show that S. B. Stewart had any right to section 179, except by the payment of the notes against that section and others. It is not at all probable from this record that it was the purpose or intent of either C. W. Stewart or his wife to give by deed after their death section 177, and also to give section 179 by will to S. B. Stewart. On the face of the facts as shown by this record, this would | have been grossly in excess of what the other children received. The others would have had but little from the personal property, as it took nearly all that to pay the debts; only a very small sum from the proceeds was left after paying the debts. [6] The statute of three years' limitation set up by the appellee S. B. Stewart is not applicable. His claim is not through a regular chain of transfers from and under the sovereignty of the soil. The chain from and under the sovereignty of the soil under which he claims was broken by the wills of his grantors before any title could have vested in him. Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1139; St. Louis Union Trust Co. v. Harbaugh, 205 S. W. 496 (11). [7, 8] The appellants instituted their suit against S. B. Stewart for the land less than five years after he obtained and filed the deed to himself from C. W. and Mary A. Stewart. Hence as to appellants the five years statute will not apply. It would not run against the minors, in whom the will vested an interest; as to the adults who did not answer the judgment by default will preclude their interest, and limitation as to them becomes immaterial. rogation, in equity or in law. The assumption of the debt was never accepted by him; in fact, he knew nothing of this deed until long after he paid the notes, and after the wills had been probated, and he qualified as executor. But if he knew and accepted under this deed, this would not give him a right of subrogation. McDowell v. Jones, 42 Tex. Civ. App. 260, 93 S. W. 476. He sets up the right of subrogation as vesting him with the title. The right of subrogation did not give him title to the land. In order to stand in the shoes of the original vendors of C. W. Stewart, he must have obtained a conveyance from them of the legal title held to secure the payment of the notes. This he did not do. The mere showing that he paid the notes gave him neither a lien by subrogation nor title. We believe the interest sued for by appellants passed to them by the will, and the court erred in not so charging the jury, as requested. The case will be reversed, with direction that the trial court enter up a judgment, decreeing to the appellants herein and plaintiffs below the interests to which they are entitled under the wills of their grandparents, and a judgment for such interest as the minors, represented by the guardian ad litem, are entitled to under the wills, and the court will decree a partition of the land to be made in accordance with law. The minors are not appealing, and have not cross-assigned on this appeal; but they are by law wards of the court, and it is the duty of the court, as we conceive it, to see that their interests are protected. Their interests, under the pleadings and evidence in the case, are in common with the plaintiffs and under the same right. As to the adults who permitted judgment by default, the judgment will be affirmed. Reversed in part and affirmed in part. [9, 10] To S. B. Stewart's plea of subrogation, the appellants interposed the defense of two, four, and ten years' statutes of limitation. If S. B. Stewart paid the vendor's lien notes on the land owing by his father, he did so in October or November, 1906. This suit was not instituted until 1915. He did not claim the land adverse to the appellants until April, 1911. If he made this payment to protect any interest he had in the land, it was upon an implied contract arising between him and his father, and subject to be barred by the two-years statute of limitation. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Darrow v. Summerhill, 93 Tex. 92, 53 S. W. 680, 77 Am. St. Rep. 833; Summerhill v. Darrow, 94 1. NEGLIGENCE Tex. 71, 57 S. W. 942; Darrow v. Summerhill, 24 Tex. Civ. App. 208, 58 S. W. 158. SOUTHERN PAC. CO. v. BERKSHIRE. (No. 891.) (Court of Civil Appeals of Texas. El Paso. Dec. 5, 1918. Rehearing Denied Jan. 2, 1919.) JURY. Negligence is essential to liability for unintentional injury. 2. MASTER AND SERVANT 286(15)—INJURIES TO SERVANT FEDERAL EMPLOYERS' LIABILITY ACT NEGLIGENCE QUESTION FOR JURY. There was no obligation upon him to pay the lien, and if he did so it was voluntary on his part. It was not at that time an obligation of his, and was not a lien on land owned or claimed by him. There was no agreement that he should pay it and be subrogated to the rights of the lienholder. He took a release to his father, reciting payment, and recorded it, and such payment gave him no right of sub-held for the jury. Whether railroad was negligent in maintaining a mail crane near its track, according to postal regulations, against which the engineer struck his head while looking out of his cab, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. MASTER AND SERVANT 204(1)-FEDER- A trial before a jury resulted in a verdict AL EMPLOYERS' LIABILITY ACT ASSUMP- in favor of appellee in the sum of $15,000, TION OF RISK. apportioned to the surviving wife and children. The federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665) leaves the application of assumed risk as it was at common law, as recognized and construed by the federal courts. 