The issue of assumed risk was made on the fact of the footboard's being slanting and bent. Upon the issue of assumed risk the court's charge to the jury, as far as is necessary to here state, was: "If you shall find *Page 666 that a person of ordinary care would have continued in the service of the defendant with the knowledge of the defect, if any, and the danger, if any," etc. The appellant asked a special charge, which was refused, to the effect that appellee would be precluded by assumed risk upon the finding that an ordinarily prudent person would not have continued to use the board, knowing its defective condition and the danger incident to its use. It is the contention of appellant that it was misleading to the jury, and erroneous, to make the test of assumed risk, under the facts, to depend upon whether an ordinarily prudent person "would have continued in the service" with knowledge of the defect and danger, rather than "have attempted to use the board" with knowledge of the defect and danger. The difference between the two charges is in directness of expression rather than in meaning. The court's charge is in the language of the statute. The jury, as men of ordinary mind, would only reasonably have understood that "to continue in the service with the knowledge of the defect and danger" meant and was confined to a continuation of the use of the particular appliance in suit furnished by the company to effectuate the service. There is no reversible error presented. As we think the other objections to the charge do not present error, the first, second, and third assignments are overruled. The court, in his main charge, fully and affirmatively submitted the issue of contributory negligence, and the fourth assignment is overruled.
The fifth and sixth assignments, complaining of certain portions of the court's charge being on the weight of evidence, are overruled.
Under the evidence in the case, it was a question of fact for the decision of the jury as to whether appellee was precluded by assumed risk, and their finding is sustained. The seventh assignment therefore is overruled.
The eighth and ninth assignments complain that the verdict is excessive. After a careful consideration of the evidence, we have concluded that the judgment of the jury and the trial court in respect to the amount of the award and the effect of the injuries should not be disturbed.
The judgment is affirmed.
On Motion for Rehearing. 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 appellee 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 footboard 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. 54, 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.