"William Turner was struck and killed by the cars of the Houston & Texas Central Railroad Company on November 20, 1901. He was a section foreman of appellant, and in charge of a gang of men at work in its switch yard in the city of Waxahachie. There were three parallel tracks in the yard a short distance apart running east and west. The north track was known as the passing track; the middle, as the main track; and the south track, as the elevator or mill track. The section men under the control of the deceased, William Turner, were engaged at the time of the accident in repairing or putting in what is called a cut-off track between the main track and the passing track on the north side of the main track. The yard crew were engaged in switching and transferring cars from one track to another. While this switching of cars was being done the deceased, Turner, went upon the elevator track, some 20 or 50 feet from where his men were at work, at or near the east end of a flat car which was standing on that track. While in this position the switch crew `shoved' or `kicked' back from the west onto the mill or elevator track some box cars, which by the impetus given them by the engine, rolled back eastward, struck the flat car, causing it to move suddenly forward against Turner, knocking him down and running over him, inflicting injuries upon him, from the effects of which, he died in a few hours. He left surviving him, Mollie Turner, his wife, who brought this suit to recover damages alleged to have been sustained by her on account of her husband's death. The defendant pleaded the general issue, contributory negligence, and assumed risk on the part of the deceased. From a judgment rendered in appellee's favor for the sum of $5,000, the present appeal is prosecuted.
"The court charged the jury as follows: `When a person enters into the employment of another, he assumes the risks ordinarily incident to such employment. He does not assume risks arising from the master's negligence; neither does he assume risks arising from the negligence of other employés working in another department of service, unless he knows of these risks. In no event does he assume risks arising from negligent acts of other employés working in a different department of service, which are unusual and extraordinary. You are further charged that on November 19, 1901, there existed an ordinance of the city of Waxahachie prohibiting the running of trains or cars, within the city limits, at a speed of over six miles an hour, and, in this connection, you are instructed that if you believe from the evidence that the car or cars kicked in onto the mill siding (if they were so kicked) were caused to run at a speed of over six miles an hour, and were so running at the time the flat car was struck (if it was), and that such speed (if it existed), caused the flat car to run on, against or over William Turner, producing
and causing his death, then plaintiff would be entitled to recover, unless you find that William Turner was guilty of contributory negligence as hereinafter charged.'
"Upon the issue of assumed risk, appellant requested the following charge, which was refused: `In addition to the main charge just given you, you are instructed that if you believe from the evidence Wm. Turner knew, or had reason to believe, that the cars would probably be switched in from the main track upon the track known as the "elevator track," and that the usual and customary manner of placing cars on this track was by shoving or kicking them over the switch, with a speed at which the cars were then moved, and permitting them to run loose down the track disconnected from the engine, and to stop by force of gravitation without the application of brakes, and without any person on such loose car, or cars; and that he voluntarily went upon the track behind, or in front of the flat car for the purpose of his own personal convenience, and not on any business in the line, or pursuit of his employment, as section foreman, and that he knew the danger to himself by reason of his position when injured, and that he voluntarily assumed that position at a time when his presence at the point of danger was not required by his employers, then under such circumstances, if you find they exist, the said Turner assumed the risk of injury, and plaintiff would not be entitled to recover.'
"Appellant also requested the trial court to charge the jury as follows, which was refused: `In addition to the main charge already given and read to you, you are instructed that if, under the circumstances existing at the time and place of the injury to Wm. Turner, the employés of the defendant operating the switch engine did not see Turner and did not expect, or anticipate his presence there, at the place where he was struck, and the bell of the engine was being rung at the time, then the defendant's servants owed the said Turner no further duty of keeping a lookout to discover and protect him from danger; and under such circumstances, if they exist, he received the injury, the defendant would not be liable in this suit.'
"Appellant requested the court to charge the jury in addition to the main charge as follows: `If from the evidence you believe that Wm. Turner saw the cars which were at the time being shoved or kicked in upon the elevator track, approaching toward the flat car, which was standing on the track, and that to avoid the danger of the impact of the moving cars with the flat car, he stepped from the track to a place where he would have been safe, but that he stepped upon loose dirt, which caused his foot to slip, thereby causing him to fall, and that his slipping and falling was the cause of his being caught under the wheels of the car and injured, then no recovery can be had against the defendant, and your verdict should be in defendant's favor.'
"Question 1. Did the trial court, under the evidence, err in restricting and confining, by its charge to the jury, the issue of assumed risk on the part of the deceased, Turner, to such risks and dangers of which he had actual knowledge?
"Question 2. Did the...
