258 S.W. 227 | Tex. App. | 1924
The opinion of the Commission of Appeals on the former appeal of this case (Landers v. West Lumber Co., 239 S.W. 195), reversing an opinion by this court in the same case (Van Landers v. West Lumber Company,
Since the first trial of this case, H. Landers, the father of Van Landers, has died, and the mother of Van Landers was substituted as plaintiff, in lieu of his deceased father. In all other respects, the pleadings are identical with the pleadings on the former appeal.
On the trial of this case this time, judgment was entered for Van Landers for $5,500, and for his mother in the sum of $500. In its brief, appellant says:
"It conclusively appears that the records of these two trials are practically the same, in substance."
The analysis of the facts of this case by the Commission of Appeals in relation to the pleadings and its conclusions thereon are the law of this case, and therefore, as the facts of the two trials are the same, it is not necessary that we restate the evidence.
The Commision of Appeals said:
"We therefore recommend * * * that this cause be sent back to the district court for a new trial in accordance with this opinion, upon the question of failure to warn the minor, plaintiff, and as to whether the father had as a matter of fact consented to his son's employment by the defendant."
These two issues were submitted to the jury under the following questions:
(1) "Was the defendant, West Lumber Company, guilty of negligence in failing to warn Van Landers of the danger, if any, of being hurt by the cogwheels in question and the extent of that danger, or in failing to instruct Van Landers how to perform the work he was then engaged in, so as to avoid injury to himself?" Answer: "Yes."
(2) "Was such negligence, if any, on the part of the defendant, West Lumber Company, the proximate cause of the injury received by the plaintiff Van Landers?" Answer: "Yes."
(4) "Was either the plaintiff Mrs. Selesta Landers or her husband, H. Landers, now deceased, aware of the conditions under which their minor son, Van Landers, was working at the time he was hurt and of the risk incident thereto?" Answer: "No."
(5) "Was either the plaintiff Mrs. Selesta Landers or her husband, H. Landers, now deceased, guilty of contributory negligence in permitting their son, Van Landers, to continue at work, with full knowledge of the conditions under which he was working and of the risks incident thereto, if you find from the evidence that they, or either of them, had such knowledge prior to the time Van Landers was injured?" Answer: "No."
Under the opinion of the Commission of Appeals, we hold that these issues were raised and the answers of the jury supported by the evidence. The issues as submitted were not on the weight of the evidence. *228 Appellant conceded that it had given no warning to Van Landers of the dangers of his employment. It appears without controversy that Van Landers was engaged in dangerous work. Therefore the court was justified in assuming the matters which appellant says made the issues on the weight of the evidence.
The judgment of the trial court is in all things affirmed.
