No. 3023. [fn*] | Tex. App. | Nov 12, 1925
The court in the charge submitted in separate paragraphs the three distinct grounds of negligence alleged in the petition, and authorized a verdict in favor of appellee upon a favorable finding by the jury upon "either or all" of the paragraphs. The appellant entered timely exception to the charge, and requested a peremptory instruction, which was refused, because the evidence established that the injury to appellee was an accident. We conclude that the appellant's contention should be sustained, as the circumstances preclude any other rational conclusion than that the injury was an accident. The injury, as shown, was not in consequence of any of the alleged grounds of negligence. Neither the weight of the cross-tie nor the direction or method of carrying it — by two men only, and on their shoulders instead of on their hips — brought about or contributed to the sudden and unexpected falling to the ground of the rear end of the cross-tie. It occurred, as admittedly shown, by reason of Will Thomas' foot slipping on the muddy or "slick" ground, and which caused the cross-tie to fall off his shoulder to the ground; he did not intend to slip, and he did not foresee that he would slip in time to avoid it or give *956
warning. The cross-tie fell off of Thomas' shoulder, when his foot slipped, suddenly and quickly. It was an unintended and unexpected occurrence on the part of Will Thomas, which produced hurt to appellee, and the slipping therefore was accidental. An unavoidable accident is a complete defense against liability. Ry. Co. v. Washington,
The judgment is reversed, and judgment is here entered in favor of appellant; the appellee to pay costs of the trial court and of the appeal.