*1 words, avoid sale. In other covered case of fraud asserted the whole par- appellee. the issue to This caused charge general take of the nature of a given issues. in a case submitted Looney (Tex.Civ.App.) S.W. v. Elliott 951; v. (2d) Brammer & Wilder County 24 S.W. (Tex.Civ.App.) Limestone (2d) 99. multifarious. Again, the issue car contained the issues Whether wrecked; whether ever perform as good condition car; had ever whether it

an unused purposes. demonstrator other than used for been submitted should have These issues Lime Wilder v. separately. Brammer & (2d) 24 S.W. County (Tex.Civ.App.) stone Co. v. Ins. 99, 104; Metropolitan Life 703; Greene 179-181; Missouri, 126, pp. Tex.Jur., § Long (Tex.Com.App.) Railway K. & T. they assigned, but are errors Other they trial will upon another arise

may not judgment should be discussed. for another and remanded reversed so ordered. it is and remanded.

Reversed MARTIN, Inc., KYSER.

E. L.

No. Appeals Texas. El Paso. of Civil

Court 18, 1937. March April

Rehearing Denied

quantity of concrete under a railroad trestle or bridge being by the defend- constructed ant underpass to form an high- so way pass might under tracks Houston Belt & Terminal At Railroad. point where the accident occurred the rail- generally road runs north and south and the highway east and underpass west. The had excavated, temporary and a railroad bridge constructed over it of sufficient carry and width to three standard railroad tracks passing with trains over them, temporary walkway and a had been on constructed road A the same level with the rail- bridge, paralleling it on east side. permanent being poured foundation was support the trestle it when com- pleted, brought concrete was a point concrete mixer to a over trestle by the large use a dragline crane or ma- chine to which was a attached bucket used carry the concrete. The crane and the concrete mixer were both east the rail- road highway, and south of the and on about the same level with pit the railroad. The to be filled with concrete was below the trestle, approximately twenty-five feet lower than the mixer and crane. Plaintiff at the injury time standing of his a few feet east of the railroad trestle and south of the highway, and on about the same level with highway. standing He was on a con- footing poured crete which had been some observing time before and was pouring carrying of concrete under the bridge. In the concrete from the mixer the railroad passed trestle the loaded bucket about 30 plaintiff’s feet above in a level circular n fashionfrom the mixer to the trestle and nearly point over or over the where the plaintiff standing. in- Plaintiff was Sewell, Garwood, Taylor, Morris & of jured when cable attached to this bucket Larry (Ben Houston Morris, Sewell G. W. for drop broke and the bucket to on Houston, counsel), both of temporary walkway had been con- appellant. way bridge structed east of the in such to cause the bucket in such Kayser, Liddell, Butler, to fall close Benbow of of & proximity injure toas him Dawson, Houston, (John Houston large quantity a counsel), appellee. and throw of concrete for dispute long him. There plaintiff a as to how NEALON, standing position Chief in this Justice. prior injury. Apparently to his he was so Kyser, appellee, judg- A. C. recovered standing from between to 60 $35,000 Martin, Inc., minutes against ment for L.E. injured. pouring corporation, personal a account in- con- on pit juries require crete into about August, him in sustained Occasionally hours of continuous job county. in Harris Plain- work. construction machine, employee defendant, to move the tiff was necessary not an concrete, graduate engineer handling but was working then which was backwards empty inspector High- as a concrete for the and forwards for a short State distance way Department. injury At into the time of the different chutes which large inspecting he was the pouring through had been constructed the railroad trial for a new with con- Defendant filed its motion when filled The bucket trestle. 2,400 pounds, which overruled. From approximately weighed crete impos- overruling the motion and the order undisputed that it would be it is appeal. prosecutes this pass through the ties new trial railroad sible for bridge. under the as to fall such a manner *3 Opinion. that he plaintiff alleged in substance The appropriate assignment and By of injured negligence the was because of complains of the ac- proposition appellant cable, using defective the in a defendant immediately giving, tion the in of court cable, inspect failing properly the and in special unavoid- respecting after the issue shortly moving dragline in the machine and accident, instruction: following the able “If injury with bucket of concrete :before his a spe- foregoing you the have answered it; plaintiff alleged further httached to and of an un- cial issue ‘it was the result negligent in the manner that defendant was accident, an- you need not avoidable then in it rigged in that which it had ” special the issues.’ any following swer of unnecessary twisting and conse Among special issues submitted the quent the wear on cable. upon the relating negligence were those by general de- answered The defendant part various theories defendant under of contributory pleas by special of and nial special interrogatory design- of fact and a plaintiff’s in- alleging that the negligence, of finding as to amount ed the to.elicit a by neg- juries proximately caused his we.re fairly reasonably cash that would and com- voluntarily place to selecting a ligence in pensate injuries. That plaintiff for his path the the movement of stand under of following the issue of this instruction bucket, place danger, which was of a the when he could unavoidable accident is reversible error easily just have selected Rainboldt, held in v. 97 S.W. Schroeder safety the of the of out of a opinion by an the Commission (2d) bucket, failing to of the and in movement adopted by Appeals the of which was trestle where the under the railroad stand Supreme Consequently, if the facts Court. inspect being he was to work which accident, raised the issue of unavoidable performed, where he would have been and this reversed. case must be perfect safety though even The ac- unavoidable issue did fall. present cident it cannot said is when be jury case was submitted to the The the injury as matter of law that result- a issues, in answer to which the nine plaintiff either ed from (1) follows: jury found in substance as or aor combination of both. of defendant injury plaintiff’s was not the result of That Railway Dallas Terminal & Co. v. Garrison accident; (2) that the de- an unavoidable this (Tex.Com.App.) (2d) 183. In knew, exercise or could fendant injury case there had would have no known, ordinary care have that the cable- said, not the cable broken. Can it be was of for the use insufficient evidence, as a matter of law that put; (3) which it was that mov- there a latent defect in cable immediately ing of the machine no of which defendant had notice —“a de- negligence; (4) before the accident was reasonably inspection fect which careful proximate such was the that will not reveal”? Schaff v. Ellison et al. injury; plaintiff’s (5) the de- cause of that (Tex.Civ.App.) 255 S.W. 682. In de- ordinary fendant failed to exercise care we, termining question, course, con- cable; respect inspection only sider the evidence most favorable to’ proximate (6) that such failure was the respect defendant in to this Largely issue. plaintiff’s injury; (7) cause of that an or- is, necessity, opinion it testimony. dinarily prudent person situated as was the operator put crane the cable on about tag would have used a line or week accident. He testified line; (8) other similar attached de- that he looked at the putting cable before failure to use such fendant’s a line was the machine; it on the most through of went n proximate plaintiff’s injury; (9) cause of hands; to him like good looked $35,000 fairly reasonably and cable; strands; he saw broken no if the plaintiff compensate injuries. for his it; cable was mashed he didn’t see he Upon years’ judg- eight experience the verdict the court rendered had had operating $35,000 cranes; inment favor of the he had seen never a cable break before; costs of suit. below sheave he had no warn- pursued inquiry diligently H. low from known going it was to break. ing that J. implied the cable facts operator, said is actual notice. Hexter Lain, crane also a up pick Pratt right (Tex.Com.App.) all like it was “looked oqly in the The fact be load”; any see breaks determined is: Did didn’t right.” H. defendant strands; have notice? is cable “looked all true Belt force Edney, employee holding the Houston Thurman P. Railroad, was on Chandler somewhat weakened who & Terminal railroad, court’s further ground in the interest of evidence did not right. We call for all submission thought looked cable issue; the.law, yet that, question fairly where apply courts arises think as our distinctly decided, unavoidable accident views ex pressed dictum; cannot called mere case. *4 the that, view of the Galveston Court was Special submitted 3. issue No. 2 question the in case, if was the the form jury was as follows: unobjectionable. the of issue was The Su preme you preponderance (125 from a of Court reversed “Do find Tex. 81 S. defendant, agents, W.(2d) its 489) upon the evidence the grounds, employees engaged question and the servants and as to the cor knew, rectness charge work the of ordi- particular or in exercise in this known, was nary could have the not discussed. In care before numerous instances inquiry, similarly the cable occurrence that worded under issues the same seeking findings passed was insufficient for the use have unchallenged. of See Speer’s 'put Special it time Issues, to which was at the of p. Law of 332 et seq. plaintiff’s injury ? think that but one We ultimate fact determined, was to be and that the issue ‘yes’ according will or “You answer ‘no’ as submitted subject was not to the ob you may as find the facts to be.” jection made. Appellant objected to the of submission upon ground this the it issue that was Appellant 4. made various ob duplicitous in both as whether inquiring jections to special to the submission of issue appellant or could knew have known that No. 3. This issue reads as follows: “Do strength. was the cable of In you insufficient preponderance find from a of the evi support proposition its of that the issue dence defendant, that the act of the its erroneous, appellant as submitted cites agents, employees, and moving in servants the decision of the Beaumont Court of immediately at drag line machine Appeals in Gulf Civil States Utilities Co. was, accident, light before the of Wooldridge, 325, in S.W.