Fort Worth & D. C. Ry. Co. v. Smithers , 249 S.W. 286 ( 1922 )

The appellee, Smithers sued the Fort Worth Denver City Railway Company and the Colorado Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employ of the appellants at Texline as a hostler helper. The suit was instituted and tried under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) and the Safety Appliance Act (Comp. St. § 8605 et seq.) and amendments thereto. Appellee alleges that the appellants were engaged in interstate commerce, and on April 24, 1917, the date of his injuries, he was in the general employment of the Forth Worth Denver City Railway Company and in the special employment of the Colorado Southern Railway Company; that his duties as hostler helper required him to build fires in locomotives and steam them up, to take charge of them when coming into the yards and roundhouse for repair, storage, and other purposes, to extinguish the fires therein, empty and clean the fire boxes and ash pans, and to prepare such locomotives generally for service; that on said date an engine engaged in interstate commerce came out of New Mexico to Texline, and was spotted at a point near the company's turntable in said town about 9 o'clock that night; that after the engine was spotted he went from the roundhouse with the hostler and another hostler helper for the purpose of extinguishing the fire, cleaning the fire box, emptying the ash pan, and working on and about the engine; that the ash pan in question was a large metal pan, built under the fire box, for the purpose of receiving ashes, cinders, and clinkers emptied from the fire box and was built with a view of being dumped, emptied, and cleaned by use of a lever extending up through the floor into the engine cab; that when the pan and lever were in ordinary state of repair the pan could be emptied by using the lever while in the cab and without the necessity of getting down and going under the engine or any part thereof; that when he went to the engine he climbed up into the cab, took hold of the lever, and made various attempts, after having opened the ash pan, to close it, and that the lever failed to work and operate and failed to close the pan; that he undertook to get down out of the cab, intending to go under the engine for the purpose of closing the pan, and in doing so turned around with his face toward the engine and looked into the cab of the engine, and when he started to alight While in such position his foot slipped, and he fell into the turntable pit, a distance of approximately 11 feet.

The specific grounds of negligence alleged are as follows: (a) The premises around and about the engine at the time and place in question were not lighted; (b) that the ash pan would not close without the necessity of appellee going under the engine in violation of the Safety Appliance Law, to wit, the federal Ash Pan Law; (c) that the engine he was working upon was moved on to the turntable by the hostler without his knowledge; (d) that the engineer and fireman who brought the engine into Texline, according to custom, had theretofore eaten their meals on the engine, and after eating had turned the water hose upon their dishes, washing the grease off of them onto the deck of the engine, and there was grease and greasy water on the deck and floor of the engine cab upon which he slipped. The specific injuries are set out, some of which he alleges resulted in partial paralysis, rendering him almost helpless in earning a living; that such injuries were permanent. His damages are fixed at the sum of $35.000.

The appellants answered by general demurrer, one special exception, general denial, and specially denied that they were guilty of negligence as charged. They pleaded assumed risk and contributory negligence with great particularity in several paragraphs; denied that any of the matters complained of were the proximate cause of the appellee's injuries.

By first supplemental petition appellee alleged that he did not know that the engine deck was covered with grease or greasy water; denied that he knew the dangers resulting from the premises and the engine not being lighted; alleged that he did not know the engine had been moved on to the turntable; that he was young and inexperienced in railroad work and not acquainted with the dangers incident thereto. He denied that he was simulating or faking in any of his alleged injuries.

