contract, thus based on offer and acceptance, was initiated, and the parties entered upon its performance. What happened afterward, although almost immediately, relates to the breach of the contract, and that is the essence of the plaintiff's complaint. The substance of the defense is a denial of the relationship upon which the plaintiff relies. The testimony amply sustains the findings of the court in favor of the plaintiff. The judgment is affirmed. route the train was derailed and wrecked and plaintiff was severely injured. A wrecker brought a claim agent to the scene of the wreck, who obtained plaintiff's release of damages for twenty dollars. Subsequently, however, plaintiff refused to accept the twenty dollars and brought suit for damages. There was a judgment for the plaintiff which was affirmed on appeal, the court holding that the plaintiff had made a prima facie case which the evidence of the defendant had failed to overthrow. It was further held that the plaintiff was a passenger, the payment of fare or possession of a ticket or pass, not being absolutely essential to the creation of the relation of passenger and carrier, so far as it related to the carrier's liability for injuries to a passenger and that it was within the apparent authority of the conductor to allow plaintiff to ride thereon and that plaintiff in good faith accepted the transportation. It was also held that the release of damages was properly set aside as having been executed by plaintiff when not in his normal mind as a result of the injuries received. St. Louis & S. F. R. Co. v. Nichols, 39 Okla. 522, 136 Pac. 159 (1913). A. O. C. ALLEN v. BLAND. [COURT OF CIVIL APPEALS OF TEXAS, MAY 23, 1914.] Tex. Civ. App. —, 168 S. W. 35. 1. Automobiles-Operation by Child-Negligence-Evidence. Evidence that an eleven-year-old boy, whose father provided him for his exclusive use with a heavy, powerful automobile from the seat of which he could barely see over the steering wheel, had on two occasions met witness on the highway and failed and refused to yield him any of the road, is admissible in an action against the father for injuries inflicted by his son, where the recklessness, carelessness and incompetency of the child was raised by the pleadings, and evidence had been given by the defendant tending to show that the child was a careful driver. 2. Evidence-Personal Injuries-Injury to Nervous System-Pleading. Evidence that an injury to the nervous system was caused by an accident is admissible under an allegation of serious bodily injury causing physical and mental suffering. 3. Parent and Child-Negligence of Child-Use of Automobile-Liability. A parent who placed a heavy, powerful automobile at the exclusive disposal of his eleven-year-old son is answerable for its negligent operation by the latter, where the consequences of placing such an agency in the hands of a child might have been reasonably anticipated. 4. Automobiles-Dangerous Agency. An automobile when operated by a careful and competent driver is not per se a dangerous agency. 5. Parent and Child-Negligence of Child-Use of Automobile-Liability. A father who provides a heavy, powerful automobile for exclusive use in a CASE NOTE. Liability of Parent for Negligence of I. DRIVING AUTOMOBILE, 300-304. A. OWNED BY PARENT, 300-301. B. KEPT FOR USE OF FAMILY, C. LEARNING TO OPERATE AUTO- II. USE OF GUN, 304-309. A. SHOOTING GUEST OF PARENT, B. SHOOTING CUSTOMER IN PAWN C. SHOOTING DOG, 306-307. D. SHOOTING SERVANT WITH AIR E. BOY KNOWN TO BE CARELESS, IV. DRIVING EXPRESS WAGON IN FA- V. DRIVING Cow ESCAPED FROM LOT, 311-312. VI. FASTENING ROPE ACROSS HIGHWAY, 312-313. VII. EVIDENCE OF AUTHORITY FROM Cross-references. Injuries caused by children operating automobiles, see 4 N. C. C. A. 34-37; liability for tort generally, see Thibodeau v. Cheff, 1 N. C. C. A. 378, and Fanton v. Byrum, 1 N. C. C. A. 812; liability for injuries growing out of use of firearms in hands of minor children, see Johnson v. Glidden, 5 Am. Neg. Rep. 97; Taylor v. Seil, 15 Am. Neg. Rep. 465; liability for alleged negligence of son in leaving broken buggy near roadside where it frightened plain San Pedro, Cal., the plaintiff attempted to board the steamer and convey upon it her trunk, but that she carelessly and negligently failed to arrive at the vessel until its gang plank had been withdrawn and it had swung away from its dock; and that in order to get her baggage aboard the plaintiff carelessly and negligently, through her agents and employees, called for a rope from the steamer, and, having attached it to the trunk, directed it to be hauled aboard, and that by reason of the careless way in which the rope was tied it became detached and the trunk fell into the water. It is further stated that the act of the plaintiff described was against the wishes and objections of the defendant, and that it was a custom of the defendant, well known to the plaintiff, to keep an employee at the steamship previous to the date of sailing for the purpose of checking baggage of passengers, but that she failed and neglected to check her trunk or to buy a ticket to her destination. Except that defendant is a common carrier owning the steamer in question, and that she became a passenger thereon, the plaintiff denies all the allegations of the answer. The court, as a result of a trial without a jury, made findings of fact and conclusions of law in favor of the plaintiff. From the resulting judgment the defendant appeals. BURNETT, J. (after stating the facts as above). The principal contention of the defendant is that the allegation of the complaint, to the effect that the plaintiff became a passenger on the defendant's steamer Roanoke, is a statement of a conclusion of law, and not sufficient in that respect to support a cause of action. The only precedent cited in support of the proposition is Fremont, E. & M. Val. R. Co. v. Hagblad, 72 Neb. 773, 101 N. W. 1033, 106 N. W. 1041, 4 L. R. A. (N. S.) 254, 9 Anu. that plaintiff went to the station about thirty minutes before the train was due according to schedule, and applied for a ticket but failed to get one, the ticket office being closed. When the train arrived she offered to board it, but was refused admittance by the train man standing at the steps of the coach, and was directed by him to go back to the ticket office for a ticket, being told that she had plenty of time. Some one in charge of the ticket office told her to go and get on the train and she attempted to do so as it was slowly moving out of the station. Defendant's claim agent who stood on the