No. 921. | Tex. | Jun 21, 1900
This writ of error was granted upon the allegation that the decision of the Court of Civil Appeals, reversing the judgment of the District Court and remanding the cause, practically settled the case, and the only questions for us to examine are whether or not such is the effect of the decision, and, if so, whether or not it is correct. The opinion of the Court of Civil Appeals holds that "the evidence has shown beyond question" that the deceased, James Quill, had assumed the risk from which his death resulted, and that it "destroys the case made out by appellees." We think the holding clearly settled the case made by the evidence before the court and the effect of the application for writ of error is to admit that appellees can not change the evidence upon another trial.
Having carefully examined the statement of facts, we are also of the opinion that the uncontroverted evidence justified the decision of the Court of Civil Appeals. That court held that the failure of the railroad company to keep its fences in such condition as to prevent access of stock to its track constituted such negligence as would have entitled appellees to recover had the evidence not shown also that deceased knew that stock was in fact commonly upon the road, and assumed the resulting risk by continuing in the service. Whether or not the defective condition of the fences would have been a ground for recovery by an employe, in the absence of the assumption of the risk, we are not called upon to decide. Assuming that it would, the other proposition is also necessarily true, and the evidence established beyond doubt the fact upon *622 which it depended. It is unnecessary that we add anything to the discussion of that proposition by the Court of Civil Appeals.
The judgment of that court, reversing that of the District Court, will be affirmed and judgment will be here rendered that plaintiffs below take nothing, etc.
Rulings of Court of Civil Appeals affirmed and judgmentrendered.