capital and labor do not constitute a legitimate basis for estimating the earning power of one personally contributing the element of labor where he has been wrongfully injured so as to be unable to furnish the same. The better rule, however, seems to be, and has been adopted in this state, that, even in such case, profits of such a business are admissible, not as an element of recoverable damage, but as tending to show possession of business capacity, and the extent of the decrease of capacity to work and pursue his customary employment and as an aid in estimating a fair and just compensation for decreased capacity. Ry. Co. v. Murphy, supra; Wallace v. Ry. Co., supra, and note in 52 L. R. A. 33, and numerous cases cited; 8 Am. & Eng. Ency. Law (2d Ed.) 654; Watson's Damages for Personal Injuries, 88 482, 503, 504, 507.

The correctness of the twelfth paragraph of charge upon the measure of damage is not questioned. It does not submit as an element of recoverable damage the loss of the profits resulting from boarding employés. Under the authorities quoted, the testimony was admissible as bearing upon plaintiff's earning capacity and loss thereof. This is especially true in view of the fact that here there was no combining of capital with labor as in the adversely cited cases.

[7, 8] Error is assigned to the overruling of a special exception addressed to the sufficiency of the allegation of negligence contained in the third count. The allegation is general, which is permissible where the doctrine of res ipsa loquitur is applicable, and it was so held upon the former appeal of this case. Ry. Co. v. Geary, 144 S. W. 1045. Under our holding the allegations are sufficient and the rule announced upon that appeal is the law of this case, and upon a subsequent appeal will not be reconsidered or overruled, even if it appears to be erroneous. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208 (W. of E. Ref.); Tinsley v. Bottom (Civ. App.) 155 S. W. 1053; Thompson v. Ry. Co., 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539.

The rule there announced, that generality of allegation in such cases is permissible, is deemed correct and supported by all of the authorities. Ry. Co. v. Hawk, Ry. Co. v. Young, Washington v. Ry. Co., McCray v. Ry. Co., and Ry. Co. v. Wood, all supra.

[9] Even if the exception was erroneously overruled, it is not apparent any injury resulted from such improper ruling, and it will not be presumed. Wells Fargo Co. v. Benjamin, 165 S. W. 120. Therefore, in any event, the action taken furnished no ground for reversal. Rule 62a (149 S. W. x).

the jury's province to adopt, it cannot be so regarded. At the time of the injury, plaintiff was a strong, healthy, and industrious man, 49 years of age, being, at the date of trial, 52 years old. His probable length of life was 21 years more. It was proved he had been accustomed to earn $125 per month as roadmaster and as section foreman, with the perquisites attached to that position of boarding the men, about $100 per month, and, at times, considerable upwards of that.

The testimony of plaintiff and of his physician was to the effect that plaintiff's right arm was paralyzed, so that it had been since the injury, and would be for his life, worthless and useless; that it was complicated by in extraordinary condition, under which it had to be always tightly bandaged, as, when taken out of the sling, it would jump up and down, and was unbearable until replaced in a tightened bandage. Owing to this condition, plaintiff had been unable to earn anything since his injury, and was permanently incapacitated. He had needed and received nursing attention since the injury, being unable to dress or undress himself or to prepare his food, or to sleep undisturbed, which conditions the jury was warranted in finding would continue. He had lost weight, and was undermined in health and in his nervous system. It was proven that a proper treatment of his injury would require the use of electricity for the rest of his life, the reasonable cost of which would be $250 per year, and would continue to require nursing and medical attention.

Taking into consideration this testimony, the verdict of $20,000 is not regarded as excessive, and there is nothing, aside from the amount, to in any wise indicate that it was the result of any improper influence or motive.

Affirmed.

TEXAS BLDG. CO. v. REED. (No. 628.) † (Court of Civil Appeals of Texas. Amarillo. May 23, 1914. Rehearing Denied June 27, 1914.)

1. MASTER AND SERVANT (§ 180*) FELLOW SERVANTS-OPERATION OF RAILROAD-STAT

UTE.

