Duron v. Beaumont Iron Works

• Decision Date: 01 November 1928
• Docket Number: (No. 922-5009.)
• Citation: 9 S.W.2d 1104
• Parties: DURON et al. v. BEAUMONT IRON WORKS.
• Court: Texas Supreme Court

9 S.W.2d 1104

DURON et al. v. BEAUMONT IRON WORKS.

(No. 922-5009.)

Commission of Appeals of Texas, Section B.

November 1, 1928.

On motion for rehearing. Former judgment set aside, and judgments of the district court and Court of Civil Appeals (297 S. W. 1075) reversed and cause remanded to district court for a new trial.

For former opinion, see 7 S.W.(2d) 867.

Howth, Adams & Hart, of Beaumont, for plaintiffs in error.

Crook, Lefler, Cunningham & Murphy, of Beaumont, for defendant in error.

LEDDY, J.

We adhere to the views expressed by us on the two questions discussed in the original opinion, but have concluded that we were in error in affirming the judgment of the trial court.

The Court of Civil Appeals (297 S. W. 1075) reversed and rendered the judgment of the trial court awarding plaintiff in error a judgment against defendant in error. Having reached the conclusion in our original opinion that the Court of Civil Appeals was in error in rendering such judgment in favor of defendant in error, we would not be authorized to affirm the judgment of the trial court if defendant in error urged in that court any assignment presenting reversible error. We are convinced by the motion for rehearing that defendant in error's assignment complaining of the refusal of its special issue No. 8 should have been sustained.

The trial court, at the request of the defendant in error, submitted special issue No. 1, which reads as follows:

"Gentlemen of the Jury: You will find the following issue of fact: Did the plaintiff, Robert Duron, have sufficient intelligence and ability to understand the dangers incident to going near, touching or playing with said machinery?"

Special issue No. 8, requested by defendant in error, sought to place the burden of proof upon plaintiff in error on the above issue. The requested instruction reads as follows:

"Gentlemen of the Jury: On the issue of the plaintiff, Robert Duron's intelligence and ability to understand the danger incident to going near, touching or playing with said machinery, the burden of proof is on plaintiff to show by a preponderance of the evidence that said Robert Duron did not have sufficient intelligence to understand the dangers incident to going near, touching or playing with said machinery and unless you believe the preponderance of the evidence establishes that fact, you will answer defendant's special issue No. 1 in the affirmative."

We think the Court of Civil Appeals should have sustained the assignment complaining of the trial court's refusal to give this instruction. While the burden of proof was on the defendant in error to establish...