"From Smetana crossing I was keeping a lookout for persons or anything else on the track; that is my duty." gent, was also an issue to be, and was, deter- | testimony. Many facts corroborating the mined by the jury. The determination of evidence of habitual use were proven. The what was such contributory negligence on evidence that the railroad company acquiesthe part of the deceased as would defeat this ced in this use is furnished by the engineer action, or perhaps, more accurately speaking, himself, who testified upon that fact as folthe question of whether the deceased, at the lows: time of the fatal accident, was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person, under similar circumstances, was no more a question of law for the court than was the question of negligence on the part of the defendant. There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Ft. W. & D. C. Ry. Co. v. Broomhead, 140 S. W. 820-824; Railway v. Matthews, 32 Tex. Civ. App. 137, 73 S. W. 413, 74 S. W. 803; Railway v. Matthews, 100 Tex. 63, 93 S. W. 1068; Brown v. Sullivan, 71 Tex. 475, 10 S. W. 288; Tex. & Pac. Ry. Co. v. Watkins, 88 Tex. 20, 29 s. W. 232; St. L. & T. Ry. Co. v. Crosnoe, 72 Tex. 79, 10 S. W. 342; S. A. & A. P. Ry. Co. v. Jaramilla, 180 S. W. 1126. The first assign-The criticism is not tenable. In the first ment is overruled. The language used in the charge was warThe tenth assignranted by the evidence. ment is overruled. [9] The eleventh assignment complains that a portion of the charge omitted to instruct upon the duty of deceased to use ordinary care to avoid being injured. Inasmuch as the charge in another paragraph correctly stated that ordinary care was required of deceased, its omission from the portion of the charge attacked is not error. The eleventh assignment is overruled. [10] The twelfth assignment also attacks a portion of the court's charge. The proposition is made that deceased was a trespasser, and that therefore the railroad company was not guilty of negligence in killing him. place, the evidence does not show that deceased was a trespasser. In the second place, if he were a trespasser, it was the duty of the appellant to exercise care not to kill him. Davies v. Mann, 152 English Rep. 588; Rail Street's Shearman & Redfield, vol. 1, § 99; vol 2, § 484; Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. [6] The second, third, fourth, fifth, sixth, and seventh assignments assert that the trial court erred in admitting testimony, over objection, of several witnesses who testified to experiments made for the purpose of demon-way v. Watkins, 88 Tex. 20, 29 S. W. 232; strating that the headlight of an engine did not leave the track in darkness because of the curved track, but did light the track sufficiently for the engineer and fireman to discover the peril of deceased in time to have avoided the injury. The experiment was substantially similar to conditions surrounding the injury, and its weight and credibility were for the jury. The evidence was properly admitted. The assignments are overruled. [7] The eighth assignment complains of that portion of the charge which suggests that deceased "was on the motorcar, or standing or lying down near," because there was neither pleading nor evidence to support it. The pleading and evidence justify the language of the charge. The eighth assignment is overruled, and the ninth, which presents a similar question, is also overruled. [8] By the tenth assignment that portion of the court's charge is attacked which instructs the jury that if it believed from the evidence that the portion of the track where the injury occurred was and had been commonly and habitually used by the public as a pathway by night, with the knowledge and acquiescence of appellant, etc. The propositions are that the evidence wholly fails to support such a charge. A number of witnesses testified that that portion of the track was commonly and habitually used by the public as a pathway for travel by pedestrians by night. This was not contradicted by any 1126. The thirteenth, fourteenth, fifteenth, and sixteenth assignments urge error in the charge for the reason that the issue submitted was not pleaded or not supported by testimony. The assignments are elaborately and ably presented, but are all overruled because there was both appropriate pleading and sufficient evidence to require the issue complained of submitted to the jury. The thirteenth, fourteenth, fifteenth, and sixteenth assignments are overruled. [11] By the seventeenth assignment appellant contends that the court erroneously instructed