207 S.W. 990 | Tex. Comm'n App. | 1919
Suit by J. S. Ellis against the Orange Lumber Company for personal injuries sustained by him while in the employ of defendant. A trial by jury resulted in a verdict and judgment in favor of plaintiff. On appeal, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause, 153 S. W. 1180. Pending motions for rehearing by both parties, the Court of Civil Appeals certified certain questions to the Supreme Court, among others, whether, upon the facts presented in the certificate, there was error in refusing a requested charge, to the effect that under the undisputed evidence the plaintiff assumed the risk of the accident, which resulted in his injury, and instructing the jury to return a verdict for the defendant; or did the facts so stated present the issue of assumed risk, which should have been submitted to the jury, as was done? The court answered that, upon the facts Certified, the issue was properly submitted to the jury. 105 Tex. 363, 150 S. W. 582. Based upon the answer to this and the other questions certified, the Court of Civil Appeals granted the motion of appellee (plaintiff) for rehearing and affirmed the judgment of the trial court. A writ of error was granted by the Supreme Court; the court being inclined to the opinion that upon the record disclosed, which was regarded as somewhat different from the facts certified, the plaintiff assumed the risk. Upon a careful examination of the record, we find no facts disclosed which, under the principles of law announced by the Supreme Court in its answer to the questions certified, would lead to the conclusion that the plaintiff, as a matter of law, assumed the risk. We therefore recommend that the judgment of the Court of Civil Appeals, affirming that of the district court be affirmed.
The judgment recommended hy the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
