In disposing of this case, we are confronted at the threshold with a question of some difficulty. It is, however, a technical question, — that is to say one involving the construction of the laws which fix the jurisdiction of this court rather than one of practical importance to the parties to the suit. If we have not jurisdiction of the case, then it must be dismissed and the cause will go back for a new trial under the remand of the Court of Civil Appeals. If we have jurisdiction, then the evidence, as we think, being conflicting upon the issue upon which the case was made to turn and the Court of Civil Appeals having practically set aside the finding of the jury upon that issue, we can neither affirm the judgment of the trial court nor reverse that judgment and render judgment here in favor of the defendant in error.
The Court of Civil Appeals having reversed the judgment of the trial court and remanded the cause, the plaintiff in error, in order to give us jurisdiction, averred in his petition for the writ of error that the decision of the Court of Civil Appeals practically settled the case; and when we granted the writ, we were of opinion that if the plaintiff below was unable to adduce any additional evidence upon the main point at issue, this averment was true. But an examination of the testimony adduced upon the trial, in connection with the opinion of the Court of Civil Appeals, has now led us to a contrary conclusion.
Upon the trial of the case, the question of negligence on the part of the defendant in error depended upon the further question, whether Jester, its superintendent, had any reasonable grounds to anticipate that the carpenters of the original contractor would go upon the floor to work before the panel, the falling of which caused the injury, had time to harden. There was no evidence that the floor had been formally turned over to the main contractor as finished by the defendant in error; and there was direct evidence to the effect that the carpenters were on the day of the accident and had been for several days before, on another wing of the building. On the other hand, the plaintiff testified: "I don't know how long that piece that I fell through had been there; but we had been at work on it several days — a week or two. * * * I was employed by Mr. P.T. Shields as a carpenter. He had a good many other employees." Also, in reply to the question, "That flooring had been there several weeks and you had been working on it several days?" he answered "Yes." Again he answered the following question in the affirmative: "State whether or not any of the other *Page 429 employees of defendant Shields had been working on that building a few days prior to the accident."
In reference to this matter, the Court of Civil Appeals found the following facts: "From the time that the scaffolding was removed from underneath until about the time the order to repair the panel was given, the floor may have been used by Shields' employees in performing their work upon the building. But at the time Shields ordered the panel repaired his hands had no work to do in that part of the building, but were working in the south wing and hospital of the asylum." In their conclusions of law they say: "All the panel, which broke through under the weight of defendant in error and his fellow servant, lacked of being completed was time to undergo the natural process of hardening. Nothing more to complete it had to be done by the plaintiff in error, and it was entitled to have the panel let alone and left unmolested by Shields and his servants until sufficient time had elapsed for it to undergo this process. Until then the plaintiff in error must be regarded to have and exercise the same right and control over it as if it were the owner, and not having authorized the defendant in error to go upon it, he took all the risks upon himself for the use he was making of it, and he has no right to complain of the defect which caused his injury, — it being shown by the evidence that plaintiff in error could not have reasonably anticipated that the panel would be used by defendant in error or some other of Shields' servants, at the time and manner it was, before it had become sufficiently hardened to sustain their weight. Shearm. Redf. on Neg., sec. 705; Dobbins v. Railway, 91 Tex. 60; Railway v. Bigham,90 Tex. 225. Therefore we conclude that the evidence in this case is not sufficient to show negligence on the part of the plaintiff in error, and for that reason the judgment against plaintiff in error company should be reversed and the cause remanded as between it and defendant in error."
If the Court of Civil Appeals had remanded the cause with an instruction to the trial judge, in case the evidence should be substantially the same upon another trial, to direct a verdict for the defendant, then clearly their decision would have practically settled the case, — provided the plaintiff in error, as alleged in his petition for the writ of error, is unable to adduce any additional evidence in support of his cause of action. So, also, if the opinion, without expressly instructing a verdict, had been such as to make it the duty of the trial court to give such instruction — for example, if the Court of Civil Appeals had announced that there was no evidence of negligence — we would have been bound, under the allegations in the petition for the writ, to have taken jurisdiction of the case. But we do not so construe the opinion. It was within the power of that court to disregard a finding of fact by the jury if contrary to the great weight of the credible testimony, and in effect to set aside the finding and to remand the cause, and we understand them to mean that under the facts found by them under the evidence, there was no negligence. They reversed the judgment because *Page 430 the evidence of negligence was not sufficient, not because there was in their opinion no evidence of negligence. Under this ruling, the trial judge, in the event the testimony should be the same on another trial, might feel it his duty to grant a new trial, but he would not be constrained to instruct a verdict.
Such being our construction of the opinion of the Court of Civil Appeals, the case falls within the rule laid down in Choate v. Railway, 91 Tex. 406, and not within that of Lee against the same company, 89 Tex. 583.
We conclude that the decision of the Court of Civil Appeals does not practically settle the case and that we therefore erred in granting the writ of error.
The cause is accordingly dismissed.
Dismissed.