In answer to special issues the jury found as follows: (1) That the engine in question was not equipped with an ash pan that would empty and close without the necessity of plaintiff going under or partially under the engine to operate it; (2) that it was necessary for plaintiff, in the discharge of his duties, to take a position on the ground under or partly under the engine to close the ash pan; (3) that in the discharge of his duties on the occasion in question the plaintiff started to get down out of the cab of the engine to close the pan from the ground; (4) that the failure to have an ash pan which would empty and close without the necessity of plaintiff's going under the engine to operate it contributed approximately to the plaintiff's injuries; (5) that plaintiff fell from the engine cab into the turntable pit; (6) there was grease and water on the deck of the engine at the time plaintiff undertook to go down out of the cab; (7) plaintiff did not know at the time he went up into the cab that there was grease and water on the deck; (8) that he did know of the dangers arising from said grease and water on the deck of the engine; (9) that a person of ordinary prudence, in the discharge of plaintiff's duties at that time, would have necessarily learned of the grease and water being on the deck of the engine; (10) that a person of ordinary prudence would have necessarily learned of the dangers arising in the discharge of plaintiff's duties from such grease and water; (11) plaintiff slipped on the grease and water and fell from the engine in attempting to get down from the cab; (12) plaintiff was unable to close the ash pan by the use of the lever in the engine cab before attempting to get down; (13) the failure of the ash pan to close by the use of the lever from the cab was a contributing proximate cause of plaintiff's injuries; (14) the defendants were negligent in permitting grease and water to be on the deck; (15) that the negligence of defendants in permitting such grease and water to be on the deck was a proximate cause of plaintiff's injuries; (16) that plaintiff has been injured in the way and manner alleged in his petition; (17) that plaintiff's injuries are the proximate result of his falling out of the cab into the turntable; (18) that plaintiff has been damaged by reason of said injuries; (19) that he had been damaged in the sum of $23,000; (20) that plaintiff was guilty of contributory negligence on the occasion in question; (21) that plaintiff's damages have been diminished $9,800 by reason of his contributory negligence.

The court refused to direct a verdict for the defendants, and at their request specially instructed the jury not to take into consideration any injuries which plaintiff pretended to have, but did not really suffer. Findings on special issues submitted upon defendant's request are as follows:

(1) That slipping on the grease and water caused the plaintiff to fall.

(2) The plaintiff was not guilty of negligence, as that term is defined in the court's main charge, in working at the time and place, knowing that there was grease, or greasy water, on the apron.

(4) It was not plaintiff's duty to clean the grease or water off the apron of the cab.

(7) Failure of the ash pan lever to operate from the engine cab and slipping on the grease and water on the deck of the engine were the proximate causes of plaintiff's falling from the engine.

(13) Plaintiff's slipping on the grease was not the sole proximate cause of his injuries.

(18) The ash pan was not so equipped that it could be closed by a man standing on the ground without danger of being injured by any movement of the engine while attempting to close it.

This case has heretofore been before this court (228 S.W. 637), and upon the former trial the controversy was presented to the jury upon a general charge. The issues as made by the evidence and as submitted to the jury in several material points differ from those before us upon this appeal. The only two grounds of negligence submitted and considered upon this trial are the alleged violation of the Ash Pan Law and the negligence of the appellants in permitting grease and greasy water to accumulate upon the apron or deck of the cab. The appellee alleges that the violation of the Ash Pan Law contributed directly and proximately to his injuries.

The first question therefore to be considered is: Are the appellants guilty as charged with violation of the Ash Pan Law in the equipment of the particular engine? The provisions of the Ash Pan Law, as found in U.S.Stat. at Large, vol. 35, pt. 1, p. 476, c. 225 (U.S. Compiled Statutes, §§ 8624-8629) are:

"Sec. 1. That on and after the first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier engaged in interstate or foreign commerce by railroad to use any locomotive in moving interstate or foreign traffic, not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employee going under such locomotive."

Section 2 forbids the use of locomotives not so equipped. Section 3 provides a penalty for a violation of the act and authorizes suits by the United States for such violation. Section 4 makes it the duty of the Interstate Commerce Commission to enforce the provisions of the act. Section 5 provides that receivers are included in the term "common carrier, and section 6 excepts from the provisions of the act locomotives which by reason of the use of oil, electricity, or other agencies do not require an ash pan. It will be noted that the act does not undertake to prescribe or describe any particular contrivance with which such engines should be equipped, but leaves that matter to the discretion of the railroad authorities. Congress did not intend to require railroads to use equipment by which the ash pan could be dumped and cleaned by an employee from the cab.

