The writer concurs in the holding that the plaintiff has pleaded and the facts adduced have established an issue of liability because of the undisputed facts relating to the placing of the dynamite cap on the engine of the truck, negligently leaving it so attached, and its subsequent explosion and injury to plaintiff.
The writer is unable to see the force of the argument to the effect that the prank sought to be played by employee Rowe on employee Keel "did not fail". Rowe made no effort to and did not intend to play a prank upon the plaintiff, nor upon any other person than Keel. When the cap did not explode, while Keel was operating the truck, it seems to be clear to the writer that the prank failed.
But the fact remains that Rowe and at least one other employee knew that this dangerous instrumentality was wired to the truck that Keel was operating, and they not only saw him drive off with this dangerous thing under the hood of the truck, but they knew that he drove the truck during the remainder of that working day with it thus attached.
Assuredly it was the duty of Rowe and of the other employee, for that matter, to either call Keel's attention to the fact that the cap was there, so that he could remove it, or they should have removed it.
Most certainly they were in possession of the fact of the presence of the unexploded cap, after they resumed work and it does not seem to the writer that the fact that the knowledge of the presence of the cap was obtained when Rowe was not acting within the scope of his employment, serves to relieve the employer because this knowledge continued in the minds of these two employees, after the planned prank *Page 705 "failed" and after they resumed their places in the ranks of the employees.
Knowing that a very dangerous thing was attached to a vehicle belonging to the master, they and each of them ought to have foreseen that injury could or would occur to some person engaged in using, or in working upon, or in repairing the truck.
The duty devolved upon Rowe and any and all other employees to exercise a very high degree of care to see that this dangerous agency was either used or cared for in such a way as to avoid, or prevent, injury to any person.
In the instant suit, we have the undisputed negligence of at least two employees, who omitted to perform a duty when they were in possession of all of the facts relating to the very dangerous instrumentality and its presence, and the further fact that, in all probability, some person would, could or might be injured by it, if it were allowed to remain attached to the truck.
It seems to the writer that the mere fact that the servant learned of the whereabouts of the dangerous agency at a time when he was then not actually engaged in carrying on the business of his master, i.e., when not acting within the scope, or apparent scope, of his employment, can furnish no avenue of escape from liability for the master, when the servant resumes his labors, with full knowledge of the whereabouts of the dangerous instrumentality, and with full knowledge that it is his duty to safely guard it; and his negligent act of omission to perform a duty, under the undisputed facts in this case, renders the master liable, according to the writer's opinion.
Let us illustrate what is intended to be conveyed here: Suppose Rowe had been called upon, by Keel, to take the truck (to which Rowe had attached the dynamite cap) to the plaintiff for repairs. He learned of the presence of the cap at a time when he stepped aside from his labors and duties — when he was not engaged in the doing of any work for the master — in fact, he acquired this knowledge when he was attempting to play a prank on Keel — but could it be successfully contended that, under the duty devolving upon him, the master would not be liable to the plaintiff, if Rowe had stood mutely by and permitted the plaintiff to work on the truck with the dangerous dynamite cap attached to it and under its hood? We think not.
Then, what difference does it make that Rowe and the other employee, seeing that the planned prank on Keel had failed, stood idly by and permitted Keel to drive it for the remainder of the working day, with the result that it caused the motor to "miss" on the cylinder nearest the attached cap and necessitated the taking of the truck to a mechanic for the repairing of the motor, all of which resulted in the explosion that blinded the mechanic? We think there is no difference in principle because the negligent act of omission of an undoubted duty that must have necessarily been a continuing one is made manifest by the undisputed evidence.
If the majority are right in their conclusions as to liability, then there are no reversible errors presented in the points complaining of the admission of evidence not bearing upon the real issue of liability and complained of as prejudicial to the rights of the defendant, and the argument of counsel complained of likewise as prejudicial and inflammatory.
If our theory of the law in this case is correct (and the case is one of first impression in Texas, in the writer's opinion), a verdict of no negligence on the part of the defendant, and that of no proximate cause of the injury to plaintiff, could not be permitted to stand, in the face of the undisputed facts.
We are unable to see how a jury of normal-minded citizens could do less than find liability.
The undisputed facts compel such a finding. It is inescapable, in our opinion.
