*1 Tes.) CONST. GORDON JONES CO. v. LOPEZ was, experience, plain- to tiff’s not him did know where it enable person tiff prudence, acted as a testify as its contents. erroneous, though approved. not is not [6) damages, on the measure of eases, [Ed. Note.—For other Master see complained eighth in reasonably plain presentation and ninth as Servant, Dig. 1180-1194; Dig. Cent. §§ § Dec. signments,' is a 296.*] rule, think, so that under (§ 286*) Injuries 5. Master and Servant — — necessary — stood what was meant. It not to for Servant Latent Defects Question Jury. to tell a sum deceased to find what total injured by a Where servant was the fall would have lived, contributed had cornice, proof there was some that sum de gave then to discount causing foot, wall itself under his fall, ducting legal rate, defendant was as entitled to have issue of the interest at jury. latent defects in the wall submitted to the present to show the worth of the total sum cases, [Ed. Note.—For other see Master so found. was: The issue submitted Dig. 1001, 1006, Servant. Cent. 1008. “Say paid money, now, what sum would 1015, 1017-1033, 1036-1042, 1046-1050; 1044, equal pecuniary benefit, any, Dig. Dec. § 286.*] expectation re- reasonable (§ 349*) 'Special 6. Trial Issues —Submis- ceiving son, — from his deceased had he lived.” Special Charges sion — —Refusal. These are overruled. justified refusing The trial court is pas- special prejudice to submit the case on issues There is no evidence of because at the same time sion on the assignment and the tenth special charges. made for the is overruled. cases, Trial, [Ed. Note.—For other see Cent. mentioned, On account 'errors the Dig. 823-827; Dig. §§ Dec. § 349.*] reversed, and the cause is re- (§ 352*) Special 7. Trial Issues —Submis — manded for trial. sion. special to submit a on sues not be denie'd defend- copy ant did with a LOPEZ. JONES CO. v. GORDON CONST. issues desired submitted. (No. 5321.) cases, [Ed. Trial, Note.—For other see Cent. Dig. 840-842, 844, 845; Dig. §§ 352.*] Dec. § Appeals (Court of of Texas. San Antonio. Civil Rehearing, 11, (§ 349*) Special Nov. On Motion 1914. S. Trial Issues —Submis- — 3, 1915.) b. sion. Fe Sayles’ Under Yernon’s Ann. Civ. St. 288*) Injuries (§ 1. Master Servant — 1984a, providing court, art. that shall submit the on the re- to Servant —Assumed Risk. quest of either on cause party, taking assisting Where while prejudicial error for the stepped plaster paris down a on a request prior court to refuse such a was so submitted at a because the breaking off, pre- molding, which, cornice or trial, cipitated plaintiff ger matter of as below, j;he the earth dan- agree, due, thought, failed to as cornice involved character open apparent law, submitted. principal, to defendant’s vice nor so cases, Trial, Cent.’ ordinary prudence man of Dig. 823-827; Dig. Dec. § 349.*] stepped on it. 1062*) Prejudice- (§ cases, — see Master and Special Dig. Submission 1068-1088; Case — Servant, Dig. § Issues. Cent. refusing erroneously Where the deprived .to the case on of (§ 278*) Injuries 2. Master and Servant — statutory right, defendant Civil to Servant —Plan—Evidence. Appeals could not hold that the error was On issue as to whether master has prejudice. provided work reasonably plan safe cases, [Ed. Note.—For other injured, in which the servant has evi- Error, dence the use the same method other 1062.*] persons missible, business, in the same while ad- (§ 512*) Opinion—Matters is not conclusive. 10. Evidence o.f — Expert Knowledge. see Master and injured assisting Where Servant, Dig. Dec. while 954, 956-958, 960-969, demolishing wall, whether it was safe 972, 977; the wall man crowbar and a 278*) Injuries 3. Master and 'Servant — related to a hammer matter un- it was — to- Servant Method Work Safe expert testimony. to submit Plan. Evidence, injured Where a servant was while assist- taking wall, proof down a adopted by used there was no commonly (§ 10814*) Argument defendant was the one Trial of Counsel Company. by persons engaged business, —Reference to Insurance showing any person plaintiff’s attorney, is error for ex- ever jurors dire, method, amining establish, used their voir to ask different company matter tions which intimate an insurance reasonable adopt defending the case. method of the work. Trial, [Ed. Note.—For Master and Servant, 954, 956-95S, 960-969, §§ Dig. § 108%.*] Dee. Rehearing. On Motion for 296*) Master Servant Contributory Negligence. to Servant — Trial Written —Instructions Charge instruction on the issue of con- —Nature and Form. tributory the circumstances in negligence, jury might Rev. art. 