
    GOODSON v. HOUSTON & T. C. R. CO.
    (No. 613.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 26, 1916.)
    1. Tbial <@=3362 — 'Verdict— Correction by Juby After Discharge.
    After a jury was discharged,' its verdict could not be reformed by changing the answer to a special issue from “no” to “yes,” although the jury appeared in open court in a body and asked the court in writing to make such change.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 865-868; Dec. Dig. <@=3.362.]
    2. Master and Seevant <@=>297(2) — Verdict —Inconsistency in Findings.
    That a 'jury, by finding on. a special issue that plaintiff’s injury was not directly caused by the fall which was claimed due to 'défendant’s negligence, made their verdict one for the defendant, did not make it conflicting and inconsistent, because thereafter in the same verdict there was a finding as to the amount of damages suffered.
    [Ed. Note. — For other cases, see' Master and Servant, Cent. Dig. § 1196; Dec. Dig. <@=> 297(2).]
    8. Appeal and Eeeoe <@=>501(4) — Record — Showing Application pob Submission op Special Issues.
    Where the record does not disclose that assignments of error for refusing to give special charges requested are supported by bills of exceptions showing proper and timely application to the court for such submission, the assignments are not reviewable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2304; Dec. Dig. <@=>501(4).]
    4. Appeal and Eeeoe <@=>501(4) — Necessity op,Objections in Court Below — Instructions.
    Where the record does not disclose that the trial court’s charge complained of was objected to and exception taken as required by statute, alleged errors in the charge are not reviewable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2304; Dee. Dig. <@=>501(4).]
    5. Appeal and Eeeoe <@=>1170(11) — Reversal — Prejudice to Appellant’s Substantial Rights.
    Judgment for defendant in an action for injuries caused by a negligently constructed scaffold was not reversible for refusal by the trial court to grant a new trial because judgment for defendant was contrary to the law and evidence, where the evidence, although disputed, was so meager upon whether plaintiff’s fall from' the scaffold caused his injuries as to justify an instructed verdict for defendant, in view of rule 62a (149 S. W: x), forbidding reversal for errors not prejudicial to appellant’s substantial rights.
    [Ed. Note. — For other. cases, see Appeal and Error, Cent. Dig. §§ 4066, 4544; Dec. Dig. <S=> 1170(11).]
    Appeal from. District Court, Burleson County; Ed. R. Sinks, Judge.
    Action by Charles A. Goodson against the Houston & Texas Central Railroad Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. M. Hilliard, of Caldwell, for appellant. Bake^, Botts, Parker & Garwood, • of Houston, R. S. Bowers, of Caldwell, and Stribling & Stribling, of Waco, for appellee.
   HARPER, C. J.

Appellant sued the appel-lee in the district court of Burleson county to recover damages on account of personal injuries alleged to have been received by him while in the employ of appellee as a member of a bridge gang in repairing a bridge on its main line near Mexia, Tex.; the injuries complained of being double hernia, alleged to have been sustained by reason of falling from a- scaffold constructed under the bridge by his fellow workmen, and from which he fell by reason of the unsafe condition of the scaffold, made so through the negligence of his fellow workmen, whose duty it was to construct the scaffold in a proper manner. The scaffold consisted of a long plank resting on crosspieces of timber suspended from tbe bridge beams by ropes; and tbe unsafe condition of tbe scaffold was caused by bis fellow workmen placing tbe plank on tbe crossbeams in such a manner that, when be got on tbe scaffold and walked toward one: enct of it, tbe bending of tbe plank from bis weight caused it to slip off at one end and throw him to tbe ground, which caused double hernia.

Tbe appellee, aside from general and special exceptions and a general denial of n'eg-ligence, interposed pleas of contributory negligence and assumed risk. Tbe ease was submitted to tbe jury upon special issues by .the following charge of tbe court, which issues were answered .as indicated by tbe answer set opposite each special issue. The court, upon tbe findings of tbe jury, rendered judgment for the defendant.

