Missouri, O. & G. Ry. Co. of Texas v. Black , 1915 Tex. App. LEXIS 558 ( 1915 )

RASBURY, J.

Appellee sued appellant in the court below for damages for personal injuries inflicted by the alleged negligence of appellant; the precise grounds of negligence being, in substance, the failure of appellant to furnish an adequate number of fellow servants to perform the work in which ap-pellee was engaged at the time he was injured, the promise to furnish adequate help if appellee would proceed witn the work, and negligence in the method of doing the work with the number of fellow servants actually engaged thereat. Appellant specifically denied the negligence alleged, and charged that, if appellee was injured as alleged, such injuries resulted from the risks of his employment which in law he assumed.

The facts essential to a disposition of the appeal and supported by the testimony are, in substance, as follows: Due to a derailment on appellant’s line of railway in the city of Denison, it became necessary to remove two rails from a “coach” track and place them temporarily in the main line where the derailment occurred. A rail weighing between 500 and 600 pounds had been taken from the “coach” track for such purpose. Appellant’s foreman, who was in charge of and directing the work, instructed appellee and three other colaborers to lift the rail and transport it to and place it upon a push car about 60 feet distant in order that same might in turn be conveyed to the main track and substituted for a rail damaged by the derailment. When the order was given appellee remonstrated, saying: “These rails are too heavy for us four men, Cap.” The foreman replied: “Load the rails boys; I am in a hurry to put them in the main line.” Whereupon appellee and his colaborers undertook to lift the rail for the purpose directed, and in the attempt appel-lee was injured as claimed, and concerning which no dispute arises on this appeal. Ap-pellee knew when he attempted to lift the rail that the number of men was inadequate in view of the weight of the rail. The reason he attempted it, in his own words, is because the foreman looked like he was in a-“stretch,” meaning, we assume, under strain or hurry to complete the work. The work was improperly attempted, with four men, but there was a method by which four men could hare safely performed the same, had the foreman instructed them in that particular, which he negligently failed to dp.

There was jury trial and verdict upon special issues, whereby the jury found that six men were necessary to handle the rail in the manner in which it was handled, and that appellant failed to exercise ordinary care to secure such number; that appellee knew that four men were insufficient to perform the work, and that the proximate cause of appellee’s injuries was appellant’s failure to furnish sufficient men to do the work, but that the work could have been safely done by four men with proper instructions from the foreman. The jury also found that there was an immediate necessity for the use of said rails in the main line, and that appellee would not have undertaken to load same on the push car if appellant’s foreman had not informed him of such necessity, and that ap-pellee did not assume the risk of the improper instruction of appellant’s foreman. Upon the findings, the substance of which we have stated, judgment was by the court rendered for appellee, and from which judgment appellant appeals.

The error first assigned in the brief is that “the court erred in refusing to grant the motion of defendant to enter judgment in its favor on the jury’s finding, and in giving judgment for plaintiff,” for the reason that by the undisputed facts appellant was not liable in law. The second ground of error assigned is that “the court erred in rendering judgment in favor of plaintiff on the findings of the jury,” because insufficient, conflicting, and contradictory, and because the evidence was insufficient to support such findings. In limine counsel for appellee objects to our consideration of 'both of these assignments. As we have said, the case was submitted to the jury upon special issues. The two assignments present the same question in a different manner, the first complaining of the refusal of the court to sustain appellant’s motion after verdict to enter judgment for it, and the second complaining that the special verdict and the evidence were insufficient to sustain the judgment entered for appellee. While these identical matters were set out in the motion for new trial as grounds therefor, the error assigned is the action of the court before filing of the morion, and not the action of the court on the motion itself, which is the objection urged by appellee. This question of practice thus raised, while subject to the criticism of being technical, is a well-settled rule. Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485; Weinstein v. Acme Steam Eaundry, 166 S. W. 126. In the first case cited the court holds that, “when a ease has been submitted to a jury on special issues, and the findings of the jury entitle the plaintiff to a judgment, and the trial court overrules a motion to set aside the verdict but the defendant does not, on appeal, assign as error the action of the court in overruling the motion for a new trial,” he cannot complain of the judgment against him on the ground that certain findings of the jury are not supported by testimony. The assignments which are objected to do not, as we have said, complain of the action of the court in overruling the motion for a new trial, but complain of the action of the court in entering judgment for appel-lee; the ground assigned being the insufficiency of the testimony thus coming within the rule stated. While the second assignment urged also asserts that the judgment should not have been entered, for the reason that the answers of the jury to the special issues were conflicting and contradictory, an examination of the findings discloses that, if such conflict and contradiction exists, it is due to a lack of testimony to support same, and not to any conflict or contradiction inherent in the answers, and which fact would yet bring them within the rule.

[1] The third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments bring into review portions of the court’s general charge, or the action of the court in giving or refusing to give certain special charges. Counsel for appellee objects to a consideration of these assignments on the ground that the objections to such charges are not shown to have been preserved by bill of exceptions in compliance with the amendment to the practice acts enacted at the regular session of the Thirty-Third Legislature. The record supports the claim, and, since we are without discretion in the matter, the objections will be sustained, and the assignments overruled.

Finding no reversible error in the record, the judgment is affirmed.

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