1. The first assignment of error complains of the refusal of the court to give special charge No. 3. Appellant does not comply with the rules as to this assignment, for the reason that it does not copy in its brief all of the charges requested, and hence this assignment will not be considered. However, we will state that there was no error in the court's refusing to give the requested charge.
2. In the second assignment of error, appellant complains of the eighth paragraph of the court's charge as being upon the weight of the evidence, in that it tells the jury that appellee fastened together only five cars. The charge is not subject to this criticism. Appellee had alleged that it was his duty to fasten together five or six cars; he testified that on this occasion there were only five cars. The court instructed the jury that if they found from the preponderance of the evidence that appellee fastened together five cars, etc. This certainly was not telling the jury that there were only five cars fastened together.
3. Appellant submits as propositions its third, fourth, and fifth assignments of error. These three assignments are followed by what purports to be a statement. The fourth and fifth assignments are not propositions within themselves. The only statement subjoined to these three assignments is as follows: "Statement. A portion of the statement under the first assignment and sixth assignment in this brief touching the duties of appellee and his Mexican helper." There are five pages of the statement under the first assignment and 15 pages under the sixth assignment. No reference is made to the pages of the brief, nor of the statement of facts. This is not a compliance with the rules, for which reason the third, fourth, and fifth assignments have not been considered by us.
4. The sixth assignment complains of *Page 913 the refusal of the court to peremptorily instruct a verdict for appellant. If appellee was guilty of contributory negligence as matter of law, or if, as matter of law, it must be held that he had assumed the risk, this instruction should have been given. The evidence shows that the accident occurred by reason of the cable being small, rusted, and worn, and fully establishes the allegations of negligence on the part of appellant in using such cable. This cable was worn and had broken on the end next to the car prior to this time, which fact was known to appellee; but the evidence shows that the end which broke had been put upon the drum, and the other end was used to fasten to the cars. Appellee testified that he knew of this change, and that he believed the cable to be safe thereafter, and that he did not know of its unsafe condition. From this evidence we cannot say, as a matter of law, that he assumed the risk. He knew that it was dangerous to go upon the track before the cars had passed over the knuckle, in the event the cable should break; but it was perfectly safe to be upon the track if the cable did not break. In going upon the track for the purpose of walking down the same and having another car ready, he was in the discharge of his duty; and if he did not know, or have reason to believe, that the cable was unsafe, we cannot say that his conduct in going upon the track was negligence; at least, under his testimony we cannot say so as a matter of law, but hold that the evidence was sufficient to raise this issue, and that the court properly submitted the same to the jury.
For the reasons herein stated, the Judgment of the trial court is affirmed.
Affirmed.