
    No. 2561.
    Texas & New Orleans Railway Company v. Mary Crowder et al.
    1. Depositions.—When the answer of a witness in a deposition is evasive in response to a question pertinent to the issue, and having for its object the ascertainment of the witness’s means of knowledge, the deposition should be excluded.
    2. Charge op Court.—A charge of court directed to an issue involvód which gives the law correctly, but which in the opinion of the appellant’s counsel should have been qualified to meet his theory of the case will not be cause for reversal when he has failed to ask the charge desired by him.
    8. Charge op Court.—In an action against a railway company to recover damages for injuries that resulted in the death of plaintiff’s.minor son, the only connection in which the minority of the deceased can be considered is on an inquiry as to whether the railway company which employed him had used such care as his age and inexperience would render necessary. When the action is for the loss of services of the child the rule is different. See opinion for a charge in this regard held improper.
    14 Bes Gests.—See opinion for declarations held not to constitute a part of the res gestEB.
    
      5. Cases Approved.—On the subject of res gestae, Wald ell v. Railway Company, 95 New York, 276; Martin v. Railway Company, 9 New Eng-1 land Reporter, 505; State v. Estoupe, 1 Southern Reporter, 448, and-1 Mayes v. State, 1 Southern Reporter, 733, approved.
    Appeal from Harris. Tried below before the Hon. James Masterson.
    
      W. N. Shaw and S. R. Perryman, for appellant.
    
      F. F, Chew and W. P. Hamblen, for appellee;
    As it is shown by all the testimony that the appearance of the boy, Cohn, was such as necessarily to indicate to the defendant’s agents that he was a minor, and further shown that he was employed by defendant without the consent or knowledge of his parents, it was not necessary to disprove negligence on the part of the boy, under the issues made by the pleadings and evidence in, this case, to entitle plaintiff to recover. (Railway v. Redeker, 67 Texas, 190, and authorities therein cited.)
    The court did not err in the second paragraph of its charge to the jury in what is therein stated about the minority of George Cohn, the party killed, because that he was a minor, and that the railway company’s agents who employed him could and should have known of his minority, was an issue in" the case, made so by the pleadings and the evidence, and said charge was as favorable to defendant as it could reasonably have asked. (Railway v. Redeker, 67 Texas, 190, and authorities cited.)
    The court did not err in admitting in evidence the declarations of George Cohn, detailed by the witness Eli Birge, made at the time and place of the injury, because same was part of the res gestee, being the immediate emanation of the act. (City of Galveston v. Barbour, 62 Texas, 176, and the Missouri case therein cited: Railway v. Shafer, 54 Texas, 648; Railway v. Leverett, 3 S. W. Rep., 50, and numerous authorities therein cited and discussed by the court; 1 Greenl. Ev,, sec. 108.)
   Stayton, Chief Justice.

Ho witness was at the place where the deceased was injured, and it became important to the defendant to show the situations of persons who were testifying to facts on which -,the jury were expected to determine whether he was injured under such circumstances as would make the appellant liable, and to show the means of knowledge possessed by them. To this end, a witness who testified by deposition was asked: “How far were you from Cohn when he was hurt, and was it day or night ?”

His only answer to this was: “It was night when the accident happened, some time about eight o’clock.”

The following interrogatory was also propounded to the witness: “Could you see, and did you see, what Cohn was doing [just at the time he was hurt? And do you know what he was 'doing, or how it was he came to be injured?”

The answers to this cross interrogatory were: “I saw-Cohn’s lamp at the time he was acting as brakeman. I know that he Was there at work as brakeman5 he was run over by the cars.” There was a motion to exclude the deposition on the ground that the cross interrogatories were not answered, and on the ground that the answers were evasive, and the motion was overruled.