We gather from the record describing the equipment in question, and as shown by photographs of the engine from which the appellee fell, that there was a rod which extended from inside of the cab of the engine through the floor thereof, near the wall on the left hand side of the cab down to about 2 1/2 feet above the ground. The upper end of this rod, when the ash pan was closed, was so constructed that it was fastened to a hook inside the cab. The lower end was connected by a bolt and movable joint to a second rod, which ran horizontally and parallel with the left side of the engine and toward the front of the engine, where it was connected firmly to the outer end of a third rod, which ran at right angles under the engine where said third rod was connected in some way, not described in the record, with the ash pan. According to the particular mechanism of the equipment, the act of the employee in raising and lowering the first-mentioned rod, from his position in the cab, would have the effect of opening and closing the bottom of the ash pan in such manner as would result in dumping and cleaning it. It appears that when this equipment was in working order the ash pan could be cleaned and emptied by its operation from the cab. The Ash Pan Act, however, does not require equipment to such extent. The appellee testified that on the night in question he tried 10 or 12 times, while in the cab, after having emptied the pan, to close it, and says that because of cinders or clinkers or a high pile of ashes he was unable to close it from his position in the cab. Failing to do so, he intended to get down on the ground and close the ash pan by lifting up the front end of the second rod, stating that he had frequently closed it in this way. He contends, however, that in assuming a position upon the ground which would enable him to so close it he would be partly under the engine. The photographs which are made exhibits to and part of the statement of facts show an employee operating the equipment while standing something over 2 feet from the rails, although about 18 inches above his head and extending out 5 or 6 inches over that side of his person next to the engine is seen what we take to be an extension of the floor of the cab or outer edge of the running board of the engine. A witness for the appellants testified that he had frequently opened and closed the ash pan while standing upon the ground on the side of the second rod farthest from the engine, and the pictures show an employee operating it in this way.

The inevitable conclusion from the evidence upon this point is that when so working it, the danger to the employee is reduced to a minimum, and it cannot be held, when the law is reasonably construed, that such employee is in any sense required to "go under" the engine. The appellee testified that his method of operating the equipment when upon the ground was to stand at the front end of the second or horizontal rod, placing his hands on either side and under the rod, immediately behind the first rod, which extended up into the cab, raising the front end of the second rod until he could get his shoulder under it, thus giving him more power, and then he could raise the rod until the pan was closed, provided the equipment was in working order. His further statement is, if while so standing the engine should be moved forward, the perpendicular rod and the end of the horizontal might knock him down.

As we construe the law, it did not require the appellants to have either the first or second rods described above, and according to the record the third rod which was fastened to the ash pan might reasonably have been operated by the use of a crank or other leverage attached or attachable to its outer end. The evil which the law was intended to remedy was to require such a contrivance as would enable employees to open and close the ash pan without getting under the engine; that is, in such position between the rails or so close to the wheels or other parts of the engine that an unexpected movement would result in injury. The appellee, in operating the equipment, might have taken his position between the horizontal rod and the track. This, of course, would greatly enhance the danger. By taking his position as he describes at the front end of the rod, the danger would be lessened, but might result, in the event of a sudden forward movement of the engine, in knocking him down. If, however, he should take his position on the side of the horizontal rod farthest from the engine, it appears to us that there would be practically no danger from any movement of the engine, backward or forward, unless he should persist in holding to the rod after the engine commenced to move. There is no testimony tending to show whether or not he could have closed the pan at that time from the ground. His evidence does not show that his failure to close it from the cab was because of defects in the ash pan equipment, but tends to show that it was because of the presence of cinders and clinkers piled upon the track.

