It is our opinion that the fourteenth assignment shows no error.

The fifteenth assignment is without merit. The seventeenth and eighteenth errors assigned relate to charges, and are with regard to matters to which the attention of the district judge cannot be said to have been called in the motion for new trial, and they could not prevail here if well founded.

The court instructed the jury that it was a duty imposed by law upon railway corporations to do everything that could reasonably be done for the safety of their employés, and to have the structures erected along and by its line of railroad for use in connection with the running and operating of its trains along and over its roadbed reasonably safely constructed, and the attachments thereto connected to be of modern improvement and safe, and that a failure to do so would render the corporation liable for injury to an employé while in the discharge of his duty, unless he contributed thereto by his negligence. Assignment No. 5 complains of this charge, because the pleadings made no such issue, and the degree of care thereby imposed did not devolve on defendant. As the clerk copied the charge into the transcript, it is made to appear that the word "and" was written between the words "reasonably" and "safely," thus making the charge to read "reasonably and safely constructed." The original charge having been sent here by an order of the district judge, we find from it that the clerk was in error in his version of the charge, and that the word "and" does not appear in that connection. The rule is that the care exacted of a corporation in favor of employés is ordinary care in reference to its structures and appliances. It seems to us that to require the structures to be reasonably safely constructed would be the equivalent of requiring the company to exercise ordinary care with respect to them. But the charge went further, and stated that the attachments connected with the structures should be "of modern improvements and safe." When it is borne in mind that it was the spout attached to the water tank alone which is alleged and sought to be proved as the occasion of the injury, a charge which deals with this feature of the case, and imposes a higher degree of duty on the master in respect thereto than is required, was directly calculated to mislead the jury. This portion of the charge was of controlling importance as applied to the facts of the case. It is manifest that the court, after writing the charge, qualified it by interlining the word "reasonably" before the words "safely constructed," and appreciated the necessity of the qualification; but the correction was not extended to the clause stating that the attachments connected with the structures should be of modern improvements and safe. The charge was, without the qualification, erroneous. It is not the master's duty to furnish safe appli

ances, nor to adopt and introduce every improvement thereof. Beach, Contrib. Neg. § 125; Wood, Mast. & Serv. § 331; Railway Co. v. Garrett, 73 Tex. 265, 13 S. W. 62; Railway Co. v. Bell, 75 Tex. 50, 12 S. W. 321. Ordinary or reasonable diligence may dictate that a certain improvement should be adopted for the safety of the employé, but this would be a matter for the jury in determining the proper care under the circumstances of the particular case. As the evidence was that the appliances used for the water spout of this tank were the most modern, it is hardly probable that in this regard the jury were misled. Appellees argue that the clause simply stated a principle in the abstract, which could not have operated to mislead the jury, in view of other portions of the charges. We find in other portions of the charges language that would imply that the company was held to ordinary care and diligence only in respect to the tank spout with reference to its being a safe appliance, but are unable to bring ourselves to the conviction that this was done in such manner as to relieve the above charge of its misleading tendency. We also find that a charge was given at the request of defendant which stated the proper rule on the subject, but that this would not remedy the error has been held in Railway Co. v. Le Gierse, 51 Tex. 190. The clause complained of required that the attachments should be safe, and the other instructions stating or tending to state the rule with less severity, but without referring to the clause in a manner to show that the court meant to qualify it, would present inconsistent charges on a material issue, which were likely to confuse and mislead the jury. See, also, Edwards v. Dickson, 66 Tex. 615, 2 S. W. 718; Railway Co. v. Robinson, 73 Tex. 285, 11 S. W. 327. The clause objected to does more than state in the abstract a proposition. It states a principle, applies it to the case, and makes the liability of defendant turn on it. We are of opinion that the judgment should be reversed, and the cause remanded.

range, to be made without penning and herding them, the owner is still in control, for the purpose of attending to the stock; and, if he is negligent in this regard, neither the officer nor plaintiff in attachment is liable for the resulting damage, though the original writ is void.

3. A range levy upon partnership cattle, for the debt of one of the partners, does not deprive the partners against whom the writ did not run of their possession and control, but, at most, subjects them to the right of the purchaser at the sale under it to call for an accounting.