What has been written is bottomed on the issue of liability. If under the undisputed facts, as is contended by the defendant, there is no liability, as a matter of law, or even if the issue of liability is one that can be strongly contested, under the undisputed facts — one that the jury may determine either one way or the other, because of conflicts in the evidence — then the writer is frank to say that the following portions of the opinion would not be written: That is to say, if there were conflicting testimony on the issues of liability and proximate cause, then the writer would join in a holding that inadmissible testimony — testimony that bears no relationship to the actual issues raised and on which plaintiff must recover and calculated to prejudice the jury — requires a reversal of the judgment, even though there be no complaint of excessiveness in the verdict, and if the verdict shows upon its face that it is not excessive, when viewed in the light of plaintiff's injuries. *Page 706
The observations made as to testimony are likewise applicable to the argument, indulged in by counsel, and predicated on the inadmissible testimony and that indulged in on the theory of deductions and conclusions of counsel, and all calculated to prejudice or inflame the minds of the jurors.
But here we have a case wherein (to the writer's way of thinking) none of the testimony of which complaint is made and none of the argument that appears to have been unwisely made could have lent any weight to the stark fact that the plaintiff was rendered totally blind through the negligent act of one who should have protected him against injury but who, unmindful of his unquestioned duty, negligently omitted to perform that duty.
Evidence of scores of negligent acts not pertinent to the real issue in this case and argument bottomed thereon, or uttered as a deduction or conclusion of counsel, could not possibly arouse more sympathy for the plaintiff in the bosoms of the jurors, than the cold, undisputed fact that the light of day has been forever shut out of his life, while he lives in the flesh with nothing much more than his memories, his thoughts and his helplessness.
What then could the inadmissible evidence and the ill-advised argument serve to do?
As the writer views this case, it could have had no effect other than to bring about an excessive verdict.
Here there is no contention that the verdict is excessive. Not only is this so but it affirmatively appears that it is not excessive.
No man, of average intelligence, would give his ability to see for such a sum as was awarded the plaintiff in this case.
It is apparent to the writer that the jury awarded the plaintiff only one-half of what he prayed for, on the theory that plaintiff had already lost the sight of one eye and that the defendant was not in anywise responsible for such loss. The record bears out this natural conclusion. It is my deliberate opinion that in returning the verdict that was reached in this case, the jury dealt with the plaintiff just as if he had had the sight in both of his eyes, when the injury occurred.
The writer is not contending that the issues of negligence and proximate cause should not have been submitted to the jury, but does say that the undisputed evidence demanded the findings made and that findings to the effect that Rowe was not negligent and that his act of omission of a plain duty was not the proximate cause of plaintiff's injury, could not stand in the light of this record: in the flood-light of undisputed facts.
The writer is of opinion that the holding in the case of Fort Worth Denver City Ry. Co. v. Walters, Tex. Civ. App. 154 S.W.2d 177, writ refused for want of merit, is not authority for a reversal of the instant suit because of inadmissible testimony.
In the Walters case the issues of liability — of negligence and proximate cause — are such that these are sharply contested matters of fact, whereas in the case before us the issues of fact are undisputed.
Furthermore the Walters case was reversed on the finding of several errors in the record, and we understand that our Supreme Court intends to say, in "refusing a writ for want of merit", that there is no merit in the application because the controlling holdings by the Court of Civil Appeals are correct, and that the action of the Supreme Court is not to be taken as an approval of all the holdings, found in the opinion of the Court of Civil Appeals.
The writer asks permission to say that, if there be degrees of error demanding reversals of judgments of trial courts, it is very evident that the error of the trial court in his preparation of the charge, omitting the issue of a new and independent cause, and in his instructions to the jury, after the jurors had returned a verdict with irreconcilable conflicts, far outweighed the error in admitting testimony that bore upon no issue, in the Walters case.
Considering the plaintiff's age, his life expectancy, his training and experience and his earning capacity, it is apparent that the damages awarded him are not excessive, in the case before us.
Rendered totally blind at his age, with a wife and children to support and maintain, his money loss was shown to be great and his mental suffering greater. Plaintiff's injuries are undisputed.
If we understand the holding of the Supreme Court in Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302, 304, the Supreme Court, in holding that the argument, of which complaint is made, constituted reversible error, considered the fact that the extent of Mrs. Smerke's injuries "was sharply at issue." *Page 707
Under such circumstances, the argument was calculated to bring about a verdict for a large sum of money.
The writer does not believe that the argument of which complaint is made in the instant suit had any effect upon the verdict touching liability, or that touching the amount of damages awarded.
Under the undisputed facts in this case and the record before us, I concur in the opinion that if there is error it is harmless and did not, in its very nature, affect the finding of the jury of liability, or the amount of damages.
I vote to affirm the judgment.