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Edminster, in compromising the two items that is, the roof item and the damages for delay-agreed to his proposition; that Morin said nothing either way; that after the adjustment was reached they began dictating it to a stenographer, and, when the roof item was reached, Halcomb and his attorney violently protested against the allowance, saying that it was unjust, inequitable, unfair, and illegal; that Halcomb and his attorney came up to the balcony where the arbitrators were, and entered into quite a lengthy discussion of the matter, objecting most vigorously to what had been done; that he (Isaacks) protested against their interfering with the deliberations of the board, stating that they ought to get down and out; that Mr. Anderson was not there, and had no attorney there, and that their presence was unfair; that the other two arbitrators refused to sustain him in his protests as to the presence of Halcomb and his attorney, but permitted them to take part in their deliberations, and that over his protest the meeting again adjourned; that he stated to them that he didn't know that he would have anything, further to do with the board; that the matter had been fairly and honestly adjusted, and that there was no excuse for adjourning the board at that time. Edminster testified:

"The truth of the matter is that, if Mr. Myer [the attorney] and Mr. Halcomb had not interrupted our proceedings and objected to our decision, that decision that we had already made would have been signed by all three of the arbitrators, and would have been our final

decision."

The testimony further shows that most of the decision had been reduced to writing when Halcomb and his attorney went to the balcony.

Appellee's version of the facts is quite different from the statement made by Isaacks, and possibly under their statement no error is shown; but it was the duty of the jury, and not of the court, to pass on the facts and weigh the testimony.

before him (according to the testimony of appellants, uninvited) he refused to request the withdrawal of such attorney, but listened to him and followed his suggestions as to the law by which they were to be governed. This conduct on the part of Morin was sufficient to raise an issue of fact against his fairness as an arbitrator. Again, the testimony of appellants clearly shows improper conduct on the part of Halcomb and his attorney after the award had been reached, of such a nature as to raise an issue of intimidation on their part towards the board. When the award was finally made, instead of allowing the $960, as was agreed to by all three of them, they allowed only $150, and altogether refused Anderson's claim for damages based on the clause of the contract allowing $10 per day for delay.

The agreement of the arbitrators, adjusting the differences between the parties, according to appellants' testimony, was not only fair and equitable, but was also a lawful agreement, and one which the courts would have enforced. Halcomb and his attorney, in their protest before the board against the fairness of the award, failed to consider the fact that the award also included an adjustment of the damages growing out of delay in constructing the building. Notwithstanding by their presence Halcomb and his attorney had violated the agreement shown by appellants' testimony, if they had done nothing more than enter a formal protest to the award, or presented an argument on request of the board, we would not be inclined to hold

that their conduct raised an issue of fact against the award. But Isaacks testified that they intruded themselves before the board; that they refused to go down when requested; that they precipitated a very bitter discussion, and challenged the award as being unfair, unjust, and inequitable, and one which the courts would not enforce. So violent was their protest that the meeting broke up in disorder. Two of the arbitrators refused to conclude the agreement, and in their final award [1, 2] We recognize that "arbitrations are rendered a decision vastly different from the favored in law, and every reasonable intend- one which had been honestly and fairly ment will be indulged in to support them." reached. The final award was to the prejuHill v. Walker, 140 S. W. 1159. But a show-dice of appellants in the sum of about $800. ing of fraud, mistake, bias, undue influence, Edminster testified that they heard no new or intimidation will avoid an award made by evidence between the second and third meetthem. In this case the award was made by ings. What, then, had entered into the case, two of the arbitrators, Morin and Edminster. causing this radical deduction in the sum to Morin was selected by the appellee. It is un- be allowed appellants? Appellants say it disputed in the record that, the only time an was fraud, bias, prejudice, and intimidation. attorney for the appellant appeared before In our judgment, the facts of this case raise them as such arbitrators, Morin refused to let this issue, and error was committed in inhim remain in the room, and requested that structing a verdict for appellees. he withdraw. It is also undisputed that when the attorney for the appellee appeared

The judgment of the trial court is reversed, and the cause remanded.

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1. Master and servant 103 (2)-Duty to by appellee, Flinn, against appellants, Walkkeep tool in condition defined.

If there was nothing to indicate to injured section foreman that the temper of a maul has been changed since it was furnished him, or that he knew the dangerous condition in which it was because not properly tempered, he was not under duty to send it to the blacksmith shop to be properly tempered, as required by the railroad's rules.

