(concurring specially).
There was a large recovery. I think there should be a new trial because of the erroneous admission over appropriate objections and exception of testimony as to the prospective earnings of the injured boy. The boy was not a jockey, but only an apprentice. A witness who professed to be experienced was allowed to testify in answer to a question as to what the boy would probably earn during his first year as a jockey: “Well, I thought he would average anywhere from $7,000 to $8,000 per year after he was broken in. I figure he would make that.” The witness explained that this included the salary paid him, his upkeep, and his winnings for each horse he rode. The last item is based on the fact that a jockey gets a premium when his horse wins. The witness afterwards put his estimate of Blanchard’s earnings as high as $10,000 per year after the first year of jockeying. It is the height of speculation to testify as to what anyone will win on horse races. While it might properly be proven what a jockey usually receives with reasonable certainty in his business, and that this boy had chosen to be one and apparently had qualities as such, a witness should not be allowed to figure out and to testify what in his opinion the particular boy would likely earn. It is the function of the jury to make such estimates. See United States v. Spaulding, 293 U.S. 498, 499, 55 S.Ct. 273, 79 L. Ed. 617; Hamilton v. United States (C.C.A.) 73 F.(2d) 357; United States v. Provost (C.C.A.) 75 F.(2d) 190.
But I think the court below was right in holding that there was at least a jury issue as to the liability of the Texas Breeders & Racing Association, Inc.., for the wounding of Blanchard by Eaves. Char-ale, an officer of the association, testified that Eaves was its paid employee to keep decorum and protect the property of the association and of the owners of the race horses; that the association employed no jockeys but they were employed by the owners of the horses. “There were a great many boys there, and iLwas his duty to see that these boys behaved themselves properly and to see that they went to bed at certain times at night. And it was his duty to look after those boys, to keep in contact with them, and see that they behaved themselves, and it was his business to be around and to carry firearms.” The boys were the business guests of the association and were to an extent in the guardianship of this watchman. They were entitled to care that the physical premises be safe, and that a proper guardian be in charge of them. This relationship is important, and is not to be overlooked. Eaves on the night in question was on duty wearing his pistol, and in pursuance of his employment was visiting the quarters of the boys shortly before their hour for retirement. The loaded pistol furnished him by his employer was a highly dangerous instrumentality and to be kept with a care proportioned to its danger. Especial*385ly was there a duty neither by act nor by negligence to injure with it one of these boys for whose protection in part he had the weapon. It seems to me that in the special circumstances a willful injury to one of them might have rendered the association liable. Compare Bracken v. Cato (C.C.A.) 54 F.(2d) 457. But there was here no willful act but a negligently dangerous handling of a loaded pistol which Eaves, representing his employer, should have kept safely. He did not intend to fire it. He only intended to “twirl” it with his finger in the trigger guard. The firing was unintentional but it was negligent, lie should have put the pistol in the scabbard. As to these boys who were the guests of the association and put under the care of Eaves by it, the association is bound by his want of caution in handling the gun with which it armed him. I see no such distinct turning aside from his employment as watchman and caretaker of persons and property as to relieve his employer of responsibility for ,his negligence. The jury might properly so find, as they did under proper instructions of the court. The case of Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L.R.A.(N.S.) 367, relied on in the majority opinion, recognizes fully the special responsibility of a master for dangerous instrumentalities put into a servant’s hands, but holds that the air hose there involved was not such, and moreover that the intentional misuse of it was not negligence in its keeping but was a clear departure from the servant’s employment and the commission by him of a willful and violent tort. The last conclusion is supported by Davis, Director General, v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299. The case of American Ry. Express Co. v. Tait, 211 Ala. 348, 100 So. 328, resembles this in that it involved the accidental discharge of a pistol by an employee who was required to have one. But the court recognized fully the master’s responsibility touching dangerous instrumentalities, and expressly held the pistol to be such, but held also that the responsibility was only for the pistol which the express company had furnished and not for the employee’s own pistol which had caused the injury. The injured person was also not in the care of the express messenger. Crawford v. Rice (C.C.A.) 36 F.(2d) 199, involving an elevator, does not seem to resemble this case at all. None of the cases compels the conclusion that an employer who sets a watchman with a pistol to care for boys is not liable if the watchman so recklessly handles the pistol while on duty as to shoot one of the boys he was to care for. If Eaves had thus shot one of the race horses, would not the association have been liable?
I concur in the judgment of reversal, but only for the reason first above stated.