the jury to determine the issue of whether or not the negligence of deceased was the proximate cause of the injury, and erroneously instructed them that, if so, then to find for the appellant. Appellant seems to insist that if deceased violated the rules of the company, or was drunk, or was a trespasser, that the railroad company could kill him, unless it was proven that appellant's operatives actually discovered the peril of deceased, and then, after discovery, were negligent in not avoiding the accident. The contention is not in accordance with the law. Such a doctrine was expressly repudiated in the first case we have been able to find reported on the subject. Davies v. Mann, 152 English Reports, 588; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232; Railway v. Texas Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed in part and rendered. Jas. A. Stephens, of Benjamin, for appellant. Brookreson & Howell, of Benjamin, for appellee. Symkins, 54 Tex. 615, 38 Am. Rep. 632;| Action by J. T. Dunivan against the West Railway v. Jaramilla, 180 S. W. 1126; Railway v. Broomhead, 140 S. W. 820. The rule is that if appellant's locomotive was operated along its railroad track negligently, and this negligence was the proximate cause of the injury, then appellant is liable for damages, notwithstanding deceased may have been guilty of negligence in being where he was. Whether or not this particular engine at that time was negligently operated is a question of fact to be determined by the jury from all the circumstances in evidence; and whether or not this negligence of the appellant was the proximate cause of the injury is an issue of fact to be likewise determined by the jury. The seventeenth assignment is HARPER, C. J. Appellee sued appellant for the conversion of a set of tinner's tools, and for $25 for services rendered. Appellant's answer consists of demurrers, general denial, special denials of certain paragraphs of plaintiff's petition, and that it was the owner of the tools in question. We refer to opinion of Court of Civil Appeals, Ft. Worth, Texas, 182 S. W. 425, for a more extensive statement of the case. The case was subThe eighteenth, twentieth, and twenty-first mitted to jury by special issues, and upon the assignments all complain of various portions verdict judgment was rendered for plaintiff of the main charge for reasons all akin to (below) for $994.50, from which this appeal is those already herein disposed of. The eight-prosecuted. eenth, nineteenth, twentieth, and twenty-first assignments are overruled. overruled. By the twenty-second, twenty-third, twentyfourth, twenty-fifth, twenty-sixth, twentyseventh, twenty-eighth, twenty-ninth, and thirtieth assignments complaint is made because the trial court refused special instructions requested by appellant. All of these special instructions required the jury to return a verdict for appellant, for which reason none should have been given. By its brief appellant urges eight assignments of error, and appellee objects to a consideration of them upon several grounds, such as not being in compliance with the rules, being multifarious, etc. We think them sufficient to permit their consideration. These assignments are all attacks upon the findings of the jury upon the special issues submitted. We, having decided that the following is conclusive of the merits of the cause, will confine the opinion to the one Assignments 22 to 30, inclusive, are over- question. ruled. The thirty-first assignment contends that the judgment is not supported by the evidence. We believe that appellant's counsel is under a misapprehension of the effect of the evidence as applied to the law of this case. The thirty-first assignment is overruled. The judgment is affirmed. The controlling issue in this case is: Did the West Texas Supply Company sell the tools in question to Dunivan? Special issue A complained of reads: "Had the board of directors of the West Texas Supply Company of Benjamin, Tex., prior to the 1st day of September, 1913, by its customs, acts, and conduct, delegated authority to its president, W. F. Finn, to make or cause to be made the trade in controversy ?" The fifth assignment attacks the finding of the jury in response to special issue A, given WEST TEXAS SUPPLY CO. v. DUNIVAN. at the request of plaintiff. The propositions (No. 743.) (Court of Civil Appeals of Texas. El Paso. 1. CORPORATIONS 376-PURCHASE OF STOCK are: (1) That there is no evidence that the directors authorized the trade; and (2) that they expressly repudiated or rescinded the attempted act of the vice president and manager before the consideration passed. [1] In Texas a corporation may repurchase A corporation when authorized by its direc-its own stock with the consent of its stocktors may repurchase its own stock by consent holders (San Antonio Hardware Co. v. San432(12) REPRESENTA-ger, 151 S. W. 1104); but in all cases it must TION BY OFFICER-CONTRACTS EVIDENCE. be authorized by the directors of the corIn an action for conversion of a set of tin- poration (section 4075, Thompson on Corporaner's tools which plaintiff claimed to have actions [2d Ed.]). There is no evidence that quired from defendant corporation under a con of its stockholders. 