'St. amended consider all Leg. evidence, including plain- c. Acts 28th the court to Key-No. Am. Series *For other see same and section in Dec. & & NUMBER *2 SOUTHWESTERN place charge wall, placed unless ex- another upon he written charge pressly parties, which waived part him a foot what seemed to up general be made be a one or top wall, appeared special issues. walking it, him, purpose of for the Trial, highly 514^516; place and was insecure but which dangerous any person walk work (§ 352*) Special Trial Issues —Submis Preparation op Charge. wall, upon because, sion — instead of solid Say 1914, art. Vernon’s les’ Ann. St. Oiv. plastering it was in fact cornice 1984a, gives to have wall, insecurely of mortar fastened to the case submitted on way plastering gave be drawn if either and, and said cornice or plaintiff’s weight issues have thinks stepped upon omitted, proceed the omission he must to have ground; precipitated him to the same and prescribed by supplied, as article warning plaintiff gave that defendant Trial, [Ed. Note.—For 840-842, wall, in notice of the defect occasioned danger cornice, nor of the of walk 832*) Rehearing Bankruptcy. —New Issues — avoid thereon nor instructions how Where the fact that become same, in such con and said cornice was bankrupt record, was not shown position and dition and so attached application could not be considered on an rehearing. plaintiff wall did not and could ordinary and care, the exercise of dis Error, § covered the said condition of and the same danger stepping upon same, which de Appeal— 15. Courts —Intermediate knew, ordinary fendant the exercise Supreme Certification Court. sepa By way care would rate have known. Where review application be obtained plaintiff alleged negligence of er- count, writ ror, questions Appeals certify the Court of Civil will not part failing of defendant to furnish Court for an answer. place him a safe to work and a safe Courts, and safe instrumentalities 751-754, 757, 759, 760, work; by work- should have been done .that temporary scaffold, means of a Appeal from Court, Bexar Coun- plaintiff stood, ty; could have or should Minor, Judge. R. B. rope, block, have used a derrick with a and Lopez Action Ladislado grabhooks and tackle to obviate the necessi Gordon Company. Jones Judg- Construction ty plaintiff’s standing upon the wall. ment for appeals. Re- plaintiff’s inexperience In this connection versed and remanded. knowledge dangers and lack of inci Arnold, M. J. Cozby, R. S. and W. S. necessity dent to the work and of the Peyton, Antonio, of San using fully a scaffold or derrick were al J. D. Childs and Brown, James W. both of leged. Antonio, appellee. San Defendant, plaintiff’s after his denials of alleged: allegations, That, if the wall was MOURSUND, Lopez J. Ladislado sued dangerous condition, plaintiff in a created the Gordon Company Jones Construction during progress such condition injuries for falling sustained him be tearing down; work of cause of from a wall which he was loosened, such work the stones would be and assisting tearing down while in the em joists loosened, as the material was ploy company. of said He that John constantly dangers pulled out, new Crawford principal was foreman or vice presented parts of the wall be becoming account company, acting personal .defendant as the footing insecure, loose or representative thereof, overseeing, and was plaintiff this, ordinary that discharge knew or in the directing, controlling the work at which necessarily of his duties must plaintiff engaged; neg that Crawford it, ordinary known the exercise of ligently sent top to work on of one discharge care in the of his duties would walls, which was then and there be it, thereof, have known and the risks down, torn at a unusual, which was risks of dan- therefore he assumed the improper, insecure, unsafe, plain pleaded plain- gers. Defendant further inexperienced tiff was in that class of work tiff assumed the risk of the work done appreciate and did not understand and step- done, in ping danger the manner which it was attending the same and the means edge por- near the avoiding too same, and could not have dis becoming especial- loose, tions of wall covered the exercise of ordi ly edges; nary care, risk, ignorance, near the that he assumed the inexperience, knowledge fall, knew of the defect that caused his and want of necessarily by defendant, would have known was known thereof or would have been discharge duties, together of his care, known while exercise of attending risks. further work, Defendant in said using guilty pleaded of con- due from one Dig. Key-No. *For other cases &Am. Series & in Dec. section NUMBER T»x.) GORDON JONES CONST. GO. v. LOPEZ sons such evidence furnishes no missible method or dinary the work. of the use of the same method Under our is made of issue is whether the No ment tify gence objection stepped upon the same. ping upon parent