In the absence of evidence to the contrary, it must be presumed that the appellants have provided such equipment as the law required, and that the Interstate Commerce Commission, in the performance of its duty, had approved the equipment, and that the contrivance on that particular engine fully complied with the requirements of the ash pan law; i. e., that the equipment was such that the ash pan could be dumped and cleaned without the necessity of an employee having to go under the engine. Ft. Worth Denver City Railway Co. v. Smithers, 228 S.W. 637, (7).

Since the appellee bases his right to recover in part upon the failure of appellants to comply with the requirements of the Ash Pan Law, the burden is upon him to prove such failure. Proof merely showing that it would not be operated from his place in the cab falls short of discharging this burden, since the law does not require equipment which can be operated from that position. And his further failure to show that it could not have been operated upon this occasion from a position of safety upon the ground forces us to the conclusion that he has failed to establish this ground of negligence. If he decided to operate it from the ground, considerations of safety would require him to take such a position, if there was one which would enable him to accomplish his purpose without danger. We think it is clear that, if he had attempted to operate it in the manner shown in the pictures and described by the appellant's witness Roach, there would have been, at most, a minimum of danger, and in no event could it be said that he was, within the meaning of the law, under the engine. It is true that the jury found that the equipment is not such that the ash pan would empty and close without the necessity of plaintiff going under or partially under the engine to operate it. In arriving at this finding the jurors evidently misinterpreted the language of the act, concluding that, if an employee would be partially under the projecting floor of the cab, he would at least be partially under the engine.

The words "go under" have no technical meaning, and, as used in the Ash Pan Act, must be taken in their popular and usually accepted sense. To require railroad companies to so equip their engines that a party could stand where no part of the top of the engine, regardless of how far it might be above his head, would extend over him, might result in the presence of appliances which would result in great danger, because of their extension several feet beyond the rails, rendering them menaces to people and to buildings, mail cranes, and other structures near the track.

Having concluded that plaintiff has failed to establish a violation of the Ash Pan Law, thus removing this element of negligence from the consideration of the case, the further question presented is the charge of negligence in permitting grease and greasy water to be and remain upon the apron or deck of the cab and its effect upon the right of appellants to rely upon the defenses of assumed risk. It is only where the injury is contributed to by a violation of a federal statute by the common carrier enacted for the safety of employees that the rule of assumption of risk is abolished. In all other instances it remains in force. Southern Railway Co. v. Crockett, 234 U.S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; K. C. S. Ry. Co. v. Livesay, 118 Ark. 304, 177 S.W. 875; Cross v. C., B. Q. Ry. Co., 191 Mo. App. 202, 177 S.W. 1127; T. P. Ry. Co. v. White (Tex. Civ. App.) 177 S.W. 1185.

By referring to the special findings Nos. 6, 9, 10, and 8, supra, in the order stated, it will be seen that the jury determined that there was grease and water on the deck of the cab or engine at the time plaintiff undertook to go down out of the cab; that a person of ordinary prudence, in the discharge of his duties at that time, would have necessarily learned of the grease, water, and greasy water being on the deck; that a person of ordinary prudence would have necessarily learned of the dangers arising therefrom, in the discharge of his duties; and that he actually knew of the dangers mentioned. These findings are not complained of by the appellee. Their effect is plain. We cannot set them aside, and must necessarily hold that appellee assumed the risk, since they are supported by the evidence. In describing the occurrence that night, the appellee said that, as hostler helper, he, together with Lynas, another helper, and Hannah, the hostler, went to the engine to kill the fire and do the preliminary work required to be done before the engine was put in the roundhouse. He said:

