Substantially, only two questions appear to be presented by the record in this case: (i) Is a hand car within the meaning of the provisions of section I of the Texas statute? (2) Was the deceased, F. S. Smith, such an employe of the defendant that, under the terms of section 1 of the act, his representatives can recover for his death, if caused by the negligence of the men working under him ?

Without rehearsing or attempting to extend or elaborate the reasoning that we find in reported cases infra, we content ourselves with expressing the view that the fair construction of the Texas statute requires that the first question stated above be answered in tlie affirmative. We cite, with approval both of its decision and of the reasoning contained in the opinion, the case of Benson v. Railroad Co. (Minn.) 77 N. W. 798, 74 Am. St. Rep. 444; also the decision of the supreme court of Alabama in Railroad Co. v. Crocker, 11 South. 264. And we concur in the suggestion of counsel for the defendants in error that this construction of the statute receives substantial support from the decision of the court of civil appeals of Texas in the case of Railroad Co. v. Baker, 58 S W. 965.

We come to the second question. As we understand it, the contention of the plaintiff in error is that by reason of the fact that under section 2 of the Texas law the deceased was a vice principal of the plaintiff in error, and not a fellow servant with his co-etnployés, had his injurias not resulted in his death he could not have recovered on account of the negligence of these co-employés. While not distinctly so expressed, the argument seems to be that, from the fact that the deceased had the authority to choose his “subordinates in the extra-gang force over which he was foreman, he assumed the risk of any injury resulting to himself from the negligence of any one of these 15 or 20 men under his charge, and that, as against him, evidence of such negligence on their part is evidence of contributory negligence on his part, such as would bar him from recovery for injuries not resulting in his death, and therefore would bar the defendants in error from recovery in this case. If such is not the purpose and effect of the argument, we arc not able to see its application. If such is its purpose and effect, it does not appear to us to find any support in the authorities cited, and seems to us to be manifestly unsound. A careful consideration of the provisions of the present statute given in the statement of the case, and of the precedent legislation on that'subject set out in the brief of the plaintiff in error, which we do not deem it *732necessary, to quote, does not lead us to conclude that the other sections of the statute should receive a construction that would bar the foreman of a gang from the protection afforded by such section i.

We do not deem it necessary to notice the other matters suggested in the argument by counsel for the plaintiff in error, further than to say that they do not commend themselves to us as having sufficient force to warrant us in setting aside the judgment of the circuit court.

We conclude that that judgment was right, and it is therefore affirmed.

PARDEE, Circuit Judge, dissents.