the same criticism given the one just considered. Though a convict, the appellant owed the appellee at least as much duty as it did members of the public liable to be where they would in all probability be injured by the projection of a brake rod propelled along its track. The case of M. K. & T. Ry. Co. v. Scarborough, 68 S. W. 196, 4 Tex. Ct. Rep. 905, is one where the plaintiff was knocked from a skidway by a piece of timber projecting from a moving car and run over and injured by the train, and this court held that the company was charged with the knowledge that members of the public were liable to be where they would in all probability be injured by projections from cars propelled along its track, and that it was the railway company's duty to save the public from such danger by seeing that the cars were free from such projections. In support of this holding we cite Ry. v. Gee, 66 S. W. 78, 3 Tex. Ct. Rep. 706; Ry. v. Davie (Ky.) 58 S. W. 698; Dobiecki v. Sharp, 88 N. Y. 207; Sullivan v. Ry., 2 South. 586, 4 Am. St. Rep. 239; Hicks v. Ry., 64 Mo. 430; Archer v. Ry., 106 N. Y. 589, 13 N. E. 318-which hold that a railway is responsible to persons who are injured, when they are where they had the right to be, and where the company might reasonably expect them to be, by the projection of anything from a car over where such persons were standing. The appellee not only had a right to be where he was when he was struck by the projecting brake rod, but he was compelled to be there. In being where he was he had no volition. He was not a free agent, but a convict and prisoner. When the railroad company unloaded the sacks of peas on the platform for the gang of convicts, it knew that some of them would be ordered there to remove the sacks to the commissary car, and, knowing this, it cannot escape the responsibility for the injury it inflicted upon the appellee by its negligence in running the car there along with a brake rod projecting over the platform where the sacks of peas were to be handled.

The appellant would have been as much liable for the act of negligence which caused appellee's injury if the work he was doing under the orders of Stedman was for the state, as it would have been had the work been done under Stedman's orders as an assistant foreman for the benefit of the railroad company. Therefore the appellant was not prejudiced by the failure of the court to give special charge No. 7 complained of in appellant's fourth assignment of error.

What we have said as to the assignments of error already considered, we believe, is

sufficient to show that there is no merit in any one of the remaining assignments.

There is no error assigned which entitles the appellant to a reversal of the judgment, and it is therefore affirmed.

HOUSTON ELECTRIC ST. RY. CO. v. ELVIS.*

(Court of Civil Appeals of Texas. Jan. 22, 1903.)

HARMLESS ERROR.

1. Where the undisputed facts in an action for injuries to a passenger on a street car showed that he was entitled to recover in any event, judgment in his favor was not reversible for error in the submission of the cause.

Error from district court, Harris county; Chas. E. Ashe, Judge.

Action by Frank Elvis against the Houston Electric Street Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Baker, Botts, Baker & Lovett and Jones & Oliver, for plaintiff in error. Hutcheson, Campbell & Hutcheson, for defendant in error.

GARRETT, C. J. This action was brought by the defendant in error, Frank Elvis, against the plaintiff in error, the Houston Electric Street Railway Company, in the district court for the Eleventh judicial district to recover damages for personal injuries received while a passenger on the railway of said company. The case was tried to a jury, and resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,000, which the defendant seeks to reverse for errors assigned upon the action of the court below in the giving of instructions to the jury and the refusal to give certain special instructions requested by the defendant.

On October 17, 1899, the plaintiff received the injuries complained of while a passenger on one of the defendant's cars. The evidence showed that the car was being run at a high and dangerous rate of speed, when the trolley wire broke and fell upon and became wrapped around and involved with the car, the momentum of which gave such force as to break the guy wires and break and throw down five of the poles, which fell towards and threatened to strike the car, which jumped and pitched along the track. The plaintiff described the manner in which he was hurt as follows: "The car I was in was an open car with the seats running clear across the car. At the time the wire broke I was about two-thirds of the way back, and on the left-hand side of the car, which was the side I took when I first got on the car. I saw the wires on each side of the car, and at each end of the car. I judged that they were street car wires by the breaking and

*Writ of error denied by supreme court.

by the way the car was lunging and pitching and the wires were dropping down upon the sides and the trolley poles breaking and falling. When that happened I pushed over to the right-hand side to keep some of the wires from striking me. I thought it was safer on the right-hand side than on the left-hand side, because I did not notice any wires close on the right-hand side. When I pushed over the car was lunging and pitching and going, I guess, as fast as it could. I judge from the way it was bounding along that it was on the track part of the time and on the ground a part of the time. The track was so rough along there one had to hold on with both hands on the front seat in order to keep in the car. Before I picked myself up in the street, I was sitting in the car, holding on with both hands to the seat in front of me, and the wires were dropping down on the left-hand side and also in front and in the rear, and I pushed over to the right-hand side to escape the wires, and the last recollection I have I was sitting there holding on with both hands looking straight ahead. When I picked myself up after the accident, I was about three car lengths in the rear of the car. The car stopped very soon after I got pulled off, or thrown off, whichever it was." The defendant offered no evidence to excuse the accident. We conclude that the plaintiff's injuries were caused by the negligence of the defendant without fault on his part, and that he sustained damages to the amount of the judgment.