4. MASTER AND SERVANT 288(2)-FEDER- TION OF RISK-QUESTION FOR JURY-MAIL In an action by a railroad engineer engaged in interstate commerce for injuries occasioned by being struck by a mail crane while leaning out of his cab, whether plaintiff assumed the risk held for the jury. Appellant presents six assignments of error as grounds for reversal. The first three assignments are based on the refusal of the court to give appellant's special charge to return a verdict in favor of appellant. The record shows that, at the time of the accident resulting in the death of Linder, he was engaged in operating an engine and train then engaged in interstate commerce. Such being the fact, the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657–8665]) applies; the doctrine of assumed risk as con Appeal from District Court, El Paso Coun- strued and applied under that act controls, ty, P. R. Price, Judge. Actron by W. S. Berkshire, temporary administrator and personal representative of the estate of William A. Linder, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Affirmed. Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee. WALTHALL, J. W. S. Berkshire, appellee, plaintiff in the court below, brought this suit as temporary administrator and personal representative of the estate of William A. Linder, deceased, against appellant, for the use and benefit of the surviving wife and children of the said William A. Linder, de ceased. William A. Linder was employed by, appellant as locomotive engineer, running between El Paso, Tex., and Lordsburg, N. M., and while running and operating an engine attached to one of appellant's trains, between said points, at Carney, N. M., deceased was struck by a mail crane and was thereby injured so as to cause his death shortly thereafter. and it is the contention of appellant under its several propositions, both of fact and of law, that Linder, while operating his engine at the time he was injured, assumed all the risks and dangers incident to his employment as engineer on said train, and the injury which he received resulting in his death was the result of such risks, and the court should have given the peremptory charge requested. It is appellant's contention under its fourth assignment that the court was in error in submitting to the jury there was no evidence of negligence on the any issue of negligence because, as claimed, part of appellant proximately causing the injury to Linder. The fifth and sixth assignments claim error in submitting any issue of assumed risk, because, as claimed, Linder assumed all the risks ordinarily incident to operating the engine under the facts and circumstances shown to exist at that time; that, there being no negligence on the part of appellant shown, the risks assumed did not grow out of negligence on the part of appellant. It is appellee's contention that the court was not in error in refusing to give the requested peremptory charge in favor of apAppellee alleged negligence on the part of pellant, for the reason that the evidence callappellant in placing .and maintaining the ed for the submission of the issues, and that mail crane or such portion of same in such it was the province of the jury to determine close proximity to the railroad track and them. There is but little, if any, controversy engine as not to be reasonably safe for the in the evidence. The facts pleaded and the engineer in his position on the engine, in the uncontradicted evidence show the following: ordinary performance of his duties, and in At the time William A. Linder was injursuch close proximity to the railroad tracked, appellant was engaged in the business of and engine as to strike deceased while oc- interstate carrier by railroad for hire over cupying his usual and customary position on its line of railroad extending from El Paso, the engine, and thereby causing injuries Tex., westward through the states of New from which he died. Mexico, Arizona, and into the state of California. Over its lines of railroad it operated both passenger and freight trains. The place or station Carney, at which the injury to Linder occurred, is a station (called in the evidence a blind siding) in New Mexico, between El Paso, Tex., and Deming, N. M. At the time Linder received his injuries, he Appellant answered by general demurrer, general denial, by plea that deceased, Linder, met his death while in the employment of appellant and while engaged in interstate commerce, and that Linder's death was due to risks and dangers assumed by him, for which appellant was not liable. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mail crane at Carney. There were several other mail cranes at other stations on appellant's line between El Paso and Deming and having approximately the same relative posi tion with reference to the cab and the track as the one at Carney. There is a standard distance all of the cranes are placed from the side of the car and are made so by post office regulations. The post office department does not require the railroad companies carrying the mail to put up the cranes. They can either stop the train and pick up the mail, or put up the crane and take the mail therefrom. Where the cranes are used, the company is required to erect them and according to post office department regulations. While there was no direct evidence to the effect that Linder knew of the mail crane at Carney, without stating the evidence, it justifies the finding that Linder knew that a mail crane was maintained and used at Carney and