4. If an officer, in making a range levy upon cattle, takes actual charge of them, or prohibits the owners from looking after them, and by his negligence some are lost, he and those under whom he acts are liable.

5. In a suit against attaching creditors to recover damages resulting from a range levy on cattle in a herd, a charge that defendants are liable for cattle lost, strayed, stolen, "or perishing from neglect or otherwise," is erroneous, in not confining recovery to damages caused by wrongful acts of defendants or their agents.

Appeal from district court, Wise county; W. D. Harris, Judge.

Action by J. C. Carpenter and others against Donald & Cobb to recover damages resulting from a range levy on a herd of cattle belonging to a partnership of which plaintiffs were the members, to satisfy an individual claim against the plaintiff Carpenter. Plaintiffs had judgment, and defendants appeal. Reversed.

J. Y. Hogsett, for appellants. T. J. McMurray, for appellees.

HEAD, J. Appellees instituted this suit against appellants to recover damages alleged to have resulted from the levy of an attachment against Carpenter, individually, upon the partnership cattle of Carpenter, Haskell & Mahaffey. The officer attempted to make what is commonly known as a "range levy," but his return fails to show that written notice was given the owner or his agent, or any reason why this was not done. Appellees claim, however, that the sheriff took actual charge of the cattle by direction of appellants.

Upon the trial in the court below, appellees were allowed to introduce, over the objection of appellants, the following answer from the deposition of the witness Crumpton, to wit: "The cattle was allowed to run at large, not cared for, being neglected; and, owners not allowed to work and attend to the cattle and brand the increase, the stock is damaged and owners injured. The sheriff exercised control, and threatened to sell. The loss is ten per cent., by running at large and not being cared for, and owners not being allowed to handle them." In this we think there was error. The witness should have been restricted to a statement of the facts, leaving it to the jury to draw the proper conclusions therefrom, under the charge, as to what would constitute loss, injury, and damage to the cattle, for which appellants would be liable. Railway Co. v. Wesch, 85 Tex. 598, 22 S. W. 957; Railway Co. v. Wright, 1 Tex. Civ. App. 402, 21 S. W. 80.

Appellees, to establish the liability of appellants, rely both upon the legal effect of the range levy, and upon the actual control of the cattle alleged to have been taken by the sheriff thereunder; and we have concluded that, inasmuch as the judgment must be reversed, we can better subserve the purposes of another trial by giving our views upon these questions than by discussing the assignments of error seriatim.

First, then, to what extent does a range levy upon cattle, made in compliance with the statute, render the officer, and through him the plaintiff in attachment, liable for the damage resulting from straying, theft. and death for want of attention (these being the items of damage charged in the petition) during the existence of the levy? The statutes authorizing this kind of levy are as follows: "A levy upon horses, mules, jacks, jennets, horned cattle or hogs running at large on a range, and which cannot be herded and penned without great inconvenience and expense, may be made by designating by reasonable estimate the number of animals and describing them by their marks and brands, or either; such levy shall be made in the presence of two or more credible persons, and notice thereof shall be given in writing to the owner, or his herder or agent. if residing within the county and known to the officer." Rev. St. art. 2293. "When a levy is made * * * under article 2293 of this chapter, it is not necessary that such stock or any part thereof should be present at the place of sale, and the purchaser at such sale is authorized to gather and pen such stock, and select therefrom the number purchased by him." Id. art. 2314. We think it clear that the owner would not be authorized to remove the cattle from the range during the existence of such a levy, and the officer would have the right, and it would be his duty, to prevent him from doing so, should he make the attempt. Rice v. Miller, 70 Tex. 615, 8 S. W. 317. It also seems clear to us that the officer ordinarily would not have the right, nor be required, to herd and pen the stock, and charge therefor in his bill of costs, for the inconvenience and expense of doing this is the very reason given for the enactment of the statute. Also, it will be ob served that a levy of this kind may be made upon a very small number out of a very large herd. Gunter v. Cobb, 82 Tex. 598, 17 S. W. 848. And it could hardly have been intended that under such circumstances the officer would be expected to take charge of the entire herd, and charge the losing party with the expense of caring for them. It also would be unreasonable to suppose the legislature intended that by a levy of this kind the owner should be deprived of the right to herd, pen, feed, and look after the cattle, and at the same time the officer should not be authorized to do so; in other words, that during the existence of such a levy the stock should be permitted to run at large, uncon