The defendant has assigned error upon the following paragraph of the charge of the court: "If you believe from the evidence that the defendant, at or about the time and place mentioned in the plaintiff's petition, was operating one of its electric cars on which the plaintiff was riding as a passenger at a high and dangerous rate of speed, and that at said time the trolley wires and guy wires stretched over the line of its track at said point broke and fell upon the car or ground, and the trolley poles were thrown down and fell along the side of the car, and that the speed at which said car was being propelled, in connection with the breaking and falling of the trolley wires and guy wires and poles, caused said car to pitch and jump with such force and violence upon the track as to throw the plaintiff from the car upon the ground, or if you believe that the breaking of said wires and said poles appeared to the plaintiff to render his position in the car dangerous, and that plaintiff, acting upon apprehension of immediate danger of injury to himself, and in order to avoid danger, attempted to escape therefrom, in so doing then and there jumped from said car and fell upon the ground, or in such attempt to escape did then and there fall from the same on or against the ground, and that, as proximate cause of said fall, was thereby injured in one or more particulars, substantially as alleged in his petition, you will find

for plaintiff, and assess his damages, if any, as hereinbefore directed, unless you should And for the defendant under other portions of this charge." We hardly think that the charge is subject to the objections urged against it. If it should be found by the jury that the evidence showed the facts set out in the charge, the fact of negligence would follow as a necessary result. But since the undisputed facts show that the plaintiff was entitled to recover, and that no other verdict could have been rendered, the judgment will not be reversed for error in the submission of the case. Mex. Central Ry. Co. v. Lauricella, 87 Tex. 277, 28 S. W. 277, 47 Am. St. Rep. 103. We do not think that any of the assignments of error present any reason for a reversal of the judgment. It will therefore be affirmed.

Affirmed.

SCOTTISH-AMERICAN MORTG. CO., Limited, et al., v. DAVIS et al.* (Court of Civil Appeals of Texas. Nov. 22, 1902.)

REAL ESTATE BROKER-ACTION FOR COMMISSIONS-VENUE-LIABILITY OF AGENTS FOR SELLER-UNDISCLOSED DEFECT IN TITLE -EFFECT-OFFER OF SALE-ACCEPTANCEMAILING LETTER-REFUSAL TO PURCHASE— SUFFICIENCY OF EVIDENCE.

1. In an action by a real estate broker for commissions, the purchaser secured by the broker, who lives in another county, cannot be made a party; being entitled to be sued only in the county of his residence.

2. Agents who employ a real estate broker to find a purchaser for their principal's lands are not liable to the broker for commissions; having acted within their authority, and fully disclosed their principal.

3. Mailing letter accepting a proposition to purchase land constitutes a sufficient acceptance thereof, so as to entitle the broker securing the purchaser to his commissions, and it will not affect the case that the sender intercepts the letter and secures its return to him before delivery to the addressee.

4. A real estate broker secured a purchaser, who instructed a third person to tell the broker that he had decided to take the land. The third person so informed the broker, who telegraphed and also wrote the fact to the vendor. The purchaser also mailed a letter of acceptance to the vendor, but intercepted it and withdrew it from the mails before the vendor received it. Held, that there was no neglect on the part of the broker to notify the vendor of the sale, which would forfeit his right to commission, even though the land had been sold before such notification to another purchaser.

5. In order to avail himself of the final refusal of a prospective purchaser, secured by a real estate broker, to take the land, because it is an ill-shaped tract, not in the form represented by the broker, the vendor, in an action by the broker for commissions, must show in what particular the shape of the land varied from the representations, so that the materiality of the variation can be determined.

6. Evidence in an action by a real estate broker for commissions considered, and held not to show such a misrepresentation as to the shape of the tract by the broker, misleading the pur chaser, as to warrant the latter in refusing to complete the purchase, and deprive the broker of commissions.

'Writ of error granted by supreme court.

Error from district court, Dallas county; Thos. F. Nash, Judge.

Action by W. S. Davis against the Scottish-American Mortgage Company, Limited, and others. Judgment for plaintiff, and certain defendants bring error. Modified, and motion for rehearing overruled.

Matlock, Miller & Dycus, for defendant in erGano, Gano & Gano, for plaintiffs in error. ror W. S. Davis. W. P. Finley, for defendant in error J. R. Couts.

RAINEY, C. J. W. S. Davis sued the Scottish-American Mortgage Company, Limited, and Brown Bros., to recover commissions alleged to have been earned by him in procuring a purchaser (one Couts) for certain lands. Brown Bros. were the agents of said mortgage company, and represented it in the transaction. Plaintiff sought judgment against said Brown Bros. in the event the company was held not liable. The defendants answered generally and specially, but the special answer amounts to nothing more than a general denial, except that it alleges that if J. R. Couts, the party whom Davis alleges he secured as a purchaser, did agree to purchase said land, they were not notified of the same, and that, if they are liable to Davis, the said Couts is liable to them; and they pray that Couts be made a party, etc. Couts pleaded to the jurisdiction of the court, claiming the privilege of being sued in Parker county, the place of his residence. This plea was sustained. The case was submitted, as between the other parties, to the court, a jury being waived, and judgment was rendered in favor of the plaintiff.

Couts lived in Parker county, and was entitled to the privilege of being sued in the county of his residence; there being no fact in the record which deprived him of such privilege. His plea to the jurisdiction was therefore properly sustained.

The court erred in rendering judgment against Brown Bros. They were acting for the mortgage company in the transaction. Their authority to so act was not questioned, and their principal was fully declared and known to Davis at the time he dealt with them. This being the case, no liability existed against them.

This brings us to the question of the liability of the mortgage company to Davis for the commissions claimed. Davis was authorized by Brown Bros. to procure a purchaser for the land, and his claim is that he found one Couts, who was willing, able, and ready to purchase, but this is denied by the mortgage company. The evidence discloses that Brown Bros. resided in Austin, Tex. Davis resided in Ft. Worth, Tex., and the communication between them was through the mails. Couts resided in Weatherford, and Davis first got in communication with him through Hon. I. W. Stephens, who stated to Davis that Couts would like to purchase the land. After