knew its general location with reference to the side of the engine cab, but had nothing to do with its maintenance, location, or use. The train on which Linder was riding at the time of his injury was not the mail train. The mail train was to follow shortly thereafter, and the mail pouch was hung on the arm of the mail crane by the postmaster at Carney for the mail train following and from 15 to 20 minutes before the mail train's time at Carney. In placing the mail pouch on the crane, the postmaster acts under the orders of the post office department. was an employé of appellant as locomotive as on the day of the accident, and some of engineer and was operating an engine pulling the passenger trains on which Linder was ena passenger train carrying soldiers on appel-gineer took up the mail in passing from the lant's road and was going west from El Paso, Tex., to Deming, N. M. The appellant did not maintain an office or agent at Carney. At Carney the United States mail was taken by appellant's mail trains from mail cranes placed near the side of the railroad track. At a point before reaching Carney, it was noticed that "the main driving pin on the engine was running hot." There was light, dim smoke on the engineer's side from the driving pin. It run hotter and hotter to about a mile from Carney, when Linder stepped out of the cab through the front window on the running board, got on his hands and knees to see whether the pin was getting hotter. Afterwards Linder returned to his seat in the engine cab. Just then the mail sack from the mail crane at Carney fell, and it was immediately discovered that Lindder was sitting on the engineer's seat in the engine cab in an unconscious condition, his right arm, head, and part of his body outside of the cab, leaning with the right side and arm over the arm rest of the storm or side window of the engine. The head train brakeman was at the rear end of the engine cab looking back and down the train with his left side from 10 to 18 inches out beyond the side of the engine tank and cab, and, while in that position, either the mail crane or the mail sack (witness did not know which) knocked his hat from the left to the right side, and he was hit on the side of the face with blood from Linder. Linder had a cut on the right side above and about one inch over the right ear. While no one saw the mail crane strike Linder, the evidence justifies the finding that Linder received the injury causing his death by being struck on the head by the arm of the mail crane. Linder was injured at 9:15 o'clock on the morning of the 3d day of July, 1916. The day was clear, and on a clear day a man could sit on the engineer's cab seat and look through the front window of the cab or could lean out of the storm or side window of the cab and see the mail crane a half mile away, and could see the crane and mail pouch 500 yards away. At the time Linder was injured, the train was going on an average of 35 miles an hour. If Linder wanted to look at the driving pin through the side window, he would have to lean out fully 14 and possibly as much as 19 inches beyond the side of the cab, to see it. At the time Linder was injured, he had been running on both passenger and freight trains between El Paso and Deming over a period of several years, had made many trips over that portion of appellant's road and by the station Carney, making 156 trips past Carney during the six months next preceding the time of the accident, during all of which time said mail crane was there, and was similarly located There is no complaint as to the verbiage of the court's charge in submitting the issues of negligence and assumed risk. The contention is that there is no evidence of any negligence on the part of appellant in placing or maintaining the mail crane in its position at Carney, and that, if there was negligence in placing and maintaining the crane in its position, the undisputed evidence shows that the position of the crane with reference to the engine was obvious and known to Linder, or which he must necessarily have known in the discharge of his duties as engineer; that the injury to Linder grew out of and was the result of risk ordinarily incident to his employment; that, under the undisputed evidence of his knowledge of the presence and position of the crane, Linder, while operating the engine in interstate commerce, assumed all risks and dangers incident to the negligence of appellant; that where the proof was vague, indefinite, and uncertain as to the distance between the mail crane and the side of the engine, the evidence was insufficient to submit to the jury any issue of negligence or assumed risk, and the court should have instructed the verdict for appellant. The court instructed the jury on the issue of negligence that, if they found "the position yond question, we think, that at the time of the mail crane was so near to the track | Linder was injured he had just re-entered as not to be reasonably safe for an engineer his cab from a trip of inspection of his enin his cab in the ordinary performance of gine and had discovered that the main drivhis duty, and the defendant was guilty of ing pin on the engine was running hot and negligence in so constructing and maintaining was getting hotter and hotter. The condisaid crane in such close proximity to the tion of the driving pin was noticeable. track, if said crane was in such proximity began about a mile out from Carney, but it to the track as not to be reasonably safe, was not then known whether it was