On Motion for Rehearing.
[3] We have concluded that the record does not warrant the overruling of the fourth assignment of error, as contended by appellant, upon the ground that the court’s main charge fully and affirmatively submitted the issues of contributory negligence. The main charge confined the finding of contributory negligence to “the manner in which he attempted to get down on the footboard in question.” The engine was moving backwards,. and the footboard of the tender was both wet and in a bent or slanting position; and the evidence tended to show that appel-lee knew such condition of the footboard when he attempted to take his position for lookout upon the footboard of the tender by descending from the rear of the tender. The special charge asked to have contributory negligence further measured to the effect by whether an ordinarily prudent person, knowing that the footboard was both slanting and wet, would “have attempted to descend from the tank while the train was in motion.!’ “The manner” in which appellee got down on the footboard could not be said to have covered the act of getting down on the foot-board in its stated condition at all, “while the train was in motion.” Under the decisions appellant was entitled to have all the facts constituting contributory negligence which the evidence tended to prove submitted in a charge to the jury. Reference: Railway Co. v. Samuels, 103 Tex. 64, 123 S. W. 123; Railway Co. v. Johnson, 55 Tex. Civ. App. 495, 118 S. W. 1117. There was reversible error; therefore the motion is granted, the judgment is reversed, and the cause remanded for another trial.