Barnes v. Honey Grove Natatorium Co. ( 1921 )

As we view the record, the contention made that the finding of the jury that appellant's son was guilty of contributory negligence was without the support of testimony should be overruled. Testimony referred to in the statement above was all there was which can be said to have tended to show contributory negligence on the part of appellant's son. The trial court instructed the jury that negligence was a failure to use "ordinary care," and that ordinary care meant such care "as an ordinarily careful and prudent person would commonly exercise under the same or similar circumstances." He then told them that whether appellant's son was guilty of contributory negligence or not depended on whether he did or omitted to do something which amounted to negligence which, concurring with negligence on the part of the defendants was a proximate cause of his death. It will be noted the instructions were without reference to the age of the boy, but were such as were applicable to an adult. No complaint on that ground, however, is made of them on this appeal. Treating the case as one in which the ordinary rule with reference to contributory negligence was applicable, it is plain, we think, that the jury were warranted in finding that appellant's son was guilty of such negligence. They had a right to conclude that the boy discovered during the half hour he was in the pool before he had the conversation with the witness Eversole that the water therein became gradually deeper from the south end to the north end of the pool, and knew and realized the danger to a person who was not a good swimmer using it, and of the danger even to an expert swimmer using it after he discovered he was cramping, and to conclude that an ordinarily prudent person under those circumstances would not have gone back into the pool as the boy did after he had the conversation with the witness Eversole referred to in said statement. In this connection we will say that we think the contention made that the court erred in admitting the testimony of said Eversole referred to in said statement is without merit. The objection to the testimony was that it was "incompetent, irrelevant, and immaterial." Clearly it was competent, relevant, and material on the issue as to whether appellant's son exercised the care an ordinarily prudent person would have used under the circumstances of the case.

It will be seen by reference to testimony referred to in the statement above that it appeared defendants had exercised some care for the safety of persons who used the pool. Therefore we do not think a finding that the defendants were guilty of "gross" negligence would have been warranted. But, if we thought otherwise, and the jury, on an issue submitted to them, had found them to be guilty of such negligence, it would not be a reason why the judgment should be set aside. The doctrine of comparative negligence is recognized in some jurisdictions. But it is not recognized as law in this state. The holding of the Court of Civil Appeals to the contrary in McDonald v. Railway Co., 21 S.W. 774, cited by appellant, was repudiated by the Supreme Court when that case was before it on a writ of error (86 Tex. 1, 22 S.W. 939, 40 Am. St. Rep. 803), and has since been repeatedly repudiated by the courts of this state. Railway Co. v. Mills, 49 Tex. Civ. App. 349, 108 S.W. 480; Railway Co. v. Kuehn,11 Tex. Civ. App. 21, 31 S.W. 322; Wilcox v. Railway Co.,11 Tex. Civ. App. 487, 33 S.W. 379; Turner v. Railway Co., 30 S.W. 253; Railway Co. v. Eason, 35 S.W. 208; Railway Co. v. Rodgers, 89 Tex. 675,36 S.W. 243; Railway Co. v. Christian, 8 Tex. Civ. App. 246, 27 S.W. 932.

Assignments presenting other questions are overruled. If the trial court erred in the respects complained of in those assignments, the errors were harmless when considered with reference to the rulings made on the contentions we have discussed.

The judgment is affirmed.