step of the coach told her to get on and that he would help her, but she fell in the attempt and sustained the injuries complained of. Defendant contended that the plaintiff was not a passenger and that the servants of the company owed her no duty save the negative one of doing nothing to injure her while she was attempting to board the train. There was a judgment for plaintiff, and upon appeal this was affirmed, it being held under the statutes of the state that a person who goes to the station of a railway company for the purpose of becoming a passenger, but is given no opportunity to purchase a ticket, has a right to board the train as a passenger without a ticket; that the evidence was sufficient to sustain a finding that plaintiff was not given an Cas. 1096. This was an action for personal injuries to an individual, who stated that he had purchased a ticket entitling him to safe transportation on the defendant's train between certain points, and that he received the injuries while a passenger on the defendant's premises. The complaint was challenged, not only by demurrer, but by every other method, to the end of the case. Under these circumstances the court of last resort held that the allegation stated a mere conclusion of law. In the instant case, however, no objection appears to have been taken to the complaint by demurrer or motion, or by objection on that point at the trial. Conceding that the allegation of the relation of passenger and carrier is essential to the relief sought in this case, we still must hold that, in the absence of objection by demurrer, the complaint must be held good after the findings are made; they being equivalent to a verdict. Davis v. Wait, 12 Ore. 425, 8 Pac. 356; Drake v. Sworts, 24 Ore. 198, 33 Pac. 563; Baker City v. Murphy, 30 Ore. 405, 42 Pac. 133, 35 L. R. A. 88; Fowler v. Phoenix Ins. Co., 35 Ore. 559, 57 Pac. 421; Currey v. Butcher, 37 Ore. 380, 61 Pac. 631; McCall v. Porter, 42 Ore. 49, 70 Pac. 820, 71 Pac. 976; Bade v. Hibberd, 50 Ore. 501, 93 Pac. 364; Templeton v. Lloyd, 59 Ore. 52, 57, 115 Pac. 1068. The action, however, is not for personal injury to the passenger. The essence of the complaint is a claim of damages for breach of the contract to carry the baggage of the plaintiff from San Pedro to San Diego. The cause of action is not affected by the circumstance that the contract to carry baggage is co-operant with the relation of passenger and carrier. The gist of the complaint is found in the allegation: "That as a consideration of plaintiff becoming a passenger on said steamer, and paying the usual and customary fare, the defendant agreed and promised to opportunity to purchase a ticket, and that she was not negligent in attempting to board the moving train. St. Louis, I. M. & S. R. Co. v. Green, 110 Ark. 232 (1913). III. Intent and Ability to Pay Fare. It appeared that plaintiff's decedent while riding on defendant's passenger train was thrown off by the porter and was later found unconscious on the track. It was contended that he had boarded the train without a ticket, had paid no fare and was therefore not a passenger. There was a judgment for plaintiff in the sum of $2,000. Upon appeal this was affirmed on condition of remitting $750, the court holding that the evidence tended to show that Plaintiff, a boy about fifteen years old, having been skating with several carry without delay and safely said baggage, and to deliver the same in good condition to plaintiff at San Diego, Cal." Here is a complete statement of an executory contract, of which becoming a passenger is stated as one element of the consideration. In view of the findings of the court, which in numerous cases not necessary to cite here we have heretofore considered as equivalent to the verdict of a jury, the controlling question presented is whether or not there is any evidence to justify such a verdict. The substance of the testimony is that the plaintiff arrived at San Pedro on the steamer Rose City, en route to San Diego. Arriving at the former port, she found the Roanoke berthed at the same dock and due to sail in a few hours. Concluding that she could arrive at her destination much sooner by taking passage on the Roanoke, she applied at the steamer office on the dock for the purpose of buying a ticket. She went there four times for that purpose during the day, but each time found the office closed. She states that she was informed by a man on the dock, who afterwards proved to be the district freight and passenger agent of the defendant, that she could buy her ticket aboard the ship. She, however, applied again at the office, and found it open, but no one in attendance. She and a lady friend went again aboard the Rose City, lying adjacent to the Roanoke, and while waiting there they heard the whistle of the latter vessel, indicating that she was about to sail. In company with the captain of the Rose City, the two ladies ran hastily down the dock to the Roanoke and found the gang plank drawn aboard, the bow lines cast off, and the bow of the steamer being warped out into the channel by a stern line made fast to the dock. Rushing up to the vessel, the two ladies were helped aboard by the steward of the Roanoke. About this time two other men, pre companions, upon returning homeward, reached the end of defendant's street car line, where there was a car ready to make the return trip. There was evidence on plaintiff's part that his companion asked the conductor for a free ride to which the latter made no reply; that the boys then boarded the car, whereupon the conductor ran towards them with his hands above his head and said, "Get off, or I will kick you off," that they immediately started and jumped off; that the conductor kicked at them; that plaintiff was frightened thereby and ran around the rear of the car, whereupon the conductor reached out of the rear window and grabbed at him, by which he be came still more frightened and, jumping away, was struck by a car passing on the other track. He testified that he had a nickel and two car tickets and was ready to pay his fare if he could not get a free ride. The conductor disputed this testimony and denied kicking or grabbing at the plaintiff. The jury returned a special verdict for the plaintiff, awarding damages in the sum of $5,000. The court amended this verdict by changing the answer to the question as to whether the conductor was acting within the scope of his employment at the time of committing the assault upon plaintiff, from "No" to "Yes," and entered judgment for plaintiff thereon. Upon appeal this |