
    KIRBY LUMBER CO. v. HARDY.
    (No. 18.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 6, 1916.)
    Trial <§⅛>234 — Instructions — Requiring Jury to Eind as to Specified Facts.
    Where there was testimony in a negligence case which, if believed by the jury, would have entitled them to find for the defendant on account of contributory negligence, it was error for the court to refuse to give a special instruction requested by the defendant affirmatively requiring the jury to find whether the evidence established the existence of a specified group of facts which, if true, would in law establish his- plea.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 53A-538, 566; Dec. Dig. <S=>234.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by W. A. Hardy against the Kirby Lumber Company. From a verdict for the plaintiff, the defendant appeals.
    Reversed and remanded for a new trial.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Powell & Huffman, of Jasper, for appellee.
   BROOKE, J.

This suit was brought in the district court of Jasper county, Tex., by W. A. Hardy, as plaintiff, against the Kirby Lumber Company, as defendant, to recover damages for personal injuries alleged to have been sustained by him on or about the 13th day of November, 1912, while in the employ of the Kirby Lumber Company in the logging branch Of its business. The jury before whom the case was tried returned their verdict for plaintiff in the sum of $4,000, and judgment was accordingly rendered thereon in plaintiff’s favor.

The Kirby Lumber Company duly filed its original motion for new trial, and thereafter its first amended original motion for new trial, which was by the court overruled. To the ruling of the court last mentioned the Kirby Lumber Company in open court duly excepted and gave notice of appeal to the Court of Civil Appeals at Galveston, and thereafter filed its supersedeas bond, and perfected its appeal to that court, and the cause was transferred to this court, and is now before us for adjudication.

The plaintiff was employed by the Kirby Lumber Company as a grabsetter. His place of work was in the woods, where the logs which ha<j. been cut were being carried or dragged by means of log carts, to the tram-road for loading on the cars and transportation to the mill. These log carts are of skeleton construction, consisting mainly of two wheels, an axle, a slip tongue, a lever, and a set of grabs or hooks. The wheels are about eight feet in diameter, while the distance between the wheel, or the length of the axle, is about six feet. The grabs, or hooks, hang midway between the wheels. The slip tongue controls the grabs. When the tongue is slipped back in the groove in which it works, the grabs are let down to the log, and when the tongue is pulled forward, the grabs are raised. In order to move a log, the log is straddled by the wheels, and the grabs are then let down and hooked by the grabsetter near the center, but slightly towards the front, or team end, of the log. The team is then started forward, and while the cart wheels remain stationary, the log, by means of the slip tongue, is raised from the ground and suspended under the axle, nearly balanced, with the back end touching the ground and the front or team end clear of the ground.

On the occasion of the accident, which occurred about 5 o’clock in the afternoon, the cart team, consisting of four mules, was pulling a log cart and a log about 24 inches in diameter up an incline, when it became stalled. The woods foreman, Mr. Sheffield, coming up and finding the team stalled, proceeded to assist in, or direct, the work of getting the log up the hill. He, himself, put a chock or skotch under the right-hand wheel, and he directed the plaintiff to put one under the left-hand wheel. The cart team was caused to pull alternately to the right and left, and when it would move the right wheel, Mr. Sheffield would move his chock up, and when it would move the left wheel, the plaintiff would move his chock. The process resulted in a considerable hole being worked in the ground by the alternate movement from right to left of the wheels, and the cart team was unable to get the- log up the hill. The team was then backed, slipping the tongue backwards and letting the log to the ground, and with the log on the ground and released from the cart, the cart was moved, or jumped, forward out of the hole. The cart team then pulled the cart forward and again raised the front end of the log from the ground, suspending the log under the axle and between .the wheels. Mr. Sheffield, in the meantime, directed the driver of a bunching team, consisting of two mules, to hitch his team onto the front end of the log. The bunching team was equipped with single trees, a double tree, a chain attached to the double tree, and a pair of tongs or grabs attached to the chain; the team being used to bunch the logs together in the woods. The bunching team was brought up to the right-hand side of the cart mules and hitched onto the log by fastening the tongs to the front end of the log; the front end of the log being at an angle to the left of the bunching team. When this was done and 'the teams pulled forward, the back end of the log was caused to swing around towards the left-hand cart wheel. The plaintiff’s claim was that just as the cart moved, some one, whom he took to be Mr. Sheffield, halloaed to him to take up his chock, and that as he stooped to do this he was injured by the aforesaid movement of the log.

