Kirby Lumber Co. v. Bratcher

On Motion for Rehearing. At a former day of this term the judgment of the lower court In this case was affirmed, and thereafter appellant in due time filed its motion for rehearing, which motion is now before us for disposition.

The motion for rehearing is a very exhaustive one, and appellant therein challenges the opinion of this court touching each and every assignment therein treated, but after a very careful consideration of the motion, we have concluded that this case was correctly disposed of by the original opinion filed herein, and that appellant's motion for rehearing should be overruled.

If it would serve any useful purpose for this court to again discuss at length the points raised in the motion for rehearing, all of which were passed upon in the original opinion, we would not hesitate to do so; but believing that no useful purpose would be served by so doing, we shall not enter into a rediscussion of the many assignments raised by appellant, and again presented in the motion for rehearing.

As said by this court in the original opinion, the question of negligence on the part of appellant's employe Edwards in the particular specified in plaintiff's petition, we still think was a question of fact for the determination of the jury, and that question of fact was determined by the jury against appellant. We also adhere to the views expressed in the original opinion to the effect that the issue of proximate cause was a question of fact for the determination of the jury, under all the facts and circumstances of this case, and that issue was also determined by the jury against appellant, and without again discussing the facts as contained in the record bearing upon these two issues, we deem it sufficient to say that in our opinion the evidence bearing upon both the issue of negligence and that of proximate cause was sufficient to warrant the jury in determining both questions against appellant; at least, we think that it cannot be properly held as matter of law that no negligence was shown on the part of appellant, as claimed by appellee, or that if negligence was shown, we cannot say as matter of law that such negligence was not shown to be the proximate cause of appellee's injury.

There is one further complaint made by appellant in its motion for rehearing, however, concerning which we desire to speak briefly. It is with reference to appellant's assignment of error No. 13. The assignment was:

"Because the court erred, to the prejudice of this defendant, in failing and refusing to give in charge to the jury special charge No. 3, requested by this defendant, which said special charge was as follows: `You are charged in this case that an employé assumes all risks and dangers which are not ordinarily incident to the business in which he is engaged, but which nevertheless are fully known to and appreciated by him. Now if you believe from the evidence before you that the risk and danger, if any, of injury to him from a movement of a log or logs on the skidway in question through contact with the log being brought up to the skidway by the employé Edwards were not ordinarily incident to the work in which plaintiff was then and there engaged, but you nevertheless believe from the evidence that such risk and danger, if any, was fully known to and appreciated by plaintiff, and you further believe from the evidence that from such risk and danger, if any, plaintiff's injury proximately resulted, then and in such event you will let your verdict be in favor of the defendant.'"

The above assignment was fully considered and discussed at some length, as shown by the original opinion of this court in this case, and among other things, it was said in the opinion, as stated by appellant in the motion for rehearing, that this requested charge was abstractly correct, but that as stated in the original opinion, the court was of the opinion that in view of the fact that the trial court gave to the jury special charge No. 4 requested by appellant, this court was of the opinion that the refusal to give said special charge No. 3, above quoted, if error, the same was harmless, for the reason that the giving of said special charge No. 4, and the finding by the jury of the point therein presented against appellant, rendered it very unlikely that the jury would have found in favor of appellant had said special charge No. 3, above quoted, been given to the jury.

Special charge No. 4, requested by appellant, and which was given by the trial court, was as follows:

"Gentlemen of the jury: If you believe from the evidence before you that upon the occasion of the accident in question, it was obvious and apparent to the plaintiff, if such you find it was, as the employé Edwards approached the skids with the log being drawn by him that there was a probability and likelihood, if such you find there was, that the log so being drawn would come in contact with a log or logs on the skids, and that thereby plaintiff would be injured, and you further believe from the evidence that it would have been a simple and easy mater for the plaintiff to have avoided any injury to himself by removing himself away from the logs lying on the skids, so that any contact between the log being drawn up and a log or logs on the skids would not have resulted in any injury to him, and you further believe from the evidence that the plaintiff failed to so remove himself away from the logs on the skids, so that any contact between the logs being drawn up and a log or logs on the skids would not have resulted in any injury to him, and you further believe from the evidence that in so failing, if he did so fail, plaintiff did not exercise such care for his own safety as a person of ordinary prudence would have exercised under the same or similar circumstances, then you are charged that plaintiff was himself guilty of negligence, and if you further find that such negligence upon his part, if such you find, was the sole, proximate cause of plaintiff's injury, then and in such event you will let your verdict be in favor of the defendant."

