On Motion for Rehearing.
Counsel for appellee seem to have misapprehended the ruling made by this court. "We did not hold that witho'ut respect to tin-case made by the pleading and the testimony the violation by the trial court of article 1317 of the Revised Statutes required a reversal of the judgment. What we did hold was that the statute was mandatory, that to violate its mandate was error, and that, the violation having consisted of the assumption by the trial court in his charge -of the existence of a material controverted fact, the error could not be treated as harmless. Such an error can be regarded as 'harmless only when it is manifest from the record that the finding of the jury was not influenced by it. While, as stated in the opinion, we do not think it probable that the verdict was influenced by the error in the charge, we certainly cannot say that it affirmatively and clearly appears from the record that the jury were not influenced by it. Therefore, in disposing of the appeal, we must assume that the rights of appellant were prejudiced by the error. Railway Co. v. Johnson, 91 Tex. 572, 44 S. W. 1067; Railway Co. v. Greenlee, 62 Tex. 349; Hubby v Stokes, 22 Tex. 217.
In the opinion we cited Lumber Co. v. Thompson, 113 S. W. 565, decided by this court, as holding that the statute referred to is mandatory. Counsel say that that case “is the first and only case they have been able to find which unequivocally holds the statute to be mandatory.” At least as long ago as 1876 the Supreme Court, in an opinion by Chief Justice Roberts, declared the statute to be “mandatory and peremptory.” Railway Co. v. Murphy, 46 Tex. 367, 26 Am. Rep. 272. That such is its character we think has never since been questioned by any court in this state. In Railway Co. v. Scott, 30 Tex. Civ. App. 496, 71 S. W. 30, and Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838, cited by appellee, the court did not hold that the statute was not mandatory, but that it had not been violated by the trial court in the instructions given. In the Scott Case whether the plaintiff, a brakeman injured in a collision, had discharged his duty to flag an approaching train or not, seems to have been material with reference to whether he had been guilty of contributory negligence or not. The charge was attacked on the ground that in it the court had assumed that the plaintiff had flagged the train. In disposing of the contention the court said: “The entire charge makes it perfectly plain that whether plaintiff flagged the train, or whether his story of the transaction was true, was left to the jury untrammeled by any intimation from the court.” In the Lehmberg Case, in reply to an objection made to the charge on a like ground, the court said: “The charge does not assert the existence of any fact, but leaves everything for the determination of the jury.” In this case, as in those, the issue made by the evidence was left to the jury for determination. The difference is that the trial court in those cases, in the opinion of the appellate court, did not assume the truth as to the controverted fact to be as the plaintiff contended it was; while in this case, as we view it, the trial court did make such an assumption in his charge.
[7] It seems to be contended that it would be permissible in construing the instruction to substitute the word “if” for the word “when,” and read it as if it had been written thus: “If the plaintiff, S. M. Lynch, entered the employment of defendant, he assumed all the risks,” etc. The meaning of the two words, used in such a connection, it seems *584to us, is so different as to forbid such a substitution.
Tbe motion is overruled.