Under Rev. St. 1911, art. 6640, making a railroad liable for injuries to its servants while engaged in the work of operating its cars, by reason of the negligence of any other servant, a railroad construction company operating an engine and work train, and engaged in raising rails on a railroad and filling in under them, known as surfacing, and employing plaintiff as one of a gang picking up ties and rails along the track and loading them on flat cars, was engaged in the operation of a railroad, and plaintiff was engaged in the work of operating a train thereon, so that the company was liable to plaintiff for injury occasioned by his fellow

servants.

[Ed. Note.-For other cases, see Master_and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.*]

the said line of road, which was being surfaced. That W. J. Clarke was on said date, June 4, 1913, employed and working for appellant as foreman and boss of a gang of laborers under the employment of appellant, and on that day Clarke was in command and had charge and direction of the work and of appellee and other employés. At that time appeilee was working for appellant, together with other employés, under the superintendence of Clarke, and with the work train, and that they were then operating it on the line of railroad aforesaid, and stopping it along the lines at various points, picking up crossties and extra steel rails and other material along the track and loading the same on flat cars. While appellee and others, under the direction of Clarke, were attempting to load a steel rail on a flat car, and before the end of which appellee had hold of had been raised high enough to turn loose, without great injury to himself and others, the superintendent or boss and others began yelling conflicting calls and orders, which were confusing to appellee, so that he was unable to tell what was meant, and the men who were carrying the other end dropped their end of the rail too soon, which caused the rail to fall upon and catch, mash, and crush appellee's hand. It is alleged that he was wholly without fault or negligence, and that his injury was caused by the negligence of appellant, its agents, and employés―

"in charge of said engine and cars, in this: That the boss in charge as agent of said company was negligent and careless in the respect that he did not have some one person to give the signal word for letting down or dropping the rails; that he was negligent and careless in the respect that he allowed any and all the men that were raising and lifting the rails to yell, holler, and give orders at the same time; and, further, that he ordered and placed most of the strong men at one end of the rail which plaintiff and others were attempting to load at the time, and that this injury to plaintiff resulted, and placed weaker and insufficient number at the other end with plaintiff."

The appellant answered by general denial and contributory negligence that the acts complained of by appellee, to the effect that there were confusing orders given by appellant's employés, and that such acts or omissions, if any, where by fellow servants of appellee; that the work which appellee and his colaborers were engaged in at the time was under the exclusive charge and control of W. J. Clarke, who had entered into a contract in writing with appellant for the consideration mentioned in the contract, and that appellee and those who were working with him in the performance of the work were the employés of Clarke, and under his direct supervision and control, and were not employés of appellant, nor under its control; that the work being done was for Clarke, and not for appellant.

The appellee answered, by supplemental petition, that the contract set up as having been made between appellant and Clarke was

a subterfuge and an attempt on the part of appellant to defeat liability, and was an insidious attempt to shift its own liability onto Clarke, who was pecuniarily irresponsible; that Clarke was not an independent contractor, but a mere subcontractor and agent and employé of appellant; if said contract did create the relation of an independent contractor, that such relation had been destroyed and abrogated by a practical construction of said contract by the parties themselves, and that appellant did in fact exercise direction, control, and management of the details of the work to be done under the contract, and exercised direction and control as to the mode, manner, and means of doing said work and exercised control, etc., of the men working under Clarke upon the work; that it was not binding upon appellee; and that he never heard of such relation ex. isting between Clarke and appellant until after this suit was instituted.

The appellant assigns error upon the refusal of the trial court to give its specially requested peremptory charge to find a verdict for it (1) because the evidence did not show that Clarke had power and authority to employ and discharge appellee for appellant, and they were therefore fellow servants; (2) because the undisputed testimony showed that appellee's injuries were caused by the negligence of the fellow servants of appellee. And the fourth assignment is to the effect that the court erred in refusing to render judgment for appellant on its motion to do so, because it appears from the finding of the jury to the third specially requested instruction that appellee was a fellow servant with those whose negligence caused his injury.

