Fults v. Waterman Lumber Co.

The appellant insists that the answers of the jury to special issues Nos. 9 and 4 are contradictory, and do not support the judgment entered for the defendant. In the ninth question the jury were asked to state the amount that plaintiff had been damaged as the result of his injuries "on account of the defendant's negligence, if any." The jury answered, "Five thousand dollars." The jury made the express and affirmative finding in the fourth question that the lumber company was not guilty of negligence causing the injury; and in the other findings of the jury, taken as a whole, it appeared that the jury meant to say that the injury to the plaintiff was the proximate result of the greasy floor, but that no fault or negligence was chargeable in the occurrence either to the plaintiff or to the defendant company, and in the light of these findings it reasonably appears that the trial court regarded the ninth finding as unnecessary and merely as a surplusage, finding that the plaintiff was damaged in the sum mentioned. We do not feel authorized on appeal to say that the court erred, and therefore the first, second, third, and fourth assignments of error are overruled.

The fifth assignment predicates error on the part of the court in refusing to set aside the answer of the jury to question No. 4 because it was a finding contrary to the evidence. The plaintiff testified that the greasy condition of the floor caused him to slip and fall, and that where he fell there was some fresh oil and some old oil on the floor, and that the floor looked dingy with grease and was covered over with dust and shavings. In the operation of the planing machines the iron bearings had to be oiled. The shavings came from the lumber being dressed. According to the plaintiff, it was the night watchman's duty to do the cleaning up, and "they are supposed to clean all shavings and the platform every night." The jury were authorized to consider all the facts and circumstances in evidence, and it was in their province to decide whether or not the defendant exercised ordinary care respecting the safety of the platform for the work required to be done thereon. We do not feel authorized to say, as a matter of law, that there was no evidence to warrant the jury finding, and the assignment is overruled.

The sixth assignment of error is based on submitting question No. 8 pertaining to assumed risk. If, as found by the jury in question No. 4, the defendant was not guilty of negligence, then any finding as to assumed risk would be entirely immaterial. The error, it is thought, should be held a harmless one, in view of the record. Rule 62a (149 S.W. x).

The judgment is affirmed.