“Special Issue No. 1: Did the plaintiff, Chas. A. Goodson, fall from a platform erected by the defendant company while working, upon one of its bridges.? Ans. Yes.
•“Special Issue No. 2: If you answer ‘Yes’ to special issue No. 1, then did such fall directly cause the hernia which the plaintiff.had? Ans. No. • /
“Special Issue No. 3: Was the defendant guilty of negligence in the erection of the platform upon which the plaintiff was working -at the bridge? Ans. Yes.
“Special Issue No. 4: Was the platform upon which the plaintiff was working unsafe for a person to work upon? Ans. Yes.
“Special Issue No. 5: If to special issue'No. 4 you answer .‘Yes,’ then was the unsafety of the same known to the plaintiff? Ans. No.
“Special Issue No. 6: If you answer to special issue No. 4 that the said platform-was unsafe, then was its unsafe condition open and obvious to the plaintiff? Ans. Yes.
“Special Issue No. 7: Was the plaintiff guilty of contributory negligence' in causing the injury, if any, to himself? Ans. Yes.
“Special Issue No. 8: If you find that the plaintiff had' been injured,, and thereby suffered damages, then how much damages has he sustained? Ans. $455.00.
“In connection with special issue No. 8 you are instructed, as to damages, that the same should be assessed at such sum of money as, if* paid in hand at this time, will fairly and justly- compensate him for the injuries alleged by him in. his petition, and which you find from the evidence he has sustained, if any; and in^ doing so you will take into account the mental’ and physical pain suffered by him, and that will be suffered by him in the future, on. account thereof, if any, and the earnings lost by him up to this time on account thereof, if any:
“In this connection you are charged that if you find that the defendant has been guilty of negligence, and you further find that the plaintiff has been guilty of contributory negligence, then, as to the damages, you will diminish the same in proportion as to the negligence of the defendant and of the plaintiff, if any.”

Tbe next morning after this verdict and judgment was rendered, and after they bad been discharged, tbe jury appeared in open court in a body, and, by writing, asked tbe court to reform tbe verdict, so that tbe answer to special issue No. 2 would be “Yes,” and that tbe answer to special issue No. 6 would be “No,” and counsel for appellant requested tbe court to swear them, both of wbicb was refused. Tbis refusal is. urged as. error, by assignments 1 and 2. Tbis was not error. “Tbe Supreme Court of tbis state bás adopted tbe broad rule that jurors will not, in civil cases, be permitted to 'attach tbeir verdicts in tbis way.” Railway Co. v. Ricketts, 96 Tex. 71, 70 S. W. 315. Tbis might' have ’ been done' prior to tbeir discharge from the. case, but not afterwards. Hirsch v. Jones et al., 42 S. W. 604.

Tbe third is that tbe verdict does not am tborize judgment for defendant, but that judgment should have been for tbe plaintiff. Tbe fourth is that the verdict is inconsistent and conflicting, and therefore will not sup* port judgment-for defendant. The fifth is that tbe court erred in rendering judgment contrary to tbe intentions of tbe jury.

It is apparent that,the jury intended to give tbe plaintiff a verdict for $455, but tbe question here is: Did they find tbe necessary facts in bis favor upon wbicb to predicate a judgment? To enable the court to find for plaintiff tbe jury must, under tbe law, have first found by tbeir verdict that tbe injuries complained of were directly and proximately caused by tbe fall from tbe alleged unsafe platform; tbis they have not done, but have in fact found to the contrary. Tbe fact that tbe jury have found tbe facts .to be such that it is a verdict for tbe defendant does not make it conflicting and inconsistent because thereafter, in tbe same verdict, there is a finding as to tbe amount of damages suffered. ■

That the jury might, under a general, 'charge, find a verdict for damages in favor of a plaintiff, without first having found tbe facts upon wbicb such verdict in his favor could be based, is tbe reason for tbe statute requiring tbe court to submit tbe cause upon special issues, if requested to do. so by either party to the suit, and permitting him to do so upon bis own motion.

Was tbe judgment entered contrary to tbe intentions of the jury? Tbe appellant says it is, because the jury in a body came into court tbe next day and in writing so informed the court. How did they discover that such was tbe case? Unquestionably, by having received evidence, or argument, or both, after leaving tbe jury box; so to now -bold that because tbe jurymen by next morning, by some means unknown to tbe court, concluded that tbe verdict as rendered immediately after tbe case was submitted was not an exact expression of tbeir intention would in effect be to license attorneys to practice upon jurymen outside of court, and, ií that should be, few causes would be settled by one trial.

Tbe sixth, seventh, ninth, and tenth urge that tbe court erred in refusing to give special charges requested by appellant, and erred in certain particulars in its main charge, and must be overruled for tbe reason that the record does not disclose that the assignments are supported by bills of exceptions showing proper and timely application to the court for submission of the special issues (Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132), nor show that the portion of the court’s charge complained of was objected to and'exception taken as required by statute (Waterman L. Co. v. Phelps, 175 S. W. 742).

The eighth is:

“The court erred in refusing to grant plaintiff a new trial, for the reason that the verdict and judgment is contrary to the law and the evidence in this: The undisputed evidence shows that said platform was negligently constructed by the defendant; second, that this was unknown to the plaintiff; third, that as a result of said negligence of the said defendant said platform fell with the plaintiff, and that he was injured thereby.”

This assignment must be overruled because, if we concede that the undisputed ■evidence shows a negligently constructed ■platform, that the defect was unknown to appellant, and that it fell with him, we are ■nevertheless of the opinion that the evidence is so meager upon the latter, that plaintiff’s injuries were caused by the fall, .as to justify an instructed verdict for the defendant Rule 62a (149 S. W. x).

Eor the reasons given, the assignments are ■overruled, and cause affirmed. 
      S§=>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     