The appellant, the Texas Building Company, entered into a contract with the Gulf, Texas & Western Railway Company to build a railroad on what is known as the Jacksboro extension to Saylesville, and that it did do so and employed Clarke and others on the work. Under the contract with the railway company, that company was to furnish appellant a work train to use in the construction of the road, and that it was to pay for its use. Some time during the construction of this road one Samuel Kaye, an agent and employé of appellant, entered into a contract of employment with the appellee at Mineral Wells. The appellee had been directed to this work by an Employers' Bureau at Ft. Worth, and Kaye met him at Mineral Wells and sent him out upon the work, agreeing to pay him $1.75 per day. Kaye told the appellee at the time that he (Kaye) was then working for appellant, and on that day he took appellee to the hotel, paid for lodging until he could be sent out over the road on to the work, and paid his expense at the hotel, and bought him a ticket, telling appellee that the conductor would put him off at the place where the work was being done. The appel

ply to persons operating railways within this state. Railway Co. v. Frazier, 90 Tex. 33, 36 S. W. 432; Railway Co. v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 601-605. The case of Lantry-Sharpe Co. v. McCracken, 105 Tex. 407, 150 S. W. 1156, cited by appellant, recognizes the rule substantially as above set out. It is there said:

ment.

[1, 2] We think the facts in this case show that, while appellant was a private corporation, it was nevertheless engaged in the operation of a railroad within the meaning of

articles 6640 and 6641, R. S. 1911. Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479. Under the facts of this case, we are inclined to think that appellant was engaged in operating a railroad, and that appellee was engaged in the work of operating a train thereon, and under such facts appellant would be liable to appellee for injury occasioned by his fellow servants. This case in its facts is much the same as those in the case of Railway Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S. W. 437. The jury found that appellee was injured while engaged in the work of operating a train. The Supreme Court, in the case of Railway Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, in referring to the Thornton Case, suggested that it had features which may distinguish it from the cases of Railway Co. V. Johnson, 47 Tex. Civ. App. 74, 103 S. W. 447, and Railway Co. v. Howard, 97 Tex. 513, 80 S. W. 229. In the recent case of Glover v. Houston Belt (Civ. App.) 163 S. W. 1063, Judge Higgins calls attention to the conflict in the decisions, and we think announces a correct rule. Whether we are correct or not in our views upon this question, we nevertheless think that Clarke was vice principal of appellant and in charge of the work, such as would render appellant liable for negligence on his part. If Clarke was not an independent contractor, then under article 6641, R. S. 1911, and the evidence in this case, and the findings of the jury, he was a vice principal and intrusted with authority to superintend, control, and command other servants then on the work being done, and that he had the right to direct appellee and other employés of the appellant engaged in that work. The common-law rule that the negligence of an employé could not be im

"Plaintiff's cause of action is founded upon the common law. There is no statute in this state controlling actions against persons or railways for injuries to the person not resultcorporations other than railroads and street ing in death. Those provisions of our law defining who are fellow servants and who are vice principals relate exclusively to employés of railroads and street railways."

We do not think the trial court was in

error in refusing to peremptorily charge the jury to find for appellant, on the grounds above assigned by appellant.

the trial court's refusal to sustain appel[3] The fourth assignment is based upon lant's motion to instruct a verdict for it upon the answer of the jury to the third special issue, requested by appellant, submitted to them for their findings. That special issue is as follows:

flicting and confusing orders in regard to load"Was plaintiff and those who gave the coning the rail which injured plaintiff in the same grade of employment, doing the same character and place, and at the same piece of work, and of work, and working together at the same time to a common purpose?"

To which the jury answered: "Yes."

[4] At the request of appellee, the court submitted the following issue: "Was plaintiff engaged in loading a steel rail on a flat car at the time of the alleged injury?" To this the jury answered: "Yes." "If so, did the Texas Building Company or W. J. Clarke adopt and use certain and suitable rules and systems of signals for the loading of such steel rail with safety and protection to the plaintiff?" To which the jury answered: "They did not." The jury found that the Texas Building Company was operating a railroad at the time and place appellee was injured, and that Clarke was operating the railroad as agent for appellant, and that the appellee was injured while engaged in assisting to operate the road for defendant, or in work which was incident to and connected with the purpose of operating said railroad. They also found that Clarke was the agent of appellant in such work, and that appellant was negligent, and that the appellee was not guilty of contributory negligence. The allegation of the petition, in describing the manner in which the injury was occasioned, alleges that the servants of appellant yelled conflicting and confusing orders, so that appellee was unable to tell what was meant by them, and that the other employés at the opposite end of the rail from appellee dropped their end of the rail too soon, which caused