35 S.W.2d 749 | Tex. App. | 1930
The appellant contends that it is not liable because (1) there was no negligence, and (2) there was assumption of risk. It is believed the questions so presented became one of fact for the jury's determination. There is, we think, evidence tending to show and authorizing the inference of negligence upon the grounds submitted to the jury in the court's charge. The work the appellee was engaged in was work more or less of a hazardous character, as it required him to be upon the hoisted block, and in undertaking to do the work he assumed the risk incident to the employment in which he was engaged, but he did not assume dangers resulting from the negligence of others. Therefore neither point made in the assignment of error can be sustained as a pure matter of law.
The question of whether or not the appellee was engaged in interstate commerce at the time of his injury became in the record one for decision by the court and not the jury, and therefore any charge given to the jury, or finding by the jury, becomes immaterial of consideration in the appeal, because *753 injury could not be legally predicated thereupon.
We have given full consideration of all the assignments of error presented, and think they should be overruled.
The judgment is affirmed.