Montrief & Montrief v. Fort Worth Gas Co.

• Decision Date: 11 April 1928
• Docket Number: (Motion No. 7999; No. 850-4927.)
• Citation: Montrief & Montrief v. Fort Worth Gas Co., 4 S.W.2d 964 (Tex. 1928)
• Parties: MONTRIEF & MONTRIEF v. FORT WORTH GAS CO. et al.
• Court: Texas Supreme Court

4 S.W.2d 964

MONTRIEF & MONTRIEF v. FORT WORTH GAS CO. et al.

(Motion No. 7999; No. 850-4927.)

Commission of Appeals of Texas, Section B.

April 11, 1928.

Error to Court of Civil Appeals of Second Supreme Judicial District.

On motion for rehearing. Motion overruled.

For former opinion, see 2 S.W.(2d) 276.

See, also, 297 S. W. 244.

Thompson & Barwise and B. V. Thompson, all of Fort Worth, for plaintiffs in error.

McLean, Scott & Sayers, Capps, Cantey, Hanger & McMahon, and Slay, Simon & Smith, all of Fort Worth, for defendants in error.

LEDDY, J.

Plaintiffs in error insist in their motion for rehearing that the judgment of the trial court in favor of Henry Bragg against them should be reversed and rendered because the undisputed evidence shows that they were not guilty of negligence, which was the proximate cause of the injury complained of. We are unable to agree with this contention. We think the question as to whether plaintiff in error's negligence was a proximate cause of Bragg's injuries, in the state of the evidence, was properly one for the jury.

It is further insisted that the judgment of the trial court should be affirmed as rendered, because the evidence shows as a matter of law that the Fort Worth Gas Company was guilty of active negligence as against merely passive negligence on the part of plaintiffs in error.

Plaintiffs in error by proper plea asserted the above by way of cross-action against its codefendant, the Fort Worth Gas Company. It did not, however, request that such issue be submitted to the jury, notwithstanding it is admitted that the questions of active and passive negligence were disputed matters of fact. It is asserted that the trial court having rendered judgment for them over against their codefendant, a finding in their favor on such issues will be implied, and article 2190, R. S. 1925, is relied on to sustain this position. This article of our statute, under the construction given it by our Supreme Court, does not...