In a charge to the jury a long statement of the contents of the pleadings can serve no useful purpose. It rather confuses than enlightens the jury, increases the costs of litigation, and swells to endless proportions the record here and in the court below. In the single half page of the seven and one-half pages thus occupied in this record, the issues the jury were to pass upon could have been clearly and fully stated. In the statement of facts, the repeated statements of one witness cover thirty pages, all of whose material testimony could easily have been put upon five pages. Two of the assignments of error are utterly useless, as one of them attacking the charge of the court, refers us for a statement of the grounds to the motion for new trial, and the other complains generally of the error in overruling that motion. The record is not a comely one.
On the trial in the court below, the plaintiff’s counsel, after opening the case, and after defendant’s counsel had addressed the court on the law of the case and declined to address the jury, was permitted, over defendant’s objection, again to address the jury on the facts. If the second speech was better than the first, or presented anything new, the court would doubtless have permitted defendant’s counsel to reply. Bo injury is shown to have resulted to appellant from the course pursued, and we cannot see that the court below abused the discretion necessarily and properly vested in it in such matters.
The only other assignment of error made in compliance with the statute and rule, is the refusal of the court to give the special charges requested by appellant. In the brief, the statement in support of this assignment, required by rule 31, is wholly defective; but as it presents the only question properly remaining in the record, it has not been deemed necessary to set aside the submission and require a new brief.
An object of the special charges was to possess the jury of the information needed to enable them to determine whether Jno. B. Scott was or was not a passenger on appellant’s train when he was fatally injured on February 17, 1884. He was riding in a tool-car in a train made up by the yard-master at Longview, in which there was improperly placed, near the engine, a passenger coach to be hauled *551to Marshall to be repaired. The car in which Scott was riding, and three others, were thrown from the track by the draw-head of the coach breaking and dropping down between the cross-ties. The stem of the draw-head was already cracked half through, but if sound it was subjected to strains in this instance not contemplated., in the construction of draw-heads for passenger coaches. Behind the coach in this train, and drawn by this draw-head, were nine loaded and six empty freight cars, besides the caboose, and that the yard-master in putting it there was guilty of culpable negligence cannot be questioned. Whether the injury to Scott would have happened if the draw-head had not been defective, and if it would not, whether appellant would be responsible for such defect in view of the improper use made of the passenger coach, are questions not involved in this appeal, as the jury under the proved facts were certainly authorized to believe that the sole cause of the injury was the negligence of the yard-master in making up such a train with the coach near the engine. If the testimony authorized such conclusion, it was certainly incumbent upon the court below to inform the jury what the appellant’s liability to Scott’s wife would then depend upon, and manifestly, if there were any facts making it a question whether Scott was or not a passenger, how that should be determined became pre-eminently important. If Scott was a regular passenger, appellant would be responsible for the negligence of the yard-master; but if he was a co-employee with the yard-master, engaged in a department of appellant’s service pertaining, as did the yard-master’s duties, to the operation of the railway, then the appellant was not responsible for the negligence of the yard-master, and appellee would not be entitled to recover. On the facts, whether Scott was a passenger or an employee could only be determined by the jury, as the testimony was conflicting; but the only test for decision of the question given by the court in its charge was certainly an improper one. The conductor of the train testified that he received and treated Scott as a passenger, and the court instructed the jury that the conductor’s so receiving and treating him would make him a passenger. If he and the yard-master were fellow-servants, nothing the conductor could do would change the relationship. There was error in this charge, and also in the court’s refusal to give substantially the first special charge requested by appellant. The judgment of the court below must, therefore, be reversed and the cause remanded.
Beveesed and demanded.
[Opinion delivered October 20, 1885.]