Tweed v. Western Union Telegraph Co.
| Decision Date | 26 June 1915 |
| Docket Number | (No. 3187.),(No. 3189.),(No. 2329.) |
| Citation | 177 S.W. 957 |
| Parties | TWEED v. WESTERN UNION TELEGRAPH CO. |
| Court | Texas Supreme Court |
We have carefully considered the respective motions for rehearing filed by each of the parties to the case, and conclude that both should be overruled.
We adhere to the disposition made of the several questions discussed in the opinion delivered by the late Chief Justice Brown on the original hearing of the case. In that opinion it was stated:
"The facts are not definitely in favor of either party as to authorize this court to enter judgment; therefore we affirm the judgment of the Court of Civil Appeals, and remand the case."
Inasmuch as the effect of the opinion of the Court of Civil Appeals, as we construe it, was a holding by that court that the plaintiff below, according to the undisputed proof, was guilty of contributory negligence as a matter of law, and the cause was remanded for another trial under its judgment, the fact that we affirmed its judgment in remanding and declined to render judgment here for the defendant in error, in connection with the quoted statement from Judge Brown's opinion, sufficiently indicated, we thought, that we did not agree with the conclusion of that court that the undisputed proof showed Tweed to have been guilty of contributory negligence as a matter of law; since, had we agreed with that conclusion, we would have had the authority to render the judgment for the defendant in error under the statement made by counsel for plaintiff in error in their application for writ of error that "the judgment of the * * * Court of Civil Appeals, * * * `practically settled the case.'" The judgment of that court having remanded the cause for another trial, our jurisdiction only attached because of the practical settlement of the case by the opinion of that court; the law governing our jurisdiction in the case being that in force prior to the amendatory act of 1913.
It is due, however, because of the seeming misapprehension of Judge Brown's opinion, that we more definitely state that we do not agree with the conclusion of the honorable Court of Civil Appeals upon the question of Tweed's contributory negligence. We believe that the evidence was such as to require the submission of that issue to the jury. We base this view upon that portion of the testimony which showed that before Tweed went upon the pole, the fall of which caused his injury, the telegraph company's foreman, in Tweed's presence, made an inspection of the pole, and within Tweed's hearing announced, substantially, that it was all right. Granting that it was ordinarily the duty of an employé about to go upon a pole under the circumstances shown to properly secure it by the use of the guy wires and clamps, and that Tweed in this instance failed to take that precaution, still the inspection of the pole by the foreman and his assurance that it was all right made it a question of fact for the jury, we think, whether Tweed's going upon the pole without having previously secured it by guy wires and clamps was an act amounting to contributory negligence.
Notwithstanding our disagreement with the conclusion of the Court of Civil Appeals upon this question, it is plain, under the settled rule of decision, that we have no authority to render judgment here for the plaintiff in error. This proceeds from the jurisdiction of the Court of Civil Appeals to determine the facts of a case, and its undoubted power to set aside the findings of the jury in the trial court, and remand the case for another trial. That was done here, in the clear exercise of the authority of that court. The case of Pollock v. Railway Co., 103 Tex. 69, 123 S. W. 408, the opinion having been delivered by Chief Justice Gaines, clearly controls this question. There upon a favorable judgment for the plaintiff ...
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...evidence. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Tweed v. Western Union Tel. Co., 107 Tex. 247, 166 S. W. 696, 177 S. W. 957; Beck v. Texas Co., 105 Tex. 303, 148 S. W. The case of Missouri Pacific Railroad Company v. Reynolds-Davis Grocery Company, 265 U. S. 577,......
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