2. CORPORATIONS tract whereby he was to deliver to defendant the sale was made by Finn. shares of stock, where there was no evidence of The testimony of John Albright, vice presiany act of the directors authorizing the trade, dent and general manager, is undisputed. He or that the vice president who made the trade had been permitted to do similar acts, there could be no recovery. said: "I was vice president and general manager of the West Texas Supply Company of Benjamin, Appeal from Knox County Court; W. M. Tex., from its organization until November 1, Moore, Judge. 1913. I still own my stock in the company. About the 1st of September, 1913, Mr. W. T. to make the trade, and none that he (AlFinn, president of the company, was at the bright) had been permitted to do similar acts store in Benjamin and had a talk with me, and said that the expenses were too heavy, and they in such way as to mislead the appellee to were too heavy. He told me to discharge Mr. believe that he had such authority. We are Dunivan, Mr. Dunivan was working for the therefore of the opinion that the sale was not company at that time, and I told Mr. Finn that lawfully made. It follows, therefore, that I had hired Dunivan for a year, and that his time would not be out for some time yet, and appellee never became the owner of the tools that I could not discharge him under our agree- in question so as to charge the appellant ment. We discussed the matter, and Mr. Finn corporation with their conversion. And it apasked me if I could trade Dunivan out some pearing that the evidence was fully developway to stop his wages, and I told him that I could trade him the tin shop for his stock as ed, it devolves upon this court to here render far as it went. He was fixing to leave for the judgment that should have been rendered home, and told me to see Dunivan and let him below. know what I could do. I told him that I had already talked to Dunivan about it, and that he would trade. Mr. Finn then told me to go ahead and make the trade, and left, and I saw Dunivan and made the trade just like he told me to do. Dunivan agreed to take the tools Jury having found that the appellant owed appellee $19 for services rendered to it, to that extent the judgment of the trial court is affirmed, and as to the balance of the $994.50 is rendered for appellant. CO v. COLLINS. (No. 5882.) San Antonio. Oct. 17, 1917. Rehearing Denied Nov. 14, 1917.) 1. MASTER AND SERVANT 258(17)-INJU RIES TO SERVANT PETITION MASTER'S KNOWLEDGE. sledge hammer he was using flew off the han and materials then on hand at their invoice price, and let the company take enough of his stock at its face value to cover the amount; he had one certificate of $500. I told him we would take this up and issue stock back to him SANTA FÉ TIE & LUMBER PRESERVING for what he had left. He said he would go and get the stock, and we could fix it up. I told him, 'No'; to wait until Mr. Finn came back to make the transfer of the stock, as at (Court of Civil Appeals of Texas. that time we had no secretary. Bob Gray, who was secretary, having sold his stock and retired from the company, it was necessary to have two of the officers of the company to make the transfer, and I was the only one at Benjamin. So we went ahead and invoiced out the stock, and it amounted to just a fraction less than $400, and I turned it over to him, and we closed up the trade. This trade was made the 1st day of September, 1913; the goods invoiced out on the 2d day of September, 1913. I stayed with the company as its manager until November 1, 1913, and Mr. Finn never made any kick about it while I was there, and I never heard of any from any one else while I was running the store. # # *The directors at the time the trade was made with Dunivan were myself, W. T. Finn, and W. T. Ward. During the entire time I was vice president and manager of the company there was never a meeting of the directors after the one of