(2d) which evidence, you in- attending conditions as held that an it was almost identical issue be, may negligence, to believe them as that objectionable as being multifarious. defined?” term has been upon theory is This based objectionable. issue was The this form of ultimate, holdings upon that calls for two appellant alleged that “neg- pleading The independent, determinative In this facts. to be moved ligently caused the Beaumont Court takes with the issue while loaded and sus- carrying Court’s expressed Galveston views as tram,” allegations pended adding (Tex.Civ.App.) v. Chandler Thurman consequences. alleged ques- The to as assign- in which case the S.W.(2d) sufficiently pleading tion does not follow overruled, duplicity was and cites ment of and, upon closely; another if the authority v. Curts supporting Theis as submission, facts its should be call for it. 754, 759, in revised to obviate fault. From the 'held be to sub- to error which it impos- submission it would be manner of yes or calling single for a mit an say alleged under which of the sible to inquiry an as an to to whether no answer specifications negligence the jury found scope agent alleged acted within negligent. movement be * * * apparent authority.” “real or that differ- think issue No. to us there is a 5 was It seems vast We subject hold- Either bases of the two to criticism. should have between ence Apparent may directly authority exist where more at character aimed ings. been made, inspection assuming, appellee is a authority lacking. is first as real case, appearance, brief was that display mere which admits in his made, inspection or principal, an an there should second inquiry as actuality; knowledge whether but fol- have an which would first been respect of con made, With to the issue subse- with a inspection been tributory concluded have These we its character. quent inquiry negligence, danger chief in- were in error. The mere we bymet requirements are not Kyser expected foresee might “failed that be whether quiry as to drop respect arising to would from material be ordinary care exercise to inspection over his head. ping passing from the bucket the time of the cable appear It does not that he would have inquiry.” under the occurrence entirely danger, were un free from that he the court’s complains of Appellant trestle, appears der and it further contributory an issue as to failure to submit trestle, have to remain under the it would Ap- plaintiff. part necessary for to walk rein him guilty pellant pleaded that forbid forcing rods. This workmen were selecting contributory displace do, tend to den to because it would immediately under the the rods. operations when to watch from which may him the record condition places available to That there were other appeal, ap- jurisdiction for safety. give further There might have used upon appellant’s pre- pellee we asks that rule appellee have could was evidence 100, 106, 111, 113, assignments numbered post pared a of observation trestle, been out of there have *5 appears Though it complains Assignment No. 113 of the exactly appellee not that path by damages jury, amount assesse4 he was at the time challenging being excessive. We struck another injured, but that bucket upon question. shall not now rule near to or object and bounded complains of Assignment No. 100 say standing, we cannot at the submission of issue as to whether might not matter of law that he as a have “tag appellant negligent using likelihood occurrence of an foreseen line, line.” or other similar attached There considered; he was like the oné (cid:127) pleaded. How was no such engineer, presumably cognizant graduate immaterial, ever, as there were the error is great possibility measure of the recovery de independent grounds of equipment and breaks appellee’s favor. termined strain knowledge the effect of use and complain Assignments 106 and upon used in the material kind damages. as to the measure of instructions manufacture the cable. assignments overruled. Texas These are Upon if evidence be another Dear 64 S. Co. v. Utilities same, substantially contribu- the issue of 807; Terminal W.(2d) Houston Belt & negligence should be submitted. tory Ry. Scheppelman (Tex.Civ.App.) Co. questions prob- raised will 7. The other upon present trial. ably another not be 114 is overruled. Assignment stated, judgment For the re- reasons jury dis There no evidence the cause remanded. versed prior to of its answers effect cussed the verdict. as to entire agreement Rehearing. On jurors understood mere fact excellently Appellee has filed an briefed sought have them find forcefully rehear- argued motion for result of unavoidable injuries were not the insists we erred ing. He indicate misconduct does not accident and con- accident of unavoidable the issues they merely that part. indicates their ev- raised tributory were argument able to understand were grounds have re-examined We idence. exactly finding for counsel what of counsel based. decision was upon which our poor sought. It would be a litigant each capacity of counsel or tribute to comparison of the fact situation A jurors to believe intelligence of the present in Thurman and that case instant ignorant of long remain they would Chandler, Tex. listening litigants after attitude of the conviction that a sub- in our us confirms argument. issue of unavoidable accident mission rehearing is overruled. The motion appellant right