"My torch burned only a few minutes after I got out there on the engine. I went up into the engine to open the ash pan and shake the ashes out of the grates. There is a lever on each side of the fire box door you shake the grates with. There are graters under the engine, under the fire box. While we were shaking them the engine was being moved backward and forward so that the cinders would not fall in one place; that was to be kept moving while we were shaking out the cinders and ashes. The first thing I did after I got in the cab was to open the ash pan so they could not fall in the pan. It is under the grates. I think the ash pan is a little forward in front of the grates. I opened that. By opening that I learned that there is a slide door where you open it. It pulls it back so that the clinkers and ashes will fall on the ground. That door is at the bottom of the ash pan. I opened it by the lever that extends up in the cab on the fireman's side, which I pushed down to open the pan. The lever that operates the ash pan you push it down. It has a hook that it hangs on, and, when you close it, it pulls up. The lever enters the cab directly in front of the fireman's seat; that is on the left-hand side; I don't remember how far back from the end of the cab, but several feet. It comes up through the bottom. When I took hold of it, it was pulled up and hanging on to a notch. To open the pan I took it off the notch and pushed the bar straight down. It goes down through the floor of the cab. The lower end of that bar joins onto another, and there is another lever joins onto that which runs to the ash pan. The second bar does not run back toward the back end of the cab; it runs forward towards the front end. The lever that joins to this bar the iron that I pushed down controls the ash pan, too. By pushing that lever down you pull the door of the ash pan open. We were to leave it open while shaking the grates. After we got through shaking the grates we had to close the ash pan before going into the roundhouse or onto the turntable. We were to close the ash pan by using the lever that extended up into the cab that I opened it with; that is, by pulling it up in the same position I found it. I tried to pull it up. I suppose I made 10 or 12 efforts to do so, but did not succeed. I did not close it because the lever would not come back up. I then started to get out of the engine to close it from the ground. If I had gotten on the ground, I could have put my shoulder under the lever on the ground and raised up with it. I have closed one in that way. I did not get down out of the cab; I fell out of it. I had my torch in one hand and started to get out. The torch was not lighted at that time; do not remember which hand I had the torch in. I turned around to get out of the cab backwards, and my foot slipped or something, I don't know what it was, and I fell out backwards. The proper and customary way to get out was to turn around backwards. When I went up into the cab I noticed that the engine deck was wet with something. I don't know what that was. I suppose it was water; I am not certain about it. When I started to get out, my foot slipped, and I fell backwards to the bottom of the turntable. I did not know that the engine had been moved onto the turntable pit. I fell about 11 feet to the bottom of the pit, which was covered with chalky rock or concrete. I saw the water or something on the deck when I first got into the engine cab, and before my light went out. I noticed that it was wet, seemed like all over. My information as to how the water probably came there is that most of the northern crews ate their supper on the engine and washed the dishes off on the deck as they came in usually. Sometimes we had to wait until they got through washing their dishes off before we took charge of the engine. I don't know that the water on the deck was greasy. I had seen the engine crews wash their dishes off on the deck several times. Sometimes they would shovel coal back and wash off the deck and make it clean. My foot slipped on the wet part of the deck. The deck is either steel or sheet iron. I was on the deck, walking back and forth over it, while Lynas and I were shaking the grates that night. I saw it when I first got on it; could see it glistening from the light of my torch. I first set the torch down on the floor, and then I set it on the fireman's seat. It was 4 or 5 minutes after I got up in the cab before my light was blown out. I remained there 20 or 25 minutes before I undertook to alight from the engine. I didn't see water put on the deck, and don't know where it came from; don't know whether the engineer and fireman ate any meals on the engine that day or not. They were not on the engine when I got there. When you crawl up in the engine I suppose water would be on the apron. I know the dangers of slipping in grease, though I didn't know that was grease. I knew the danger that night; would have known it if I had thought about it. I also knew the danger of slipping in water that was on iron or steel. The lever that runs up in the cab is used to dump while the engine is in motion. The fireman uses that when they are out making a run. I can stand in the ground and also dump the lever. It can be dumped from either the cab or while standing on the ground if it operates. I was going to get on the ground and put my shoulder under it to push it or try to push it in because I figured it that in that way I could get more strength against it to close it; I can get better leverage."