organization, and I never heard of such a meeting while I was running the store. I was not directed by the board of directors to make the trade with Dunivan; I made it by instructions from Mr. Finn. Dunivan was to run the tin shop in the back of the warehouse, and agreed to help me occasionally on little jobs for the rent, and Mr. Finn told me to arrange it that way, and the company was to pay him for work he did where it took much time. Dunivan did not bring and tender me the stock certificate at any time, but offered to go and get it, but I told him not to do it just then as the books could be fixed on that point when Mr. Finn came up, as it took two officers to a transfer the stock, and our Secretary Bob Gray MASTER AND SERVANT 286(4)—INJURIES had retired from the company, and I was the TO SERVANT-NEGLIGENCE OF EMPLOYER IN only proper officer to do this in Benjamin. FURNISHING TOOL-QUESTION FOR JURY. I never made a trade like this for the In a servant's action for injuries when the company before, and I don't know that I ever sledge hammer he was using flew off the hanheard of a corporation trading for its stock be-dle, issue whether the employer was negligent in furnishing plaintiff with the hammer held for the jury. *** * fore." [2] Each of the other directors testified that he had not authorized Albright to make the trade. The evidence is conclusive that no meeting was held where such a resolution could have been passed by the directors, and no evidence of any such was offered, and there is no evidence of any act of the directors which authorized Albright as agent A sledge hammer made by the employer's head smith, its handle being placed for use of a servant who had never used a sledge before equipped with a defective handle, was not a simple tool which an employer need not inspect. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Simple Tool.] 3. APPEAL AND ERROR 742(2) MENTS OF ERROR GROUNDS-EFFECT. an 4. ASSIGNURGING DISTINCT Where several distinct grounds are urged in assignment of error, it cannot be treated as proposition. 5. MASTER AND SERVANT 279(5)—INJURIES Evidence held to support a finding that the head blacksmith was the personal representative of the employer, charged with the nondelegable duty to see that the tools were in safe condition. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. MASTER AND SERVANT PLOYER. SEE TOOLS ARE SAFE-DELEGATION BY EMThe head blacksmith's neglect to see that the sledge he was furnishing his helper was safe will be imputed to the employer; the head blacksmith being the latter's personal representative, charged with the nondelegable duty 7. APPEAL AND ERROR 1033(4, 8)-ERROR FAVORABLE TO APPELLANT-SUBMISSION OF ISSUE-FINDINGS. to see that tools are safe. Defendant cannot complain of error committed in submitting an issue, nor of the jury's finding thereon favorable to plaintiff, where the issue was an infringement on plaintiff's rights only. 190(9)—DUTY TO | off the handle while he was striking with it, causing him to be jerked and twisted and his back wrenched, and that such injuries were brought about by negligence of defendant in failing and refusing to exercise ordinary care to furnish him a reasonably safe hammer with which to perform the work he was required to do. He alleged that the handle of the hammer was defective in that it was too sharp and pointed at the end where it extended through the hammer, and not properly wedged. It was pleaded and admitted that defendant, at the time plaintiff alleged he was injured, had in its employment more than five men, and 'that it was not a subscriber to the Texas Employers' Insurance Association as provided in chapter 179, Acts of Thirty-Third Legislature (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and plaintiff pleaded that defendant did not come within any of the exceptions mentioned in said act, and that it was therefore precluded from setting up a defense based on assumed risk or negligence, or that the injury was caused by the act of a fellow servant. 8. APPEAL AND ERROR 231(9)-RESERVATION OF GROUNDS OF REVIEW-OBJECTIONS TO ISSUE. Where the objections to an issue filed below were general, a specific objection, not included therein, cannot be urged on appeal. 9. APPEAL AND ERROR 213-RESERVATION OF GROUNDS OF REVIEW-REQUEST FOR IS SUE SUPPLYING OMISSION. Appellant cannot complain of an omission from an issue without having sought below to correct it by requesting the submission of a correct issue. 