Texas Midland R. R. v. Monroe

229 S.W. 349, 1921 Tex. App. LEXIS 25

• Court: Court of Appeals of Texas
• Decided: March 21, 1921
• Docket: No. 2391.
• Status: Published

Opinion

WIDLSON, C. J.

(after stating the facts as above). The main contention on this appeal, and only one, except one that the judgment is excessive, is that the trial court erred when he refused to render judgment for appellant on the findings of the jury and instead rendered judgment for appellee. The contention is predicated on the third finding, to wit, that appellee requested appellant’s conductor to show him how the safety on the pistol was operated. Assuming the fact to be that the pistol was discharged by the conductor while he was complying with said request, appellant urges that the effect of the finding was to determine that the conductor had gone outside his duty as such and was acting for appellee when he fired the pistol and wounded appellee. But we think the assumption is not warranted by the record, and for that reason, if-there is none other, the insistence should be overruled. There was testimony that' the pistol could not be discharged without the concurrence of two things: First, the manipulation of the safety device to the proper position; and, second, the pulling of the trigger. It might have been necessary in order to demonstrate how the pistol operated, which the jury in their fourth finding said appellee did not request the conductor to do, to do both those things; but it was not necessary to pull the trigger to- show how the safety device operated. Therefore the assumption of appellant that the pistol was discharged by the conductor while complying with appellee’s request not only was not warranted by the third finding, but is in the face of finding involved in the judgment, if necessary to support it, directly to the contrary (Vernon’s Statutes, art. 1985), and in face of the fourth finding set out above and of the fifth finding, that appellee was not guilty of negligence. The acts of negligence on the part of the conductor which resulted in the injury to appellee were: (1) In failing, to ascertain whether the pistol was loaded or not before he undertook to demonstrate how it operated. (2) In pointing it at appellee while making the demonstration. (3) In pulling the trigger while pointing the pistol at appellee. There is no testimony in the record that appellee requested the conductor to do any of those things.

We have considered the testimony material to that issue in connection with the contention that the judgment is excessive, and think the contention should be overruled.

The judgment is affirmed.