in the lant was and, hibited to the graph tion as and is overruled. vice a' as a matter of which furnish us with no as it a “model” of ed with it with his tools before relating that Negligence and as instruction in favor Much of the about tended show where he was a proper down. of thereof, of the ment in favor wall clean and clear tributary negligence repeated warnings was safe before despite the wall instead of by looking stepping The fifth man of [2, By assignments proper lookout, latent defect in the warn a matter of law. After objection of the principal, further that the submission of the as said was to the 3] Assignments with 2 of the court’s negligence plan trial resulted court’s refusal assignment inspection plaster issue of the Defendant to and in negligent reference is that there is no evidence to the form too ordinary prudence the case. assignments such cornice was as paragraph respect statement assignments or method testimony the evidence is insufficient is made the issue of near the wall in the same or so it, predicated upon of *3 warnings of stepping, in sufficiency jury, provide failing wall submitted whether on the appellee feeling undertaking paris 1 and No. in the matter of furnish to see that also thereto, to the method of that the of as to the defendant’s similar circumstances.” in a S of the employer staying wall. in a reckless charge, of to 1, they should be overruled. beyond is not as clear to us the work. Evidence many questions raise the same to cornice or decisions, 6 and 7 are unable to to be more careful rubbish, in danger failing facts, is without part of failing the sixth assumed the verdict and complain putting doing inspect conclusive charge, theory It, reasonably cornice was the answers business is ad would not light failing danger in the charge, the contention are overruled. $5,000. open careful of has to we conclude the defense the failure of peremptory top to observe in to other complaint appellant, knowledge. It is care, evidence, the real walk, molding. but edge to of striking make because a matter moving assign footing where middle appel merit, work. negli guide para- judg- assignment read step trial risk, knowledge thát wall ask per say, jus con foot ap ex or in of -charge emphasized jury to pellant’s under his matters rectness of the given upon we do not sue construction assignments are overruled. timony wall made of the seventh charge, The sixth and seventh contention, in view of the determine from not prudence negligence wall was or. consider all the facts dence before the wall itself did for us to er the case as sufficient obvious mention of certain matters contended Lopez.” dangers nice, ruled. work incident to the ed dinary witness Blum’s as a matter of mitted. We have was no evidence that should not have been method of it could evidence and find that it is was the one gaged the usual method was to the effect that the “In “The However, [4] In White, under the error was can overruling other Assignments 10 and the issue nor was seem that latent defect convinces us that it is undisputed consider care to furnish a again quote testimony incident strong not fall and no counsel in would have acted under assignments 54 S. W. of foot, causing method, and, charged cites the case of Hillsboro approve special charges given you, doing entitled to" you, including is a theory said issue. At first denied in that law, commonly business; reading with the reads those solid and plan charge law, acted should not done. Assumed testimony, evidence does contention that appellee there the wall itself testimony the work. The seventh with constructive notice. part carefully of actual or paragraph circumstances issue. danger stepping upon fall. It plan submitted, because, part, assignments any person assignment, although iu manner in pursued, follows: charge. The after his fall. used authority great weight. and 9 circumstances experience of appellee’s brief as follows: the court. 11 relate to the is support further should have been person used assumed the no merit in this admission case. under we cannot reasonably have appellee the accident and wall; to show that the shows that overwhelmingly considered the experience,and of subject regards was complaint by appellant not disclose constructive view of the the same or contributory risk is bas- when there persons it fell of induce the We consid- This, whether or gave way which the discussion ever used the issue glance own tes- used case the ordinary you may he open the cor- require Oil court’s of the in evi- charge over- it is with had, writ test, safe sub- risk cor- say, ap en- or- 172 SOUTHWESTERN partially upon general charges pellee special charges. closes that the had been refusing special charges special fore signment. time tion