Having concluded that under a reasonable construction of the Ash Pan Law, as applied to uncontroverted facts, there has been no violation by appellants of the requirements of the act, and the jury having found that appellee assumed the risk incident to the fact of the grease and water being on the deck of the engine, it follows that neither of these alleged grounds of negligence can be considered as a proximate cause of appellee's injury.

The record upon this appeal, by reason of additional facts not before shown, and special findings presenting many questions materially different from those discussed upon the first appeal, where several other issues of negligence were submitted, and upon a general charge, we deem it unnecessary, in view of a reversal, to again discuss questions disposed of upon the former appeal.

Paragraph 19 of the charge does not authorize the jury to find double damages.

Since the evidence shows that the grease and water was all over the deck or apron of the cab, the issue requested by appellant with reference to probable injuries, if he had attempted to alight from the other end of the deck, was immaterial, and any answer that they might have made would have been simply a guess.

District court rule 56 (142 S.W. xxi) provides that exceptions to evidence may be embodied in the statement of facts in connection with the evidence objected to, and we see no valid reason why, in order to save time and labor, and to reduce the size of the record, the court may not, in a bill given to the admission of certain evidence, permit the objection to be extended to all testimony of the same kind without the very words of the same or other witnesses being incorporated in that or other bills.

The court permitted the appellee and other witnesses to testify with reference to his chances of promotion in the service to more lucrative positions. A part of the testimony of appellee is incorporated in the bill. The objection is to that and all similar testimony offered by the plaintiff or any of his witnesses upon the trial of the case, which the bill shows were objected to and the same ruling made by the court in every instance. The appellee was asked:

"Q. What were you making when you got hurt? A. $2.04 a night. Q. Amounting to how much? A. About $60 a month. Q. You worked seven days a week? A. Yes, sir. Q. What about the line of promotion for hostler's helpers' jobs; was there any? Were you in line for promotion?"

At this juncture the appellants objected for the reason that the case was one arising under the federal Employers' Liability Act and the amendments thereto and was being tried under the federal law, and as to whether or not there was a promotion for hostler's helpers' jobs was too remote, speculative, and immaterial. The appellee further testified:

"You asked me about the line of promotion from hostler helpers' jobs, and I was in line for promotion. In time, if I had kept my health and strength, I could have become fireman, I think. That was better pay, and there was a promotion above that for me to engineer, and that was better pay than the fireman, I understood."

George Long, a witness for appellee, testified:

"I am familiar with the rules of promotion and placement generally in the railroad service. You asked me to state whether or not there is a reasonable probability in a hostler's helper may be a fireman in the railroad service. Not any more than any other employee or laborer. There is a probability of it if they need him. That is not the line of his promotion. There is no line of promotion from hostler's helper or any other labor to a fireman. They pick a man that is capable of doing the work. You ask me if the following question was not asked me and didn't I make the following answer: ``Q. I will ask you, Mr. Long, whether or not there is a reasonable probability of a hostler's helper may be made fireman? A. Oh, yes; certainly.' That is right just as I answer it here. After a man becomes a fireman there is a line of promotion from fireman to engineer; that is where the line of promotion starts."

This witness testified that a fireman makes more than a hostler helper, and an engineer is paid more than a fireman, and admitted that the high wages he had testified about existed under the United States Railroad Administration. On cross-examination he testified in substance as follows:

