189 S.W. 799 | Tex. App. | 1916
"That the defendant owned, used, and operated the said building, and it was its duty to properly secure the screens in the windows thereof so they would not fall upon people who were on the public sidewalk, but, notwithstanding this duty, the defendant negligently caused and permitted the said screen to be so improperly, defectively, and insecurely fastened that it fell and struck the plaintiff, as aforesaid, and such negligence directly, without any fault whatever on the part of the plaintiff, caused the injuries hereinafter stated."
The cause was submitted to the jury on special issues, prepared by appellant, and requested to be given, and upon the answers thereto judgment was rendered in favor of appellee for $15,000.
Appellant requested the submission of three issues, followed by a question as to the amount of damages. The issues, in short, were as to whether appellant was guilty of negligence in so fastening the screen that it fell and struck appellee, and was that negligence the proximate cause of the injuries inflicted upon appellee. The issues were drawn and submitted in the very language of appellant, and yet the three first assignments of error are devoted to an attack, not only on the sufficiency of the evidence to support the answers, but on the ground that there is an utter and entire absence of such testimony. It would occur, it seems, to any one that if there was no evidence to sustain either of the issues, appellant should not have led the court into submitting such issues, but should have requested a peremptory instruction to find for appellant. If there was error in submitting such issues or in the jury answering them in the affirmative, appellant is in no position to assail them. It alone is responsible for the issues going to the jury. Alamo Dressed Beef Co. v. Yeargan,
It would be singular indeed, if a pedestrian on a sidewalk is struck by a falling screen, that the owner of the building from which it fell would not be liable for the injuries resulting from such blow, without direct proof of the negligent manner in which the screen was fastened to the house. Proof that the screen fell would proclaim the fact in unmistakable terms that the screen was insecurely fastened, and the burden rested on appellant to show that it was not negligently fastened, and that the fall occurred from other cause. It is well known that screens do not usually fall from windows, and proof of such fall would raise a presumption of negligence on the part of the owner. The fact that the screen was not securely fastened, not only appeared from the fall, but from the fact that after the accident appellant fixed the screens in its building so that they could not fall. The circumstances surrounding the fall of the screen lead inevitably to the inference that a screen securely fastened will not fall, and the one in question fell. The burden of disproving its negligence in fastening the screen devolved on appellant. The facts in this case lead inevitably to the conclusion that the screen fell because insecurely fastened. There was evidence to the effect that if the screen had been fastened at the top with hinges, it would not have fallen. Railway v. Garven,
It has been held by the Court of Civil Appeals of the First District that it is error for counsel to inform a jury of the effect of their answer in a certain way to certain issues. Fain v. Nelms,
No complaint is made of the amount of the verdict.
*960The judgment is affirmed.