10. TRIAL 351(5)-SUBMISSION OF ISSUES. In a servant's action for injuries, where the court correctly submitted the issue whether plaintiff suffered any damages by reason of the sledge hammer coming off the handle, and instructed that no damages could be allowed for any prior injury or sickness, it properly refused to submit an issue inquiring whether the injuries suffered by plaintiff resulted from the hammer slipping off the handle, from prior disease, or from both. 11. TRIAL 351(5)—SUBMISSION OF ISSUES. In a servant's action for injuries, defendant's special issue asking the jury to find whether plaintiff was guilty of contributory negligence, accompanied by an incomplete instruction omitting the essential statement that the facts stated, if found to exist, would show contributory negligence, was properly refused where the issue submitted by the court was in practically the same language. 12. DAMAGES 134 (1)-PERSONAL INJURIES -EXCESSIVE VERDICT. In an action for injuries to a helper in defendant's blacksmith shop, when the sledge hammer he was using flew off the handle, causing him to wrench his back, in view of plaintiff's age and low earning capacity, verdict for $15,000 held excessive by $5,000. Defendant answered by general and special exceptions, general denial, and a special plea to the effect that if the handle of the hammer was defective the fault was plaintiff's; that it was one of his duties to look after the hammers he was using and see that they It further were kept in proper condition. alleged that if the hammer was defective as charged plaintiff was guilty of contributory negligence which proximately contributed to his injuries, in that he failed to take proper care of his tools, and to make a proper inspection thereof, which it was his duty to do. It also charged that certain defects pleaded by plaintiff, if they existed, were open and apparent to the view of plaintiff, and known to plaintiff, and that he was guilty of negligence in using the same. Defendant also pleaded assumed risk. The cause was submitted on special issues in answer to which the jury found that plaintiff was injured as alleged in his petition; that the handle of the hammer was sharp Appeal from District Court, Burleson pointed at the end where it extended through County; Ed. R. Sinks, Judge. Suit by W. L. Collins against the Santa Fé Tie & Lumber Preserving Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally on entrance of a remittitur; otherwise, reversed and cause remanded. Hunt, Myer & Teagle, of Houston, for appellant. U. S. Hearrell, of Cameron, and W. M. Hilliard, of Caldwell, for appellee. MOURSUND, J. Appellee sued appellant to recover damages by reason of personal injuries alleged to have been sustained by him while in the employ of appellant as helper in its blacksmith shop, charging that his injuries resulted from a sledge hammer flying the hammer, and not properly wedged; that defendant was guilty of negligence in furnishing him with such a hammer to do the work required of him; that it was not the duty of plaintiff to keep in repair the hammer he used in defendant's service; that the plaintiff did not know at the time he used the hammer that it was in a defective condition; that plaintiff was not guilty of contributory negligence in using the hammer; and that plaintiff suffered damages in the sum of $15,000 by reason of his injuries. Judgment was entered for plaintiff for the amount stated in the verdict. [1] Appellant contends that its general demurrer should have been sustained for the reason that the petition does not expressly charge that the defendant knew of the con- | work was usually done by two men as the dition of the hammer, or that it could have blows must be fast and hard to drive the known thereof by the exercise of ordinary bushing down while the metal is hot. On care. It has been held in somewhat similar this occasion plaintiff did the work alone. cases that the demurrer should not be sus- When Wiegant called to him, he hastily seiztained on such ground. G., H. & S. A. Ry. v. ed a sledge hammer which was standing Udalle, 91 S. W. 330; M., K. & T. Ry. v. with the handle up, near the anvil block, and Gilbert, 130 S. W. 1037. The petition in this struck rapidly. While he was striking, the case does not disclose that the hammer was hammer slipped suddenly from the handle, delivered to plaintiff in good condition, and causing plaintiff to wrench his back. The that it afterwards became defective, but evidence supports the finding of the jury as charged directly that the hammers were to the defect in the handle which caused made by the head smith, and that defendant the hammer to come off. The defect was not had the