2. Master and servant 103(2)—Duty to furnish safe tool nondelegable.

The duty of furnishing a safe and suitable maul or sledge for use in his work by its section foreman is a nondelegable duty of a railroad, of which it cannot relieve itself by charging the foreman with its performance.

3. Master and servant 286 (7)-Negligence in furnishing hammer question of fact.

It cannot be said as a matter of law, without reference to the use made of it, that because a hammer or maul is a simple appliance a master, when furnishing it to his servant, does not owe to him the duty to use ordinary care to see it is reasonably suitable and safe to use in the work to be done.

4. Master and servant 286 (7)-Negligence in furnishing defective hammer held for jury. In an action for injuries to a railroad section foreman, struck in the eye by a sliver from a maul or hammer, question of negligence in furnishing such hammer held for jury.

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er D. Hines, Director General of Railroads, and the El Paso & Southwestern Railway Company of Arizona, to recover damages for personal injuries alleged to have been sustained by him while in the employ of appellants as a section foreman on one of its lines of railroad in New Mexico. The facts are substantially without dispute and are as follows:

On February 3, 1919, Walker D. Hines was the Director General of Railroads, including the El Paso & Southwestern Railroad Company, and was then operating the lines of said company in New Mexico in interstate commerce, and Flinn was section foreman on the railroad at Victoria, N. M. On the day named it became necessary and a part of Flinn's duty to repair a part of the railroad track and switch, and to make the repairs it was necessary for Flinn to cut or remodel a tie plate, and in order to do so it became necessary to use a chisel and strike it with a chisel hammer or sledge; the hammer having been furnished appellee and other employés by appellant for that purpose. While Flinn was holding the chisel another of appellants' employés was striking it with the sledge, and while doing so the sledge slivered and a piece of the sledge flew off, striking Flinn in the eye, and caused the injuries of which he complains. The negligent act assigned was that the sledge furnished him was unsafe because it was too hard, brittle, not properly tempered, and for that reason when used in striking on another hard instrument it broke or slivered; that appellants knew, or by inspection could have known, of the defective condition of the sledge; and that Flinn was ignorant of its condition.

Appellants answered by general denial;

6. Master and servant 288 (12)—Assump. denied Flinn's injury and the extent of it tion of risk jury question.

In an action for injuries to a railroad section foreman, when a maul or hammer slivered and the piece struck his eye, question of assumed risk held for jury.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by E. L. Flinn against Walker D. Hines, Director General of Railroads, and the El Paso & Southwestern Railway Company of Arizona. From a judgment for plaintiff against defendant Director General, such defendant appeals. Affirmed.

as alleged; alleged that the sledge or hammer was a common and ordinary tool, which, if defective, its defects were plain and apparent to Flinn, and that it was Flinn's duty to observe and know of its defects and not to use the sledge if it was in the condition as alleged; that if Flinn was injured same was due to ordinary risks incident to his employment, and that Flinn assumed the risk of using the sledge in the manner and in the condition it was in; that Flinn was section foreman, and if any inspection of the hammer was necessary to determine its condition it was his duty to make the inspection; that appellants' instructions con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tained in its book of rules made it Flinn's duty to keep all tools in first-class condition, and when same needed repair to send same in to place designated by the head of the department and to make requisition for a new one. The case was dismissed as to the railroad company, and a verdict and judgment rendered against appellant, Walker D. Hines.

Paul Flinn, son of appellee, testified:

ignated by the head of the department." "When tools break or wear out, the section foreman sends them to the blacksmith to be fixed, and it is the duty of the blacksmith to properly temper the tools. When a tool is too brittle it is liable to break. When a tool is properly tempered it will mash instead of break. Flinn made no requisition for new tools, mauls, or chisel. If a tool is not serviceable Flinn is supposed to order a new one. He is Appellant's insistence here is that the court supposed to do so only when they are battered or broken. When a tool shows to have been was in error in refusing to peremptorily inchipped off, that is an indication that something struct the jury to return a verdict for ap-is wrong and it should be sent in." pellant. While the error assigned is discussed under three propositions, they are to the effect that, where the evidence is uncontroverted and to the effect that the duty. of inspection and keeping the tools and appliances in proper condition is on the employé, the employé complaining of injury by reason of such tools being in bad order or condition, and this defect being the proximate cause of the injury, such employé cannot recover; that where the duty of inspection is with the employé he is presumed to know the defects, if any, in the tools which it is his duty to inspect and keep in repair or replace with new or other tools, and that under such conditions the appellee assumes the risk, as a matter of law, of using such defective tool. Without stating all the evidence, we will state briefly such as seems relevant to the contention made.