on the and that such negligence, if any, was the proximate cause of the death of William A. engineer's side of the engine, or on the fireLinder, then your verdict will be for the man's side. A light dim smoke from the hot plaintiff," unless they should find for defend- driving pin was discovered on the engineer's ant on other issues. On the issue of assumed risk, the court charged that, if the jury found "the proximate cause of the death of the said William A. Linder was from the ordinary risks and dangers incident to his employment, or that, prior to the happening of the accident, deceased, William A. Linder, knew of the position of the crane which is alleged was so constructed and the location thereof, or that in the ordinary discharge of his duties must necessarily have known of same, and that he appreciated the danger thereof, then, and in such event you so find, you are instructed that he assumed the risks, and your verdict will be for the defendant." Appellant refers us to many cases, both state and federal, in support of its proposi tions. It side. At the moment Linder returned to his seat on the cab, the front brakeman was standing in the gangway between the engine and the tank, with his hands on both grabirons looking out down the side of the train, trying to discover a "hot box." He testified: "Just then this mail sack fell. At the time hat from the left to the right side, and I got it fell, either the crane or the sack knocked my this drop of blood on my face. should judge that at that time my head was out about 14 inches from the side of the engine tank and cab. My head was out from * * on 10 to 14 inches. I can't judge exactly myself. It would have to extend that far in order to see down the side of the train. My whole body was in the cab. At the time my hat was struck, I felt the blood and noticed the sack going down at the same time, and the blood hit me on the side of my face. When I turned around to Mr. [1] Negligence is essential to liability for Linder, he had a cut on the right side, above unintentional injury. While the issue of neg- the ear, about an inch over the right ear, to ligence is a fact to be determined by the jury, my knowledge. I shut the throttle off and startThe fireman was to justify its submission, the evidence must ed applying the brakes. show, under the charge given, that the posi- the side where he belonged, setting the injector. tion of the mail crane was placed so near the accident was noticing the sack, after it The first thing that attracted my attention to the railroad track as not to be reasonably struck my hat. After the sack fell, I reached safe for Linder in his cab while in the ordiup and felt the blood. There was some on my nary performance of his duties as engineer. glove, also. That wasn't blood I lost. It didn't The evidence does not give us a standard of scratch me, just struck my hat. I don't see distance from the side of the cab at which the how I could have extended out over 14 inches. crane could be placed, and be reasonably * I suppose I could have swung out a foot and a half. safe for the engineer. It does not give us a I was looking back. I know proximate standard of distance from the side it struck him. No, I didn't see it strike him, of the engine within which an engineer would and I wasn't looking in that direction at the time. * I hadn't been looking in Mr. ordinarily perform his duties in operating Linder's direction for two minutes, or about his engine, and otherwise keep a lookout for that length of time. * * * This crane stands a proper handling and movement of the en- on the same basis as any other; it is like all gine. While, no doubt, the only available the balance of them. I never measured the disevidence as to what Linder was doing, and tance it was from the track, but I should judge just how far he was reaching out from the 14 inches from the parallel part of the cab 4 side of the cab at the time he was struck by inches from the arm rest and 9 or 10 inches the crane, was offered on the trial, to estab- to the point of the crane-may be more or less, lish the fact that at the time Linder came in but 14 inches from the parallel part of the cab to the crane. The cab window and the coach contact with the crane he was then in the ordi- line behind are supposed to be parallel. Linder nary performance of some one of his duties had to have his head partly out of the cab winand that in its performance he did not reach dow to be struck. In order to get in position, out beyond what would ordinarily be con- to get in his seat, I would judge he would have sidered a reasonably safe distance, at which to be in that position. It don't take much to the mail crane could be put, is more or less get 14 inches out, but certainly, for anything to a matter of surmise. The question presented hit it, it would have to be out 14 inches. is: Was the evidence offered and the attend-15, 18, or 19; I don't know. That is just an estimate. It may be At the ant facts and circumstances shown, and to time of the accident, the train was going on an which we may look, sufficient to take the average of 35 miles an hour. If the engineer case to the jury? The evidence shows be- wanted to look at the driving pin through this * * window, he would have to lean out 14 inches, I window and in the direction of the driving anyway, to see it." pin on the engine; his head extending at "At all points at which trains do not stop where the post office department deems the ex change of mails necessary, a device for the receipt