handles placed in the hammers and visible on account of the way the hammer prepared and placed there for plaintiff to use was standing, and could not have been disin striking for Wiegant. covered except by inspection such as plaintiff had no time to make after being called on to do the work. The handle was not put in the hammer by plaintiff, and there is no evidence that it was in the hammer when plaintiff had used the same on previous occasions. The handle was put in by Wiegant or some one under his direction. It was admitted that defendant employed more than five men, and that it was not a subscriber to the Employers' Liability Insurance Association. [2] Appellant further contends that the petition discloses that the tool was a simple one which plaintiff was daily using, and not such a tool as defendant was required to inspect. The petition fails to disclose that plaintiff had ever used the hammer before, at least while equipped with the defective handle. The entire objection is inapplicable to the case pleaded by plaintiff, and in view of the opinion in the case of Drake v. Railway, 99 Tex. 240, 89 S. W. 407, it is clear that the court did not err in overruling such objection to the petition. [4-6] In view of the facts above stated, we think it is clear that the submission of the issue was justified by the evidence. The evidence supports a finding that Wiegant was the personal representative of defendant, charged with the nondelegable duty of seeing that the tools were in safe condition to carry on the work, and when he furnished plaintiff the hammer in question his neglect of the duty to see that it was safe will be imputed to defendant. The doctrine an The testimony complained of in the third assignment was properly admitted. Besides, substantially the same testimony had been given, without objection, by the same witness. [3] The action of the court, in submitting the issue whether defendant was guilty of negligence in furnishing plaintiff with the hammer to do the work required of him, is complained of in the fourth assignment; sev-nounced in the Larkin Case, 98 Tex. 225, eral distinct grounds being urged in the assignment, which cannot, therefore, be treated as a proposition. The only proposition submitted under the assignment is that: "When the facts do not show that a tool was defective when furnished the servant, the master cannot be held liable on the theory that he furnished a defective tool." The salient facts deducible from the evi dence are as follows: Plaintiff was employed as helper in the blacksmith shop of defendant, and worked under the direction and control of Wiegant, the head smith. Plaintiff's contract of employment did not impose upon him the duty to inspect tools, but in compliance with Wiegant's orders and method of conducting the work if plaintiff ascertained that a handle was defective or loose in a hammer, he replaced it or made the necessary repairs. Wiegant testified that he kept the tools in repair; that it was his duty to see that the tools were sharp and proper and correct for their purposes. The replacing of sledge hammer handles was a very frequent occurrence, and plaintiff had put new handles in all of defendant's hammers during the course of his employment. After a four days' absence plaintiff returned to work, and was ordered by Wiegant to drive a bushing on a tram car axle. This 82 S. W. 1026, 1 L. R. A. (N. S.) 944, relied upon by defendant, has no application to the facts of this case. The fourth assignment is overruled, and what we have said in discussing the first and fourth assignments disposes of the fifth and twelfth assignments adversely to appellant. [7] Appellant contends that the undisputed evidence shows it was the duty of plaintiff to keep the hammer used by him in repair, and that therefore the court should not have submitted special issue No. 6, and that the answer of the jury thereto is contrary to the great weight and preponderance of the testimony. There being no evidence that plaintiff ever had an opportunity to repair the defect in the hammer which caused his injuries, nor that the plaintiff had the exclusive control of such hammer, and was the only person authorized to repair the same, it appears to us that plaintiff should have objected to the issue, and not the defendant. The finding of the jury was doubtless prompted by the evidence that Wiegant was charged with the duty of seeing that all tools were kept in repair, and plaintiff only with the duty of repairing such as he observed defects in, or such as Wiegant ordered him to repair, and that having had no |