in an action against a wrongdoer must be the result of the wrong inflicted. In order to recover damages, the party complaining must show, not only that he has suffered the loss, but also that it would not have been incurred but for the wrongful act of his adversary." This principle has peculiar application to the facts of this case. When we read the evidence, it is impossible to see upon what ground the jury could have based a finding for $2,000 actual damages, except upon the idea that the sheriff, and appellants through him, were insurers of these cattle during the continuance of the levy, and would be liable for losses resulting even from natural causes. So manifestly excessive was the verdict, when measured by the law applicable to the evidence, that appellees themselves felt constrained to promptly enter a remittitur of $500. We are therefore of opinion that, in view of the probable influence the giving of this charge had upon the verdict, it would of itself necessitate a reversal of the judgment, and that the entering of the remittitur, under the circumstances, will not cure the error. Railway Co. v. Wesch, supra.

We find no error in the action of the court in overruling the exceptions of appellants to appellees' petition. It is not claimed that Haskett and Mahaffey could recover exemplary damages for the malice of appellant against Carpenter; but they relied upon the invalidity of the writ, as well as the levy, and they had a right to allege as many defects as they could prove, and could not be restricted to one, even though they could thereby make a perfect case. Besides, no exemplary damages were allowed, and, even if the court erred in this ruling, it would not require a reversal.

In view of another trial, the evidence will not be discussed. The judgment of the court below will be reversed, and the cause remanded for a new trial.

against S. S. Sanger. Judgment for plaintiff. Defendant brings error. Affirmed.

Stanton & Turney, for plaintiff in error. T. A. Falvey and Waters Davis, for defendant in error.

NEILL, J. This suit originated in the justice's court, wherein the defendant in error sued plaintiff in error on an alleged contract for wages due him and certain expenditures incurred for plaintiff in error in the performance of the contract. In the justice's court judgment was rendered in favor of defendant in error for $122.15, from which plaintiff in error appealed to the county court, when judgment was rendered against him for $123.08, from which he prosecutes this writ of error. In the justice's court an account was filed by Noonan against Sanger, in which the following item occurs, viz.: "To repairs on wagon, shoeing mules, feed bill, and general expenses, $28.81,"-to which the defendant there, as well as in the county court, excepted, on the ground that it was not sufficiently itemized, and did not sufficiently inform him of the nature of the claim, nor state the dates of the repairs, shoeing, feed bill, and general expenses, and the amounts claimed for the several items. The exceptions were overruled in the county court, and an exception duly saved by plaintiff in error to such ruling; whereupon, after the jury was impaneled, the defendant in error pleaded orally, by reading the account, and alleging that on the

day of February, 1893, he entered into a contract with Sanger, whereby it was agreed that defendant in error was to take the team and wagon of Sanger to Cerrillos, N. M., and there haul coal for him, etc., for which he (defendant in error) was to receive, by the terms of said contract, $55 per month, and board himself; that plaintiff in error was to pay his expenses en route to Cerrillos, and that he (defendant in error) was to receive pay from the time he arrived there and began work; that he arrived at his destination and began work on February 27, 1893, and continued work under said contract until September 4, 1894, for which he was entitled to receive the sum of $344.40, and was also entitled to the further sum of $28.81, as shown by the account, making a sum total of $373.21, upon which he had been paid, as shown from his account, $233.28, leaving a balance due him of $139.93, for which he prayed judgment. Thereupon the plaintiff in error again interposed the same exceptions to the account and oral pleading based thereon, which exceptions were overruled, and exceptions reserved to such rulings. When defendant in error offered evidence to prove the item of $28.81, it was objected to, upon the ground that it was not sufficiently itemized and specific; whereupon he asked leave to withdraw his announcement of ready for trial, and amend his pleadings by setting out more definitely and spe

cifically the various items and charges composing the item objected to. The plaintiff in error objected to the court's granting such request, on the ground that such leave could not be granted after the trial of the case had commenced, which objection was sustained, and the defendant in error then excepted. Though this cause originated before a justice of the peace, we have deemed it proper to state thus much from the voluminous record now before us as necessary to the consideration of plaintiff in error's first assignment of error, which complains of the court's overruling his special exception to the item of $28.31 in defendant in error's account.

