Southwestern Telegraph & Telephone Co. v. Coffey

WILLSON, O. J. (after stating the facts as above). In its first and eighth assignments appellant complains of the verdict as excessive, and in its second, third, fourth, fifth, sixth, and seventh assignments complains of portions of the closing argument to the jury, made by one of appellee’s counsel, as unwarranted by the testimony and prejudicial to its rights. When considered with reference to the injury suffered by said appellee, we do not think the sum found in his favor is so large as to suggest that the judgment of the members of the jury may have been influenced by passion or prejudice, or any consideration other than a desire to discharge their duty to find in his favor such a sum as would reasonably compensate him for the injury inflicted on him. Parts of the portions of the argument of counsel objected to were, we think, improper, but we do not think such parts were “reasonably calculated to cause, and probably did cause,” the jury to find in appel-lee’s favor a greater sum than they otherwise would have found. Unless wé thought to the contrary, we would not be warranted, without disregarding the rules for the government of this court, in reversing the judgment. Rule 62a (149 S. W. x). The court refused appellant’s request to give to the jury its special charges numbered 4, 8, 19, 13, 15, and 16, and complaint is made of his action in this respect. Said special *114 charge numbered 4 was to find for appellant on the ground that it conclusively appeared from the testimony that appellee had assumed the risk he incurred in the work he was doing at the time he was injured. Said special chárge numbered 16 was that appellee assumed such risk if the manner and means used to place the pole were as open and obvious to him as same were to Busby. We do not think the testimony made an issue as to whether appellee had assumed the risk or not. Therefore it is unnecessary to determine whether the court was justified in refusing the charges on other grounds or not. The special charge numbered 8 was to find for appellant if the jury believed the men and means furnished by it were sufficient to render the effort made to place the pole reasonably safe. The jury in effect were so instructed by the court in his main charge and in the special charge numbered 5 given at appellant’s request. The special charge numbered 10 was that, if Busby, appellant’s manager, in his effort to place the pole was acting as a common laborer, and not as such manager, he was a fellow servant to appellee. But we think the fact that Busby may have been working as a common laborer in the effort to place the pole did not render him any less a vice principal as to appellee, who at the time was subject to his direction and control. Suderman & Dolson v. Kriger, 50 Tex. Civ. App. 29, 109 S. W. 373. The special charge numbered 13 was to find for appellant, if the jury believed the injury to appellee was the result of an unavoidable accident. The court so instructed the jury in his main charge, and therefore properly refused said special charge. The special charge numbered 15, had it been given, would have directed the jury “not to consider plaintiff’s minority as affecting the question as to whether or not it was negligence upon the part of the defendant to have said plaintiff doing the work which he was doing at the time of the accident,” if they believed “he was a bright, intelligent young man, and capable of understanding the situation in which he was placed just prior to the time of the accident as fully and as well as a person of mature years.” In justification of the action of the court in refusing to so instruct the jury, it is enough to say that in the charge he gave them he required the jury to find in appellant’s favor, unless they believed- it had been negligent, in that it had not furnished “a reasonably sufficient number of hands to erect said pole with reasonable safety to themselves,” or in that it had not furnished the men who engaged in the work “with tools and appliances reasonably suitable to erect said pole with reasonable safety to themselves.” As we think the court should not have given said special charges, or any of them, we overrule appellant’s ninth, tenth, eleventh, fourteenth, fifteenth, and sixteenth assignments. In his main charge the court told the jury: “It was the duty of Ross Coffey to use ordinary care, while assisting in the erection of the poles for the benefit of the defendant company, for the protection of his own person against damage or injury, and he had the right to assume without investigation that the defendant company would exercise ordinary care to furnish a reasonably sufficient number of hands to erect poles for the benefit of the company, and that said company would also exercise ordinary care to furnish the employes engaged in erecting said poles with reasonably suitable tools and appliances to enable them to do the work with a reasonable degree of safety to themselves.” The instruction (or rather, we take it, that portion of it that told the jury ap-pellee had a right to assume without investigation that appellant had not been guilty of negligence in the particulars specified) is attacked as erroneous on the ground that there was evidence, appellant asserts, which would have supported a finding that appellee knew and appreciated “the dangers attendant upon the doing or attempted doing of the work with such number of men and tools used.” Unquestionably it appeared that ap-pellee knew the number of men and kind of tools furnished by appellant with which to do the work. But he testified, and there was no testimony to the contrary, that he had never before assisted in that kind of work, and, as we view the record, there was no testimony tending to show that he knew it was dangerous to engage in it with the number of men and with the tools furnished for the purpose. Therefore we are of the opinion that the error, if any, in the instruction, was not such as to require a reversal of the judgment. Other objections urged to portions of the court’s main charge are not more meritorious than the one just referred to. The assignments presenting them are overruled. The action of the court in overruling special exceptions to certain allegations in the petition, on the ground that same were vague, indefinite, and uncertain, is made the basis of appellant’s twentieth,' twenty-eighth, twenty-ninth, thirtieth, and thirty-first assignments. Of the special exceptions referred to we are inclined to think the sixteenth should have been sustained; but if the court erred in overruling it, we are sure the error is not one which “was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.” Rule 62a for the government of Courts of Civil Appeals (149 S. W. x.) Therefore the assignments specified are overruled. In its twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, thirty-third, thirty-fourth and thirty-fifth assignments, appellant complains of the action of the court in *115 admitting oyer its objection thereto, certain testimony in said assignments specified. We think the court did not err as claimed, and overrule the assignments. The assignments not specifically disposed of by what has been said are believed to be without merit, and therefore are overruled. Because, as we view it, the judgment is without error requiring its reversal, it is affirmed.