City of Austin v. Forbis

• Decision Date: 23 October 1905
• Citation: 89 S.W. 405
• Parties: CITY OF AUSTIN et al. v. FORBIS.
• Court: Texas Supreme Court

89 S.W. 405

CITY OF AUSTIN et al. v. FORBIS.

Supreme Court of Texas.

October 23, 1905.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by Frank H. Forbis against the city of Austin and others. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals (86 S. W. 29), and defendants bring error. Reversed.

W. D. Hart, for plaintiffs in error. G. W. Allen, for defendant in error.

GAINES, C. J.

The following statement of this case as made by the Court of Civil Appeals is sufficiently full for the purposes of this opinion: "This is a suit by appellee against the city of Austin and the Austin Water, Light & Power Commission, composed of George Fiegle, D. W. Doom, P. W. Powell, P. D. Mortimer, and R. E. White, for damages resulting from injuries sustained by the appellee when he was engaged in the services as an employé of the city and the water, light, and power commission, in connection with the city's electric system. The petition alleges substantially that he was severely burned by coming in contact with one of the city's electric wires, while engaged in repairing the wires in what is known as construction work. He in effect alleges that he was inexperienced in the particular work in which he was engaged at the time he was injured, and that he did not know of the danger, and was not warned by the foreman under whom he was working at the time he received the injuries. The specific grounds of negligence alleged against the city and the water, light and power commission are (1) failure on the part of the foreman to give the appellee instructions as to how to perform the particular work assigned to him; (2) not having a sufficient number of men detailed to perform the work which the appellee and one of his colaborers had undertaken and were instructed to perform; (3) in the failure of the foreman, or those in charge of the electric plant, in not having the current of electricity cut off before putting appellee to work in changing the wires; (4) in not having a careful inspection made of the wires, and seeing that they were properly insulated, and alleges the fact that the wires were not insulated, and the negligence of the city in failing to have them so protected; (5) in employing and having an inexperienced foreman in charge of appellee and his co-workmen. The appellants answered by general demurrer and general denial, and specially pleaded contributory negligence and assumed risk; that the plaintiff knew of the condition of the wire upon which he was working, and knew that the current of electricity was on, and had the authority to have the same cut off, which he failed to do; and that he knew of the danger and assumed the risk incident to his employment." There was a verdict and judgment for the plaintiff.

When we granted the writ of error, we thought that the trial court erred in admitting the testimony of one Felter as to a conversation which took place, about two hours after the incident, between George Fiegle, the president of the water and light commission, and George Fiegle, Jr., the city electrician, and we are still of that opinion. It is urged, however, that the question is not so presented by the record that we can consider it, for the reason that it is not sufficiently pointed out in the motion for a new trial as one of the grounds of the motion. The sixth specification in that motion is that "the court erred in admitting the testimony set out in defendants' first, second, third, fourth, fifth, and sixth bills of exceptions, because the testimony set out in each of said bills was subject to the objections urged against it in each of said bills."

In reference to motions for new trials, article 1371 of the Revised Statutes of 1895, provides: "Every such motion shall be in writing and signed by the party or his attorney, and shall specify the grounds upon which it is founded, and no grounds other than those specified shall be heard or considered." Rules 67 and 68 of rules for the district and county courts are as follows: "(67) Each ground of a motion for a new trial or in arrest of judgment shall briefly refer to that part of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designed to be complained of, in such way as that the point of objection can be clearly identified and understood by the court. (68) Grounds of objections couched in general terms—as that the court erred in its charge, and in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the jury...