Denison Cotton Mill Co. v. McAmis , 1915 Tex. App. LEXIS 527 ( 1915 )

It not appearing in the record that the refusal to give the requested peremptory instruction was excepted to, we cannot consider an assignment complaining of such refusal. Therefore the first and second assignments of error are overruled. Railway Co. v. Wilson, 176 S.W. 619.

By the third assignment of error it is contended that the defendant pleaded assumed risk as a defense, and such plea is not denied by plaintiff, and for that reason the pleadings would not permit appellee to recover in the case. It has been decided that the defendant waived any right to have the plea taken as confessed where, without objection, there was a trial as though there was al, denial. Railway Co. v. Tomlinson,169 S.W. 217; Tabet Bros. Co. v. Higginbotham, 170 S.W. 118. And because of the ruling in these cases the assignment is overruled.

The fourth and fifth assignments of error are based on the action of the court in overruling the appellant's motion for judgment on the findings of the jury on special issues. The contention is that the effect of the findings is that appellee assumed the risk of danger incident to doing the work in the manner in which it was being done, and that he was guilty of contributory negligence that proximately caused his injuries. The jury answered that the appellee knew that his position on the roof in the performance of his duty at the time was one of danger, but next answered that appellee did not fail to exercise ordinary care for his own safety in undertaking to nail on the roofing material at the time and place and under the circumstances. They further answered that appellee did not know, at the time he undertook to nail down the roofing material, that other pieces of roofing material then on the building would likely be blown against him and injure him, nor was the fact that a piece of unrolled roofing material might be caught by the wind and blown against appellee as open and obvious to appellee's observation as it was to defendant's superintendent or foreman. It is not thought that the legal effect of the findings is to preclude recovery to appellee upon the ground of his contributory negligence or upon assumed risk, and therefore the court did not err in overruling the motion. The answer of the jury that:

"Plaintiff knew, or by the exercise of ordinary care in the performance of his duties must necessarily have known, that the position he assumed on said roof at the time was one of danger"

— was a finding of fact merely that appellee knew there was some danger in the position of sitting on the eaves of a roof that was between 15 and 20 feet above the concrete walk below in order to nail down roofing material. But the appellee's injuries were not caused from unskillfulness on his part in the manner of working at the place, nor from slipping or losing his balance, nor from any act done in his position on the edge of the roof while performing the work, nor from any condition of the roof at the place at which he was working, nor from the work itself of nailing on the roof. His falling from the roof was due to being forcibly struck in the back by a long piece of roofing that had been unrolled under direction of the foreman upon another portion of the roof and not weighted down being blown by the wind against him. And the jury found that it was reasonably necessary for appellee's safety that the pieces of roofing then unrolled on the building should have been weighted down or fastened, and that the failure of appellant's foreman to do so was negligence proximately causing the injury. And the jury further answered that appellee did not know of the negligence of the foreman in advance of his injury. The assignments of error mentioned, as well as the sixth assignment of error, raising in substance the same question, are overruled.

Answers of the jury to questions Nos. 11 and 16 are not conflicting, it is concluded, and assignment of error No. 7 is overruled.

According to the bill of exceptions made the basis of the eighth assignment of error the court, after reading over the verdict of the jury —

"stated to the jury that their findings were contradictory, and that the verdict would not be received, and for them to retire and again consider of their verdict, but if after retiring and considering of the same they were of the opinion that the answers were not contradictory, to return their said answers into court and the same would be received as their verdict in said cause."

The jury retired and further considered of their verdict, and thereafter returned their verdict into court, which was received by the court. The jury changed the finding 11 from the answer, "Yes" to the answer, "No." The court did not intimate or suggest the answers he deemed contradictory, and the jury were left free to do their own will. It is not thought there is presented reversible error.

In view of the court's positive instruction to the jury respecting the argument of counsel, the assignments of error complaining of the argument should, we think, be overruled.

The judgment is affirmed.