*

*

perfectly good.

"My father was holding the chisel so the Mexican could cut the end of the tie plate off. I examined the chisel maul after the accident occurred. On the face of the maul and the side it was all chipped off. Chipped off 11⁄2" on the face, and about 14" upon the side of the maul. I didn't find any other slivers around there. * * This maul was chipped around the edge of the face and off the side. As to how many places I noticed this chip, on the other side of the maul there was maybe two small ones, and on the other side of the maul it was * I didn't see it break, but I was using it just a few minutes before. This new break I have referred to was a large chip off one side. It was a place about 11⁄2" around the side of the face of the maul and be a new break. There were some small old 11⁄2" up the side. The large chip off showed to chips off the opposite side; they had broken some time previous to that. Showed to be an ex-old break. I do not know the exact time my father had been foreman at that place; I think about three or four months, maybe two months. * He had been using the tools all the time he had been there."

Appellee testified: In his 25 years' perience he had occasion to handle mauls and chisels of that character; from his experience, when a tool has been broken he can judge whether or not it is properly made; had had the maul on the hand car before the accident and used it; it was a tool they used right along, but he never had any occasion to make a special examination of it; said:

"It was my duty and I did inspect tools and keep them in good shape as near as I could. * As to whether I stated a while ago that I had not inspected this hammer, I took it for granted it was a good maul because there were no defects. Yes; I looked at the maul; it looked perfectly good as far as I was concerned."

Welch testified: Was road master; was familiar with the duties of section foreman; the foreman is responsible for his tools; is supposed to know his tools are safe; quoted rule 280, which reads:

"Employés must keep their tools in first-class condition. When needing repair, they must be sent to the place designated by the head of the department. When a tool is no longer serviceable, the foreman must make requisition for a

[1, 2] It seems to us that the extent of the duty appellee assumed in looking after the safe condition of the maul or hammer is well stated in the rule above quoted. He was to keep the tool in first-class condition; when it needed repair he was to send it to the place where it was to be repaired; the witness Welch added to the rule that when it was not in proper temper he was to send it to the blacksmith. The maul seems not to have had the proper temper, and for that reason, instead of mashing when used, it splintered when struck on the steel or iron plate. The evidence does not disclose that when the accident happened the maul was in a temper different from what it was when it was furnished Flinn. If there was nothing to indicate to Flinn that the temper of the maul for some reason had been changed since it had been furnished to him, or that he knew the dangerous condition in which it was because not in proper temper, we can see no reason why he should send

(222 S.W.)

tempered. The duty of furnishing a safe | Co. v. Patrick, 50 Tex. Civ. App. 491, 109 and suitable maul is one, we think, of the S. W. 1097. nondelegable duties of the master of which he cannot relieve himself by charging his servant with its performance. It is a personal obligation the master owes to the servant. Gulf, etc., Ry. Co. v. Johnson, 1 Tex. Civ. App. 103, 20 S. W. 1123; Railway Co. v. Pope, 43 Tex. Civ. App. 616, 97 S. W.

534.

[3] It cannot be said, as a matter of law, without reference to the use to be made of it, that because a hammer or maul is a common and simple appliance the master, when furnishing it to his servant for use in the discharge of his duties as such, does not owe to him the duty to use ordinary care to see that it is reasonably suitable and safe for the servant's use in the service to be performed by him. If the hammer was to be used in a service not requiring a proper temper, it might be said that the master was not lacking in care in furnishing one not properly tempered; but we think it should not be so said as a matter of law when the use to be made of it required a proper temper when struck against a steel or iron plate to prevent it from being a dangerous instrument. Houston & T. C. Ry.

[4-6] We are of the opinion that the circumstances of this case, as disclosed by the evidence, were such as to have a jury determine the question of negligence vel non of the appellant upon a consideration of all the facts. The question of assumed risk depends upon the same considerations. As Isaid by the Supreme Court in Drake v. San Antonio & A. P. Ry. Co., 99 Tex. 240, 89 S. W. 407, in furnishing a tool of any kind, the master is bound to use ordinary care for the safety of the servant who uses it. If there was negligence on the part of appellant in furnishing the hammer which, beit was to be put, exposed Flinn to a danger which in the exercise of ordinary care in doing his work would not have been brought

cause of its unfitness for the use to which

to his knowledge, he cannot be held to have assumed the risk resulting from his employer's negligence. We have reached the conclusion that the issues of negligence and assumed risk under all the circumstances and facts shown were for the jury to determine, and that the trial court was not in error in refusing to give the peremptory instruction requested.