The grounds of negligence charged in plaintiff’s petition and relied upon for a recovery are as follows: (1) That the defendant negligently and carelessly hitched the bunching team to the front end of the log instead of to the cart in front of the cart team. (2) That the defendant negligently and carelessly failed to place a check line on the bunching team to prevent it from pulling crosswise. (3) That the place where plaintiff was required to work was dangerous and unsafe when teams were hitched both to the cart and the front end of the log, and that defendant was negligent in requiring plaintiff to work in such dangerous and unsafe place, in that the defendant failed to use reasonable or ordinary care to provide a safe place or a reasonably safe iJlace for plaintiff to work in. (4) That plaintiff was inexperienced in the work he was doing and did not know of the danger of the log being pulled over against him, and that the defendant in no manner or way notified him, or caused him to be notified, of such danger.

The defendant’s pleading was: (1) That the fact that the bunching team was hitched to the front end of the log and that there was no check line on said team were known to plaintiff, or must necessarily have been known to him by the exercise on his part of ordinary care, and that the risks and dangers arising therefrom were fully known to and appreciated by him; he being a man of mature years, and being present where the work was being performed and able to see with his own eyes and hear with his own ears what was then and there taking place; and that said facts were open, apparent, and visible to him, and the risks and dangers thereof assumed by him. (2) That the manner in which the bunching team was hitched to the log and the manner in which the log was moved was in all respects a proper, usual, and customary method of doing said work; that in the operation of moving the logs from place to place, whether pulled by a cart team alone or by a cart team and bunching team, the logs would, as a usual, customary, and frequent thing, move from side to side so that any one near the same might be caught or injured thereby, unless a sufficient distance therefrom to be out of the way of such movements ; that the risk and danger from movements of the log were incident to the work and fully known to and appreciated by the plaintiff, and that such risk and danger were by plaintiff assumed. (3) That if the plaintiff’s place of work was unsafe by reason of the manner in which the teams were hitched to the cart and log, nevertheless it was apparent to plaintiff that the team was hitched to the log and he could see that such was true, and the risks and dangers arising therefrom were open, apparent, and visible to him, and were in all things assumed by him. (4) That plaintiff was guilty of contributory negligence for the reason that, instead of getting out of the way of the log as he could and should have done, he carelessly permitted the log to strike him, when before it was moved he could have stepped to a place of safety and gotten entirely out of the way of danger. (5) That if, as alleged by plaintiff, the log in question was turned to the side or crosswise and such was the result of any negligence upon the part of the driver of the bunching team or the driver of the cart team, such negligence was that of plaintiff’s fellow servant.

We shall not discuss the various assignments of error that are relied upon by the appellant for a reversal of this cause, save and except the thirteenth assignment, a consideration of which will dispose of- the case.

By said assignment appellant claims that the court erred to the prejudice of the defendant in failing and refusing to give, in charging the jury, defendant’s special charge No. 3, requested by it, and reading as follows, to wit:

“Gentlemen of the Jury: You are charged in this ease, that if you believe from the evidence that the plaintiff, W. A. Hardy, upon the occasion in question, saw the bunching team being hitched to the log in question, and knew that said bunching team was hitched thereto, and you further believe from the evidence that the said W. A. Hardy then and there knew that when said bunching- team pulled on said log, the said log would be turned or caused to swing towards the left-hand wheel of the cart, or if you believe that said W. A. Hardy, in the exercise of ordinary care on his part, must necessarily have known that when said bunching team pulled on said log the said log-would thereby be caused to turn or swing towards said left-hand cart wheel, then and in such event you are charged that the said Hardy then and there assumed the risk of being injured by said log, and your verdict must in such event be in favor of the defendant, Kirby Lumber Company.”

Appellant claims that it was entitled to demand the giving of a charge affirmatively requiring the jury to find whether the evidence establishes the existence of a specified group of facts, which, if true, would in law establish his plea, and instructing them that if they find such group of facts proven, to find in its favor.