In discussing this special charge No. 4 given in the court below at the request of appellant, this court, in the original opinion, denominated the same a charge on the issue of contributory negligence. As pointed out by appellant in the motion for rehearing, however, such charge, strictly and technically speaking, was not a charge on the issue of contributory negligence, but the same in effect told the jury that if the plaintiff was guilty of negligence which was the sole cause of his injury, thereby excluding and leaving out of consideration the question of negligence on the part of defendant, then the plaintiff could not recover; and this court thought at the time the original opinion was written, and now thinks, that special charge No. 4 announced a correct proposition of law, but, as above stated, the same cannot be accurately called a charge on the issue of contributory negligence. The fact is, as stated by appellant, in its motion for rehearing, no charge on the issue of contributory negligence, technically and accurately speaking, was given by the trial court, and none was requested by appellant. But it would appear from the appellant's motion for rehearing that counsel for appellant are of the opinion that this court meant to hold that there was no distinction or difference between the defense of contributory negligence and that of assumed risk, and that this court thought that because said special charge No. 4, which this court at that time denominated a charge on contributory negligence, was given to the jury, and the issue there submitted was decided against appellant, that the same had the same effect as if the requested charge on assumed risk above quoted had been given to the jury, as requested. In this connection we desire to say that this court fully recognizes that the defenses of contributory negligence and assumed risk so frequently interposed in cases of this character are separate and entirely different and distinct defenses, and that where both such defenses are interposed by the pleading of the defendant, and where the evidence adduced in support of such pleadings raises the issue of both such defenses, the trial court could rarely refuse to submit to the jury proper charges relative to each of such defenses. G. H. H. Ry. Co. v. Hodnett,106 Tex. 190, 163 S.W. 13; Railway Co. v. Hannig, 91 Tex. 347, 43 S.W. 508; Railway Co. v. Bradford, 66 Tex. 732, 2 S.W. 595. 59 Am.Rep. 639; Railway Co. v. Bingle, 91 Tex. 287, 42 S. W, 971; Railway Co. v. Mathis,101 Tex. 342, 107 S.W. 530.

After a very full and careful reconsideration of the record in this case, this court is now of the opinion that the charge on the issue of assumed risk, being special charge No. 3, as above quoted, requested by defendant, should not have been given to the jury at all, and the same was correctly refused by the trial court, for the reason that the evidence did not raise the issue of assumed risk, as embraced in that requested instruction. The negligence complained of in this case was not that some instrument, tool, implement, machinery, or instrumentality furnished by the master had been permitted by him to become defective or unsafe, or that the master had failed to use proper care to furnish the servant a reasonably safe place in which to perform or discharge the duties of his employment, all of which were known, or must necessarily have been known, by the employé in the exercise of ordinary care on his part, while discharging his duties of his employment, but the contention on the part of appellee was that appellant's employé Edwards committed an act right at the very time of the injury, which an ordinarily prudent person would not have committed, under the same or similar circumstances and that the commission of such act, under such circumstances, was negligence, which was chargeable to appellant, and which resulted, then and there, in appellee's injury.

We think, however, that the trial court would have been justified, and perhaps required, to give to the jury some correct charge on the issue of contributory negligence had such been requested by appellant, but, as above stated, no such charge in any form was requested.

Appellant also requested the trial court to charge the jury as follows:

"Gentlemen of the jury: You are charged in this case that the employé assumes all risks and dangers which are ordinarily incident to the work in which he is engaged. Now if you believe from the evidence that the injuries which plaintiff sustained on the occasion in question resulted proximately from risks and dangers ordinarily incident to the work in which he was then and there engaged, you will, in such event, let your verdict be in favor of the defendant."

This requested charge was refused by the trial court, and we think properly so, because of the Acts of the Thirty-Third Legislature, chapter 179, § 1, of part 1, page 429, which took away from the employer, such as appellant in this case, the defense of assumed risk, where the risk of danger is ordinarily incident to the employment in which the employé is engaged. Middleton v. Tex. Light Power Co.,178 S.W. 956; Memphis Cotton Oil Co. v. Tolbert, 171 S.W. 309; Consumers' Lignite Co. v. Grant, 181 S.W. 207.

Appellant, however, is not insisting in this court that the trial court erred in refusing to give this special charge. Had it not been for the act of the Legislature next above referred to, it may be that the refusal of the court to have given this charge on assumed risk, under the facts in this case, would be error; but of course we are not passing upon that question at this time, because it is not before us. We do feel certain, however, that under the evidence as discussed in the record in this case, the trial court committed no error in refusing special instruction No. 3, requested by appellant, on the issue of assumed risk.

The motion is therefore overruled.