According to the facts found by the Court of Civil Appeals, defendant in error, a boy 15 years of age, *Page 521 while swinging from a car in a moving freight train of plaintiff in error, was assaulted and struck by a brakeman upon the train. He recovered the judgment from which this writ of error is prosecuted for the injury thus inflicted. The principal question in the case is whether or not plaintiff in error is responsible for the act of its brakeman, and the decision of it depends upon the answer to the inquiry whether or not such act was within the scope of the brakeman's authority. The boy was a trespasser on the train, in company with other boys who had persisted in getting upon it in spite of the efforts of trainmen to keep them off, and the facts are such as to justify the conclusion that the assault, if committed, was made for the purpose of making Rutherford leave the car. The transaction occurred in March, 1899.
There was evidence tending to show that the rules of the company in force for many years previous made it the duty of conductors alone to eject trespassers from trains and forbade brakeman to do so except as assistants to and under the supervision of their conductors, when ordered by the latter.
On May 8, 1897, May 29, 1897, and February 7, 1898, circulars were issued by proper authority to conductors, stating that many suits were being filed against the company for alleged forcible ejection of plaintiffs from trains, and instructing that no members of a crew, except the conductor, had authority, by word or act, to eject any person found riding upon such a train, and giving to conductors minute directions how to proceed in expelling trespassers, authorizing them to call upon brakemen to assist in doing so, and instructing that brakemen, discovering persons wrongfully on a train, should, while the train was standing, request them to leave it, and, upon their refusal to do so, report such facts to the conductor, but forbidding them, under any circumstances, to eject persons by threats or personal violence, and forbidding any employe to request or force any person to leave the train while in motion, and requiring conductors to make all employes under their control acquainted with the contents of such circulars. There was evidence, also, that similar instructions had been issued from time to time before the dates given.
The effort of plaintiff was to show authority in brakemen to eject trespassers, notwithstanding these rules, by proving their habit of doing so with the knowledge and acquiescence of the officers of the company. Upon this issue, the seventh paragraph of the charge to the jury was as follows: "7. If you believe from the evidence that the custom with the conductors of defendant's trains has been for years to delegate to brakemen authority to eject trespassers without first reporting to them the presence of the trespassers and that defendant's general officers knew of such custom and retained such conductors and brakemen in its employment, you may assume that such printed instructions have been waived by defendant and that such constructions and practice of its rule have been acquiesced in and approved by the defendant." The writ of error was granted upon the *Page 522 ground therein stated that this instruction was upon the weight of evidence. Upon an examination of the briefs filed in the Court of Civil Appeals, we find that this point was not presented either in the assignment of error based upon the seventh paragraph or by any proposition under it. As specific objections were made to the instruction in the briefs, those not so specified were waived, and this court can only review the action of the Court of Civil Appeals upon the points properly presented to it. The objections there urged to the charge were, first, that there was no allegation in the petition of such a custom as that referred to in the charge; second, that there was no evidence that any conductor delegated to brakemen authority to eject trespassers contrary to the published rules; third, that there was no evidence that any such custom was known to the officers of the company, or that conductors and brakemen, after having practiced such custom, were kept in the service by such officers with knowledge of such practice; fourth, that there was no evidence of the existence of any of such facts since May 8, 1897, the date of the first specific rule in evidence; fifth, there was no evidence that the conductor on the train from which plaintiff was ejected ever delegated to the brakeman authority to eject trespassers.
In reference to the first objection, it is enough to say that the petition alleged that the brakeman was authorized to eject trespassers and acted within the scope of his authority in attempting to expel plaintiff, and that the evidence referred to in the charge was admissible upon the issue thus raised. Such evidence might go to the extent of proving that the rules were mere pretexts and that in practice brakemen were in fact empowered by defendant to exercise such authority as that in question.
There was direct evidence that it was the custom and practice of conductors to delegate to brakemen the authority to eject trespassers, and that the rule and custom was for brakemen to exercise such powers both before and since the issuance of the orders in evidence, and that the superintendent and officers of the company knew of it; and there was circumstantial evidence from which the jury could have inferred that such employes were retained in the service after such officers knew of such practice. This meets the second, third, and fourth objections.
The fifth objection does not apply to the charge under consideration, which has no reference to the fact of authority specially delegated to the brakeman whose act was under investigation, but refers to the authority intrusted to brakemen generally. If such power could be found to be vested in brakemen generally, it would be immaterial that it was not specially given to this one.
We thus reach the conclusion that none of the objections to the charge presented in the Court of Civil Appeals are well founded. It will be observed that such objections do not question its accuracy as a legal proposition or complain that it is upon the weight of evidence, *Page 523 and hence, in disposing of the case, we are not to be understood as approving it. This was the only ground stated in the application which this court, in acting upon it, thought showed error in the judgment, and it is unnecessary to discuss the others.
Affirmed.