"In order for a man to be a hostler, he has got to be a fireman. When a man's a hostler helper, when it comes to determining who will get the job as fireman, that is left up to the traveling engineer or roundhouse foreman to pick the man who they think is best qualified. There is no rule or regulation that a hostler's helper can lay his hand on and say, ``You have got to promote me to fireman.' A man can work as hostler's helper for six or seven years, and if there is a vacancy as fireman there is no rule or regulation that he can say to his employing officer, ``You have got to give me that vacancy.' It is up to the man he is working for as to whether or not he thinks he is fitted and qualified to fill that position. He is better to fill it possibly. Furthermore, when it comes to getting a fireman, the rule is the old hands — the man who has been in service longer — they get the preferred runs, and the preferred runs draw the biggest salary usually. It is also the rule that as long as there is a fireman on the extra board of the company you cannot call in outsiders to take the places until you fill up the places of all extra firemen. You have to. When a man first starts to fire, he is on the extra board. If a man lays off or something like that, or there comes an extra rush of business, the extra man goes out in his place. When he does get up to where he can fire, he has got to act as student fireman; he generally makes student trips. He goes out with some other fireman and engineer; that is known as student fireman. Speaking of promotions, the man longest in service is the man that is first considered for promotion seniority; that is the rule invoked and in full force; that applies to firemen and engineers — all services. You ask me did I ever know a hostler's helper to serve seven years without being promoted? There is no promotion, but if he was not advanced to some other position higher up I would think that he was an awful poor hostler's helper."

Temple, another witness for appellee and a hostler helper, testified as follows:

"You ask me if there have been any advancements or promotions there within my knowledge during the last two or three or four years from the simple position as what you hold to fireman and on up. There have been no promotions lately. I could not say there were any promotions, no advances. I don't think you can be promoted. I don't think a hostler's helper can be promoted to fireman unless they want him to be. You ask me if the former question was not asked me on the former trial and if I didn't answer it as follows: ``Q. John, I will ask you whether or not during the time you have been there you have known of any hostler's helpers becoming fireman? A. Yes, sir.' I made that answer. ``Q. About how many? A. Three to the best of my knowledge.' I know of two or three. I misunderstood you question a while ago. Those promotions that I knew of of hostler's helpers to fireman they were recently after I was first employed there."

On cross-examination he testified that he had been hostler helper since January, 1918, and with reference to such employees who have been promoted said:

"These men I said were promoted or put in as fireman, you ask me to state how long before I went there as a hostler's helper that they were promoted. I don't know if they were or that you could say they were really promoted or not. They asked to go to firing, and if there was an opening and they were eligible and the company told him they could do that. A man has to pass an examination to become a fireman. You ask me how many months before I went to work there when they became fireman. I don't exactly remember the time, but to give you my best judgment I believe right around close to four or five months. They were made firemen during the period of the war."

This question was considered by the Supreme Court of the United States in Richmond Danville Railroad Co. v. Elliott, 149 U.S. 266, 13 S. Ct. 837, 37 L. Ed. 728, where the admission of such testimony without showing there was a definite rule providing for promotion was error, the court saying:

"It is enough to prove what the plaintiff has been in fact deprived of; to show his physical health and strength before the injury, his condition since, the business he was doing (Wade v. Leroy, 20 How. 34; Nebraska City v. Campbell, 2 Blackf. 590; Vicksburg Meridian Railroad v. Putnam, 118 U.S. 545, 554), the wages he was receiving, and perhaps the increase which he would receive by any fixed rule of promotion. Beyond that, it is not right to go and introduce testimony which simply opens the door to a speculation of possibilities."

The appellee was asked if he was a married man, and if he had any children. He said he was married and had three children. This testimony was objected to as being wholly immaterial, and, when the court stated that he did not see the relevancy of it, appellant's counsel said, "We will withdraw our objections, since it is before the jury." A little later on in the trial appellants' attorney referred to the statement made by appellee as to his being a married man and said, "Now, then, let me ask you this question." Appellee's counsel interposed the statement that the evidence was excluded. The court remarked, "I think it was excluded." There was some further discussion between the court and counsel for both parties. When appellants' counsel asked appellee if he was living with his wife, there was some further discussion, and the court instructed the jury verbally that the evidence offered as to plaintiff's marriage would not be considered upon the issues of negligence and measure of damages. The whole proceeding was improper and will probably not occur upon another trial.

Since the judgment must be reversed, we will not discuss the propositions under which it is insisted that the verdict is excessive.

In view of the disposition we make of the case, it will not be necessary for us to consider the remaining assignments.

The judgment is reversed, and the cause remanded.