In view of the facts shown, the questions were pertinent, and if answered, would have shown the knowledge and means of knowledge possessed by the witness which would have enabled the jury to place the proper estimate on the general statements made by him. His position with reference to the place where the deceased was injured was important, for his means of knowledge of facts testified to by him largely depended upon that fact. The interrogatory that sought information as to this he failed to answer at all, and there is nothing in his answers to other interrogatories which gave the desired information. Whether he could see and did see what 'the deceased was doing just at the time he was hurt, was im- ■ portant, but he failed to state whether he could or did see him at that time. His statement that he “saw Cohn’s lamp at the ¡time he was acting as brakeman,” was not an answer. He hnay have seen the lamp but not the deceased, and the answer "does not even fix the time when he saw the lamp. Cohn was Wight brakeman and the sight of the lamp may have been at «any time during the night while he was acting as brakeman. •This part of the answer was evasive as was the residue of it, •and we are of the opinion that the deposition should have been /excluded. The first paragraph of the charge was as follows:

1. It is the duty of a railroad company to keep its tracks and switches in good safe condition for use, and a neglect on Its part to perform this duty renders the railroad liable in damages to an employe receiving injuries from that cause whilst jSn discharge of his duty without negligence on his part, and Jare in same manner liable to those entitled in case of death of 'the employe.”

This was a correct general statement of the law applicable to 'the case made by the pleadings, and if the appellants’ counsel 'was of the opinion that facts existed which would make it negligence for the deceased to attempt to make a coupling, knowing the track at the place to be in bad condition, a charge should have been asked that would have presented that phase of the case to the jury.

It is urged that the court erred in giving the following paragraph of the charge: “If the evidence convinces you that, George Cohn was a minor son of plaintiff Mary Crowder, and | was employed by defendant company, and if in the exercise of j reasonable care and diligence, the railroad company’s agents j employing him could and should have known of his minority; ■ and if you further find from the evidence that, whilst engaged { in the capacity of brakeman, without negligence on his part, i he was injured substantially as alleged in the petition, and if ! said injuries were caused to deceased by reason of the bad con- ; dition of defendant’s tracks at place of injury, find for plain- J tiff and assess his damages.” J

This is an action brought by the appellee to recover damages . for an injury that resulted in the death of her son, an employe j of the appellant, and to entitle her to recover it was incum-; bent on her to show such facts as would have entitled her son ! to recover had he lived. Were he alive and plaintiff, the fact1 that he was a minor and employed by appellant with knowl- i edge of that fact would not entitle him to recover, and the' only respect in which his minority could be taken into con- J sideration would be upon an inquiry as to whether the em-. ployer had used such care towards him as his years or inexperience would make necessary. (Railway Company v. Carlton, 60 Texas, 400; Railway Company v. Crowder, 61 Texas, 262; 63 Texas, 505.) Were this an action by a parent for the loss of é .services of a minor child, the rule would be as stated in Railway Company v. Redeker, 67 Texas, 190. Such, however, is not the character of this action. The effect of the charge com¡plained of was to make it incumbent on the appellees to show such facts as would ordinarily fix liability on a master for am! jinjury to a servant while in his employment, and in addition,J to this, the further fact that the deceased was a minor whose-age could and should have been known to the appellant. This imposed a burden on the appellees greater than the law imposes. In such a connection, as used in the charge, the fact of ■minority was irrelevant, and it ought to have been omitted.

Opinion delivered March 13, 1888.

A witness was permitted to state that the deceased, a short ■time after he was injured, in answer to an inquiry as to how he came to get hurt, said that “he jumped off the cars and went to make a coupling, but as he went to come out his leg got fastened under the rail; that he could not get it out, and they ran over him.” We are of the opinion that his declaration was not res gestae, and should have been excluded. (Waldell v. Railway Company, 95 New York, 276; Martin v. Railway Company, 9 N. E. Rep., 505; The State v. Estoupe, 1 S. Rep., 448; Mayes v. The State, 1 S. Rep., 733, this question is very fully discussed, and the authorities cited by Justice Clifford in Insurance Company v. Mosley, 8 Wallace, 409.)

There was evidence tending to show that the railway track was defective in such way as to render the work of a brakeman dangerous, and on the last trial there was evidence, not introduced on the first, tending to show that the deceased was injured while attempting to make a coupling, and the court did not err in refusing to instruct the jury to find a verdict for the defendant. The cause should be submitted to a jury, if one be demanded, under a charge which will enable them to consider all the facts tending to show the want of due care on the part of the appellant and the deceased.

For the errors noticed, the judgment will be reversed and the cause remanded.

Reversed and remanded.  