The case is affirmed.

Appeal from District Court, Van Zandt

MASSEY et al. v. ALLEN et al. (No. 8322.) County; Joel R. Bond, Judge.

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Under Vernon's Sayles' Ann. Civ. St. 1914, art. 7857, every will, except when wholly in the handwriting of testator, must be in writing and signed by testator, or by another at his direction and in his presence, and attested by two or more credible witnesses above the age of 14 years, by subscribing their names thereto in presence of testator.

2. Wills

293 (1)-Evidence other than that prescribed by statute may be resorted to for probate.

While the method of Vernon's Sayles' Ann. Civ. St. 1914, art. 3267, is the preliminary rule for proving wills, other evidence may be resorted to, both in lieu of the statutory method and to supply lapses of memory on the part of the subscribing witnesses.

3. Wills 302 (1)—Evidence held insufficient to prove due execution.

In proceedings to probate a will, evidence held insufficient, under Vernon's Sayles' Ann. Civ. St. 1914, art. 3267, to prove execution in compliance with article, 7857.

4. Wills165(1)-Declarations of testator inadmissible, except on issue of undue influ

ence.

Though declarations of testator that he has made his will are not admissible, either on issue of execution or attestation, where it is alleged by contestants that proponents have exercised undue influence, such declarations, made within a reasonable period from execution, are admissible to show testator's state of mind and effect of such influence thereon.

Muse & Muse, of Dallas, and Simpson, Lasseter & Gentry, of Tyler, for appellants. Wynne, Wynne & Gilmore, of Wills Point, and Stanford & Sanders, of Canton, for appellees.

RASBURY, J. Appellants in the court below contested the application to probate the will of W. J. Allen, and the appeal is from the judgment of the court, entered upon special verdict of the jury, admitting it to probate. By requested peremptory instruction in the court below before verdict, and in various ways thereafter, appellants challenged the sufficiency of the evidence to warrant the probate of the will and as a consequence the submission of the case to the jury. In our opinion the contention must be sustained. We will not attempt to follow appellants' method of presenting the issue, but, in lieu thereof, state the reasons why, in our opinion, the evidence does not support the findings of the jury, which, aside from the issue of fraud and undue influence, were in substance that N. A. Matthews and k. F. Williams, subscribing witnesses to the will, signed same in the presence of W. J. Allen, the testator.

[1] To properly understand our conclusion, it will be of assistance to recall that every will, except when wholly in the handwriting of the testator, to ave effect as such, must be in writing and signed by the testator, or by another at his direction and in his pres

5. Wills 322-Declarations of testator in- ence, and attested by two or more credible admissible in rebuttal.

In proceedings to probate a will, testimony of a devisee as to certain declarations of testator tending to show the will offered was the will he intended to make, such witness being called by proponents in rebuttal, should have

been excluded.

6. Evidence 155(1) Admission of illegal evidence does not authorize similar evidence for adversary.

witnesses above the age of 14 years by subscribing their names thereto in the presence of the testator. Article 7857, Vernon's Sayles' Civ. Stats. That the essentials required by the article cited to constitute a will, when not wholly in the handwriting of the testator, concurred, are to be shown primarily (1) by the written affidavit of one of the witnesses, taken and subscribed in open court, or by their depositions if they are nonresidents of the county or unable to attend court; or (2) if none of the witnesses are living, then by proof of the handwriting of the testator and the attesting witnesses by affidavit taken in open court or by depositions. Article 3267, Id. It has been decided that in the cases first enumerated-that is, Where an objecting party permits like tes- when the will is proven by the affidavit of timony to be introduced without objection, that one of the attesting witnesses-"the clear admitted over his objection will be held harm-inference is that it [the affidavit] must conless. tain such [facts, as are necessary to concur

The admission of illegal evidence on the part of one of the parties will not authorize his adversary to introduce similar illegal evidence in rebuttal, when excepted to.

7. Appeal and error 1050(1)—Testimony harmless, where party does not object to like testimony.

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