The court instructed the jury upon assumed risk, and conditioned the finding against the appellee upon whether or not a person of ordinary prudence would have undertaken the work and have continued in the service with a knowledge of the defect and danger. The charge follows the definition of assumed risk as given in article 6645, R.S. The appellant predicates error in the instruction upon the ground that the evidence shows that the plaintiff in assisting in carrying the tie in question to the stack was engaged in interstate commerce, within the meaning and terms of the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) and *Page 1178 assumed risk, as defined by the state statute, is not applicable. It is believed that the state law as to assumed risk governs the case, and that the objection to the court's charge may not avail in this case. According to the evidence, about 6 o'clock on the morning of April 8th a tie train of appellant was carried into Floyd, and the train crew, assisted by the section crew, unloaded the ties on the right of way. About 6 o'clock p. m. of the same day, and after the section crew had come in from their usual work on the section, the work of stacking the unloaded ties was begun. These ties were not being carried and put immediately into the track, but were being carried by hand and put into a stack near the toolhouse for convenience and to keep them in good shape for future use. The duty of the section crew was only to remove the ties from the right of way and stack them at a place from which they could be taken as thereafter required for use. The section foreman testified:
"These ties that were being stacked there were for the purpose of being used in the track, and they were afterwards used in the track of the Missouri, Kansas Texas Railway Company's McKinney branch."
The evidence as to use of appellant's road consists of the testimony of the witness Russell, as follows:
"I live in Greenville, and am local freight agent for the Missouri. Kansas Texas Railway Company of Texas, and was in April of last year. In April of last year, the Missouri, Kansas Texas Railway Company of Texas handled freight and passengers from Texas points to other states and from other states to Texas points over its McKinney branch."
It is concluded that the proof does not show that the appellee was injured while engaged in interstate commerce. The case of Railway Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L, Ed. 941, has similar facts, and, it is believed, is decisive of the question involved in the case here.
It is believed that the allegations in the petition are broad enough to admit the evidence of Dr. Hanchey, as complained of in the fifth assignment of error. Railway Co. v. McMannowitz, 70 Tex. 73, 8 S.W. 66.
The evidence complained of in the sixth, seventh, eighth, and ninth assignments of error was competent evidence in the case, and there was no error in admitting it.
In view of the entire record, it is believed that reversible error may not be predicated upon the admission of the evidence complained of in assignments of error numbered 10 to 17, inclusive.
If the testimony of the appellee and that of Dr. Smith as to the injury and extent of it be taken as establishing the extent of injury suffered by appellee, then it may not be said by this court that the jury were not authorized to find the amount of the verdict as compensation for the injury sustained.
The judgment is affirmed.