The charge of the court in many particulars might justly be said to be open to much of the criticism directed against it. That portion of the charge complained of is as follows:

“(1) And you further believe from the evidence that in hitching the said team to the said log in the manner and way it was hitched was negligence on the part- of the defendant in so hitching and pulling said log.
“(2) And you further believe from the evidence that in hitching the bunching team to the log which was suspended between the wheels increased the danger, if any, and made the place in which the said Hardy had to work in order to scotch the wheel ⅜ ⅜ ⅜ more dangerous and hazardous.
“(3) And you further believe from the evidence that by reason of hitching the team to the front end of the log to assist the main team to pull the same, in the way and manner it was hitched to said log, and causing said teams to pull the said log, was negligence on the part of the defendant.
“(4) And in so hitching to and pulling said log as aforesaid was the proximate cause of the injury.
“(5) And you further believe from the evidence that at the time the team was ordered to pull the said log the said Tom Sheffield knew, or by the use of ordinary eai-e and diligence ought to have known, that the plaintiff was scotching the said wheel * * * and in a dangerous position ⅜ * * and he failed to warn him of the danger.
“(6) And if you believe that said defendant in moving said log from said position * * * under all the evidence before you was guilty of negligence.
“(7) Then you will find for plaintiff, provided you further find from the evidence that the negligence of the defendant, if any, was the proximate cause of the injuries to plaintiff.”

It will Jbe noted that the charge of the court nowhere undertakes to apply affirmatively the law to the evidence adduced in support of the plea of the defendant (appellant). It is said by Judge Denman, in the case of M., K. & T. Ry. Co. v. McGlamory, reported in 89 Tex. 639, 35 S. W. 1059, that:

“Defendants had the right to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of any specified group of facts which if true would in law establish such plea, and instructing them- that if they found such group of facts to be established by the evidence, to find for defendants. And this would be true if proper charges had been asked as to each of the several special pleas of contributory negligence presented by the record. Any other rule would deprive litigants of their right to have the court explain to the jury the principles of law applicable to the very facts constituting a cause of action or defense so that they may intelligently pass upon the various complicated issues frequently presented for their determination in one case under our practice. Railway Co. v. Shieder, 88 Tex. 166 [30 S. W. 902, 28 L. R. A. 538],
“This rule does not permit a litigant to annoy the court or confuse the jury by special charges upon the weight of or giving prominence to each circumstance introduced tending to support his cause of action or defense, but requires him at his peril to present in such special charge for the consideration of the jury a fact or group of facts which, if found by them from the evidence to be true, establishes, in law some material issue presented by the pleading.”

Judge Williams, in the case of St. L. S. W. Ry. Co. of Texas v. Hall, 98 Tex. 488, 85 S. W. 790, used the following language:

“As we have stated, there was no instruction given affirmatively calling to the attention of the jury any view of the facts which would acquit the defendant of liability, except that upon the subject of contributory negligence. That a party is entitled, when he requested by correct instructions, to have the facts establishing his cause of action or gu-ound of defense, with the law applicable to them, affirmatively stated by the court to the jury, is the settled rule of practice established by many decisions of this court. Texas T. Ry. Co. v. Ayres, 83 Tex. 269 [18 S. W. 684]; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639 [35 S. W. 1058]. It is no answer to a complaint that this was not done that the jury might negatively have inferred the proposition expressed in the request from the instructions stating the case of the opposite party. The right is, upon proper request, to have the law plainly and affirmatively stated in its application to facts supported by evidence under which the party would be entitled to a verdict. The instruction in question was applicable to a view of the evidence which the jury might have taken, and the rule on the subject required that it be given, if it truly stated the law. We are unable to see wherein it is incorrect. It refers, it is true, to particular facts, but submits to the jury whether or not those facts existed, and constituted negligence on the part of the defendant. It has no reference to the question of negligence on the part of plaintiff, and lays down no rule on that subject, but mer'ely seeks an appropriate instruction on the question of defendant’s negligence.”

From the facts in the instant case, we are of opinion that it was error in the court to refuse to give the special instruction asked by the defendant, as there was testimony, which, if believed by the jury would have entitled them to find for the defendant. We sustain this assignment.

The ease will have to be tried again, and we have therefore refrained from any comment upon the testimony. The case is therefore reversed and remanded for a new trial. 
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     