162 S.W. 1023 | Tex. App. | 1913
2. This case, however, will not be reversed on account of the improper admission of the testimony above referred to, for the reason that another witness (Cantrell) was permitted to testify to the same facts without objection. Ry. Co. v. Smith,
3. Appellant's second and third assignments of error as to the refusal to give special charges requested in reference to minority must be overruled, for the reason that the same ignore the issue of assumed risk and contributory negligence, both of which were pleaded by appellee. Ry. Co. v. Minter,
4. Appellant assigns error upon the following portion of the court's charge: "Assumed risk is the risk ordinarily incident to an employment in which one is engaged, and an employé of a compress company assumes the risk arising from dangers or defects which are known to him, or which are obvious or discernible by ordinary observation; and in this connection you are instructed that Walter Lawson, while in the employ of the Hamilton Compress Company, assumed as matter of law all of the risks of injury that were ordinarily incident to his employment; and if you believe from the evidence that his injuries grew out of and were *1025
occasioned by a risk that was ordinarily incident to the employment in which he was then engaged, you will return a verdict for the defendant." The vice in this charge is that it ignores the minority of the plaintiff, the law in reference to which was correctly stated in the special charges requested by appellant and above referred to. It is not sufficient that the danger is obvious, and therefore presumably known to the minor, but he must have sufficient discretion to appreciate the danger; and this is a fact to be determined by the jury, and should be submitted to them in the charge of the court. Allen v. Shook, 160 S.W. 1091, decided at the present term of this court; Ry. Co. v. Brick,
In the case of a minor, as in all other cases, the evidence may be such that reasonable minds could not differ as to the fact that he knew and appreciated the danger. In such case it would not be error for the court to ignore the issue of minority. The cases cited by appellee do not announce a doctrine contrary to that above stated. In Krisch v. Richter,
5. Appellee insists that the court did not err in not submitting the issue of minority, for the reason that there was no proof that appellant was not warned of the danger. There is no evidence in the record that he was warned. It is the duty of an employer in such case to give the warning, and the burden is upon him to show that he discharged this duty. Ry. Co. v. Worden,
6. We are inclined to agree with appellant, as asserted in his propositions under the fifth assignment of error, that there was error in the charge of the court in ignoring the issue of defective machinery, and in assuming as a fact that appellant placed his hand too near the machinery, and also that he had a large glove on his hand. To say the least of it, the charge is not clearly framed in this regard, and should be corrected upon another trial.
For the errors above indicated, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.