and delivery of mails satisfactory to the department must be created and maintained." Section 1355 of the Postal Regulations, in- least 14 inches beyond the side of the cab. The jury could well conclude from the evitroduced in evidence, provides: dence that the arm of the mail crane or the mail pouch that struck the brakeman's hat struck Linder. The jury could also conclude from the evidence that the point of the arm of the mail crane extended to within 14 inches of the side of the cab. The mail, pouch could be reached and taken by the hook, the other portion of the device, at any distance between 25 and 29 inches. The erection of the crane was shown to be for the conven Witness Matthews testified, in part: "There was a crane erected and maintained at Carney in conformity with this section of the postal regulations. As to the distance of the cranes from the track, I have reasons for know-ience of the appellant. While the evidence ing that this particular one, and the general line of them, are within the requirements of the government, because the government has made objections to the setting of cranes on this division, and we have had to reset them to meet the requirements. The railroad furnishes the equipment for the mail cars, subject to the specífications of the postal department. The cranes and the entire equipment are subject to meeting the specifications of the postal department, and the entire equipment is made in conformity therewith." Witness Neeley testified, in part: "I am in the railway mail service. My run is from here to Tucson. There are a great many stations known as 'catch stations' where we catch pouches hung for us. The crane, I believe, is the stand where they hang the pouches, and we have a hook in the car door to catch them with. The crane is a post, or upright, by the side of the track, built and put there for that purpose." After describing the way the device works, in taking the mail pouch from the crane, the witness said: is meager, we think the jury could well conclude from it that all that was essential to a proper use of the mail device was that the mail pouch, when placed on the arm of the crane, should be at such distance from the passing train that the end of the hook or catcher bar would extend beyond it, and, from the evidence of the witness Neeley, the railway mail agent on that division of the road, it is established that the device could be so placed and used and the mail pouch taken at a distance of 29 inches from the side of the train. The evidence shows that the side of the engine is flush with the side of the coaches. True, the witness Matthews testified that the crane at Carney was erected and maintained in conformity with the postal regulations. But his statement is more a conclusion than the statement of a fact. The postal regulation introduced does not state the distance the crane must be from the track or coaches, nor does the evidence of any of the witnesses show the distance the postal regulations require the arm of the crane to be from the track or coaches, nor is there any evidence in the record, other than that of the brakeman, Anderson, as to the distance of the arm of the crane from the side of the cab. But if it should be held that the evidence was sufficient to show that the crane was placed at whatever distance the postal regulations require, still that fact alone would not have the effect to exclude other evidence on Natu- the issue of negligence and establish the fact that the crane was placed at a reasonably safe distance from the engine; but the question of negligence, it being a question of negligence vel non, would still be open for the jury to determine from all of the evidence. We have reached the conclusion that the evidence was sumcient on the issue of negligence to take the case to the jury. Judge Williams, in speaking for the Supreme Court in M., K. & T. Ry. Co. v. Williams, 103 Tex. 228, 125 S. W. 881, in a somewhat similar case, on one of the issues of negligence in that case, said: "I haven't seen any cars but what the hook extended out about 29 inches from the side of the car. * * You couldn't catch a mail pouch with this hook over 29 inches. Anything within 29 you could. * * * Outside of the rocking of the train you could catch it at 29 inches. As to whether you could catch it with absolute safety at 25 inches would depend on the rocking of the train. If it rocked more than four inches, you couldn't. * * rally there is a standard distance all the cranes are from the side of the car. They are all the same distance exactly and are made so by post office regulations. The same hook which will take a sack off a crane in Arizona and New Mexico will take it as it goes through Western Kansas. The post office doesn't require the railroad to put up the cranes. They can either stop the train and pick up the mail, or put up the crane. It is optional with the railroad which they do. But I understand that, if they do erect them and use the hook, they do it according to government regulations." [2] We think it sufficiently appears from the facts shown that Linder's injury was caused by his coming in contact with the arm of the mail crane, and that at the time of his injury he was then at his place on the cab of his engine, looking out of the side or storm "The occurrence itself is sufficiently indicative of negligence on defendant's part to call for an explanation from it, freeing it from such an imputation. The killing of one of its employés, while in the proper performance of his duty, by |