It has been held by our supreme court that the form in which an account sued upon in the justice's court was drawn up could not prejudice the right of the plaintiff, upon the merits of his case, as disclosed by the evidence (Doyle v. Glasscock, 24 Tex. 201); and as the assignment of error only goes to the ruling of the court upon the exceptions urged against the account, and does not complain of its rulings, upon the exceptions to the oral pleadings made in connection with the account (the action being upon an express contract), we do not think the assignment shows any error prejudicial to the rights of the plaintiff in error, or of which he should be heard to complain. Nor do we think that, if the assignment had gone to the oral pleadings, taken in connection with the item in the account complained of, such an error would be indicated as would entitle the plaintiff in error, in view of the record made on the trial, to a reversal of the judgment. Pleadings in the justice's court, except as otherwise specially provided, are oral, and the technical rules of pleading do not apply to the manner of forming issues in the justice's court in ordinary suits. Railway Co. v. Anderson, 85 Tex. 89, 19 S. W. 1025. As a case on appeal is tried de novo, and the same manner of pleading obtains, the same principles apply, and the sufficiency of the pleadings are tested by the same rules. Justices of the peace and litigants in their courts are not, ordinarily, skilled in the principles of pleading; and it would be practically impossible for an ordinary justice of the peace and parties before him to conduct the trial of a case under the technical rules of pleading. The law does not require impossibilities. It reasonably appears from the item complained of, taken in connection with the oral pleadings of the parties, what was claimed by the defendant in error from Mr. Sanger; but, if it did not, he ought not now be heard complain, after having the court refuse the defendant in error's request to withdraw his announcement and amend his pleadings by setting out definitely and specifically the various items and charges embraced in the part of the account complained of. It was within the discretion of the court to permit the amendment (Parker v. Spencer, 61 Tex. 164; Railway Co. v. Goldberg, 68 Tex. 687, 5 S. W. 824), v.27s.w.no.19-67

which plaintiff in error urged could not be done. The very thing he contended should have been done he objected to the court's permitting when defendant in error asked its leave to permit him to do it. It is his own fault that the account and pleading was not amended to his taste, and he will not now be allowed to take advantage of it. This disposition of the first assignment of error necessarily determines the one which complains of the court's admitting evidence to prove the item in the account excepted to adversely to plaintiff in error.

The charge of the court sufficiently presented the issues made by the pleading and the evidence of the several parties, and no injury is shown by the court's refusal of plaintiff in error's request "to state to the jury the pleadings of defendant and issues made by such pleadings." It is evident from the verdict of the jury that they found for the defendant in error upon the express contract pleaded and relied upon by him, and that the charge which submitted the issue of the reasonable value of his services formed no basis for the verdict. This charge, however, was given to meet a phase of the case presented by the pleadings and evidence of the plaintiff in error; and, if a verdict had been found on such issue, it would have necessarily been in his favor, and the defendant in error alone could have complained of it.

The

The sixth assignment of error is that "the court erred in not presenting and reading to the jury the first, third, and fourth special instructions asked by the defendant, and in not presenting the issues called to the attention of the court by said instructions." charges referred to relate to separate and distinct issues, and it does not appear from the assignment what they were, nor wherein it was error to refuse them or fail to present the supposed issues. Therefore this assignment is too general to require consideration. Burnett v. Friedenhaus, 2 Tex. Civ. App. 598, 21 S. W. 544.

There is sufficient evidence to support the verdict. No error is assigned which requires a reversal of the judgment, and it is affirmed.

Oct. 17,

MISSOURI, K. & T. RY. CO. et al. v. MOSTY. (Court of Civil Appeals of Texas. 1894.) BOND ON APPEAL-TRIAL DE NOVO-EFFECT OF APPEAL.

1. Though, in a bond on appeal from a joint judgment against two persons, one of them fails to bind himself to pay such judgment as may be rendered on appeal against the two jointly, the bond, as to the other, is good.

2. Where, on appeal from a judgment of a justice against two or more persons jointly, a trial de novo is to be had, an appeal by one of such judgment debtors annuls the judgment appealed from.

Appeal from Tarrant county court; Robert G. Johnson, Judge.