17 S.W.2d 861 | Tex. App. | 1929
(after stating the case as above). The findings of the jury numbered 1 and 2, it will be seen on referring to the statement above, were (in effect) that the cartridges Herschel Harrison picked up were cartridges appellant had in its possession and control; and the findings numbered 3 and 4 were (in effect) that appellant was guilty of negligence which was the proximate cause of the injury to Herschel, in that it "permitted" the cartridges to be where they were when he *862 picked them up. The sufficiency of the evidence to support the findings, or any of them, is not questioned by any of the assignments of error in appellant's brief, nor does appellant complain here, specifically, of those numbered 1 and 2 on any other ground. But it does complain of the action of the trial court in submitting the issues covered by the findings numbered 3 and 4.
As to finding 3, it is insisted the issue it covered predicated negligence of the appellant "upon (quoting) the cartridges being exposed in and about the building of the company." Appellant asserts it had a right to have the cartridges on its premises, and that its having them there "would not be negligence (quoting) unless the same enticed the plaintiff, the boy, upon its premises." That may be true, but whether it is or not is of no importance here, for no such question arises on the record sent to this court. It was undisputed that Herschel found the cartridges, not on appellant's premises, but on a public sidewalk and in a public street on which said premises abutted. That being true, negligence of appellant was not predicable on the fact that it had the cartridges on its premises, but was predicable on the fact, if it was a fact, that the cartridges were on the sidewalk and street because of its failure to use proper care to keep them off of same. In Ry. Co. v. Padgett,
We think the further contention with reference to said finding numbered 3 that, as framed, the issue covered by it was on the weight of the evidence, in that it was assumed therein that the cartridges were exposed by appellant "in and about" its building, must be sustained. It was undisputed in the evidence that the cartridges were "exposed" in the building, but it did not conclusively appear that it was due, proximately, to any act or omission on the part of appellant that the cartridges were out of but about (meaning near) the building, where Herschel found them. The burden was on appellee to prove that, and we think the jury might have found that appellee had not discharged the burden. That being the case, it was reversible error for the court to assume in submitting the issue to the jury that appellant "permitted" the cartridges to be "exposed" at the places on the sidewalk and in the street where Herschel found them. Ry. Co. v. Hartnett (Tex.Civ.App.)
As to finding 4, it is charged that, as framed, the issue it covered also was on the weight of the evidence, in that it was assumed therein that appellant "failed to prevent the exposure of dynamite caps picked up by the plaintiff." The charge is not supported by the record, which shows the language used by the court in submitting the issue to have been as follows: "Was the negligence, if any, of the defendant in failing, if it did, to prevent," etc.
For the error of the court indicated in what was said about the finding numbered 3, the judgment is reversed, and the cause is remanded to the court below for a new trial.