for for the cial even his ories, requested ceptions relating to this matter bears the request ment of error. The court upon specialissues.” cause of necessary it and, that such method of submission. The sues, 15, and made the case he him to fall. on. The tive and timation the true, tioned desired submitted. submitted at because was respect fied to his sues was wherein besides the large failed to following qualification: lant dence “The There is no merit in In the sixteenth There There is impracticable refusing refusing request indulging stepped issues, to the bill of made it The further number of ; is contradicted one that unhesitatingly uphold a were request to with a to the cornice. issues was they was determined not still it made an issue which the case it agree, the court would have upon therefore the court is the the refusal of therein might opinion entitled refused defense, urged we should submitted that contends appellant opinion, no on found requested submission request special charge are involved character of special charges special giving copy for which submitted, request, merit in the twelfth loose rubbish merit slanting exception have been witness submit special overruled. was court of the presumption same time detailed as because on- submit the case waivers request objection should case be submitted on made for the presume but we have the The statute at did not submitted issues; upon in the thirteenth because at the The court’s and we see no reason are sustained. this reason, the court to submit issues, assignments 14 and slipped and the other it is special charges the court considered Brauch shows his between two the- case taken as the same doubt heretofore men- special the record dis- that submission appellant, special appellant hav- that refusal which due time for be warning submit fully charged sufficiency such as well complaint on former off the wall justified argumenta- only bill of ex- submitted they the issues special attorneys does special qualifica- time, seriously partially pass up- justified granted, request, charges reasons assign- was by ap- day issues. an in- appel- as be- testi- were trial, (cid:127) that very that jury spe- evi- be- we as- is- is- ing intended, have said upon ute But of strued the discretion court of such excepted cable not submitted sons cannot be special ticably the submission —leaves it W. 330. tice Gaines said: necessity always mit a believes it on when issues such sues. more exception agreement mission of the submission of The * * and because of the involved character of the as it nored late and require this, shall This Jackson, the administration of specially becomes quently disagree, and issues. The that “the submitted. (Acts “In “Provided the statute. special judge refusing provides clause was court to we been have 50 S. W. *4 Legislature Prior the language court, that * submit very language should then stood complicated because of case reasons not show be decided a character cannot been to do decide which issues submitted, case 92 Tex. it determined complicated special issues, authorized to so, and we would then issues, has occurred furnishes exception impracticable upon p. upon special issues, optional that, if the cannot is, to submit the case request hinq the plainly same submitting generally so” thought to refuse the 113), The trial given we conclude agree with however, If such had evidently submission cannot be determined Railway to be submitted. Juries the issues reads as the cause because the case the special mandatory. Railway adoption Legislature be special involved. In it was left party’s 51 S. W. the justice or refuse case to decide in said article request with the court best upon and insisted statute, enacted determined on the the case was the most the case, upon special understood that jury nature of the court deny the same. be said the case. The stat- approve upon special issues. to do contended that the to submit the v. that the case was follows: issues. This sav- S. W. on issues when either he desires it to have a * * * such construction the submission request failure to could statute as Jackson, fact that a dis- that the upon special general charge. been greatly promotes failed trial a former evidently cannot article 1984a. optional cases can so.” article 1984a could either upon special if greater fact, therefore more Chief Jus- out of the mean- the court be called the when the upon, the issues.” 92 Tex. is that to sub- ground require practi- formu- suit is giving party, it has agree, easily refuse 51 S. prac- court trial, with case con- sub- fact rea- law find fre- the the an ig- v. y. Tes.) CONST.CO. LOPEZ GORDON JONES
ings
lated to
of these
although
objected
impanel
closing
ments of
to withdraw the case from the
of error.
