¶1(dissenting).
¶2It will be remembered in this case that the trial court instructed a verdict for the defendants. Therefore, if there is any evidence tending to show that either of the defendants was obligated to furnish doctor’s services and hospital service, then the trial court erred in instructing a verdict for the defendants. While L. N. Bassett, vice president and general manager of the Wichita Falls & Southern Railway Company, was on' the stand, he testified:
“As to the arrangement between the Southern and its employees with regard to medical treatment and hospital care, we have a fundi that is secured by deducting from the salary and wages of employees on the basis of 50⅜ for a monthly salary up to $100, and $1.00 from the salary or wages of employees who earn more than $100 or more. This fund is' used to pay doctor and hospital fees of employees that get sick or injured, in the service.
“As to hospital care, the hospital is paid by the Wichita Falls & Southern Railway Company where employees are injured in the service, and they are paid by the railroad company when the employee is sick, he is instructed to go to the hospital, by the doctor in charge of the railroad.
“There was a letter put out by me some three or four years ago just outlining briefly the policy of the railroad company in paying the expenses of the employees who was sick or injured in the service. It was sent to the heads of the various departments.
*426“I will get you a copy of it if I can locate it, we have not been able yet to get a copy. We beep those things in the flies, but occasionally they get misplaced. I put it out some three or four years ago.
“There is not a separate association covering the hospital' association, financed by the railroad company, and any shortage is made up by the railroad, there is not any separate hospital association, just handle that our-self.”
¶3It would appear from this testimony that the railroad company collected this fund from the employees, and that it was under obligation by virtue of such fact to furnish medical and hospital care. It is immaterial whether or not other testimony contradicted the testimony of Mr. Bassett, because, unless the testimony shows that the furnishing of the medical treatment and hospital care was a mere charity and not a part of the duty of the employer, the court could not instruct a verdict for the defendants.
¶4■ It is the judgment of the writer that the motion for new trial should be granted and the cause remanded to the trial court for new trial. The writer is inclined to believe that this case comes more nearly in point to the case of Texas & Pacific Coal Co. v. Connaughten, 20 Tex. Civ. App. 642, 50 S. W. 173, writ of error refused.