becoming
abundance of
clause
is
the information
that
termined
sues,
exception
W.
statements made
attorneys
examination,
hammer.
cases to be submitted
request
language
ed,
meaningless
tion,
hammer to
case for
to a
to call
in
arrive at
man to
has
peals
W. 439.
of the
be an
Shelley
signment of
nant to
ed.” Lewis’ Sutherland on
dangerous,
ed in
tions
whether to
quire
Guffey
was such
depriving
“If irrelevant
proviso
questions
complains
possession
there be no case which
been
complained
the other
vol.
there
matter
motion
We
refusing
of the
ordinarily
a reversal
asked the witness
kind
generally
Assignments 19, 20,
case.”
in
Petroleum
argument
be
injure
in each instance
this
However, we would not
2, pp.
construe
fairly
*5
adopted
supposed
strictly
fully
error
In order
too
assignments together. Appellant
made as
an immaterial error
experts,
defendant
These
follows and restricts
City Austin,
put up
new
in
tear
body
the conclusion
put
all,
error
asked
issues. The same
Seventh
error.
caution,
tearing
lengthy,
appellee upon
being
and 29
within
in its
careful
appreciating
down
and the statute
feel authorized
questions, we
reference
of the
provided thereby.
which was
there with a crowbar and judges
construed
man with
assignments
as the
in the other
submission
esception
insurance
based
or statement
17 and
suggestion
overruling
of this
way
the Court
keep
sustained.
or
whether it is safe
down such
upon special
scope
the wall of a
statute,
act,
v.
we will consider all
jurors
enacting
working upon
consideration;
judgment.
given
postpone
'Statutory
jury.
to submit
Dinwiddie,
Blum;
jury could be
terms.
thereto,
if,
it has been
and 21
attorney
and limited
Tex.
their voir dire
statutory
amounts
cannot
company
relate to
“by imparting
in
these
necessary
crowbar and objectionable
think,
Nos.
of-
of Civil
assignments
construction
unnecessary
an
language,
Assignment
themselves.
the case
reverse
^s
clause
of certain
one
ingenuity
the
hold
a motion insurance. The direct
Construc- pany
complain
this case
contend-
enacting
proceed
building
22, 23,
ground
not re
assign general questions
Where
would
reject-
calcu
repug-
relate
work,
to no
case;
being
12 S.
ques
right
back
that
err-
Ap-
de-
as
is- imize
or
of
S.
gether,
ing employes’ liability
nies
in the case.
juror
insurance
fact,
interested
not even
clude
ments
fact
insurance
ance
loss or
would
as
certain whether
by
If it be desired to
doubt
tion to the effect
case. This is a close
which a
surance
are
questions
but courts will
time when
attorney
sufficient to turn the scales
fendant. Lone Star
such as will
the
examination
testing
ed to
seeking
tried to
that the court several times intervened and
Dilworth,
Brady,
84 S. W.
the
further
ments.
whether
with the result that a
between the court and said
decisions of this court and other courts of
error denied
Walker,
chine
Gress, 156
defective condition repair the tenant. undertook to the roof of building Landlord and negligently left Tenant, 630-637, 639, 641; Dec. open night appellee; over without notice to Dig. § 164.*] during night and that rain came on and 169*) Repairs Landlord and Tenant goods damaged by stock of .his water de- —Negligence of Landlord —Evidence. scending through Appellant justify roof. finding an- Evidence held to repairing building negli- landlord damage the roof of a swered that *For other oases see Dig. Key-No. section NUMBER in Deo. &Am. Series & pending S.W.—63 † Writ of error Court.