[Mr. Chief Justice Brown, who delivered the original opinion, died while this motion was pending, and Mr. Justice Phillips was appointed as his successor.].
We have carefully considered the respective motions for rehearing filed by each of the parties to the case, and conclude that both should be overruled.
We adhere to the disposition made of the several questions discussed in the opinion delivered by the late Chief Justice Brown on the original hearing of the case. In that opinion it was stated: "The facts are not so definitely in favor of either party as to authorize this court to enter judgment; therefore we affirm the judgment of the Court of Civil Appeals and remand the case." Inasmuch as the effect of the opinion of the Court of Civil Appeals, as we construe it, was a holding by that court that the plaintiff below, according to the undisputed proof, was guilty of contributory negligence as a matter of law, and the cause remanded for another trial under its judgment, the fact that we affirmed its judgment in remanding and declined to render judgment here for the defendant in error, in connection with the quoted statement from Judge Brown's opinion, sufficiently indicated, we thought, that we did not agree with the conclusion of that court that the undisputed proof showed Tweed to have been guilty of contributory negligence as a matter of law; since had we agreed with that conclusion we would have had the authority to render the judgment for the defendant in error under the statement made by counsel for plaintiff in error in their application for writ of error "that the judgment of the Court of Civil Appeals practically settled the case." The judgment of that court having remanded the cause for another trial, our jurisdiction only attached because of the practical settlement of the case by the opinion of that court, the law governing our jurisdiction in the case being that in force prior to the amendatory act of 1913.
It is due, however, because of the seeming misapprehension of Judge Brown's opinion, that we more definitely state that we do not agree with the conclusion of the honorable Court of Civil Appeals upon the question of Tweed's contributory negligence. We believe that the evidence was such as to require the submission of that issue to the jury. We base this view upon that portion of the testimony which showed that before he went upon the pole, the fall of which caused his injury the Telegraph Company's foreman, in Tweed's presence, made an inspection of the pole and within Tweed's hearing announced, substantially, that it was all right. Granting that it was ordinarily the duty of an employe about to go up on a pole under the circumstances shown, to properly secure it by the use of guy wires and clamps, and that Tweed in this instance failed to take that precaution, still the inspection of the pole by the foreman and his assurance that it was all right made it a question of fact for the jury, we think, whether Tweed's going upon the pole without *Page 254 having previously secured it by guy wires and clamps was an act amounting to contributory negligence.
Notwithstanding our disagreement with the conclusion of the Court of Civil Appeals upon this question, it is plain, under the settled rule of decision, that we have no authority to render judgment here for the plaintiff in error. This proceeds from the jurisdiction of the Court of Civil Appeals to determine the facts of a case, and its undoubted power to set aside the findings of the jury in the trial court, and remand the case for another trial. That was done here, in the clear exercise of the authority of that court. The case of Pollock v. Houston T.C.R.R. Co.,103 Tex. 69, 123 S.W. 408, the opinion having been delivered by Chief Justice Gaines, clearly controls this question. There upon a favorable judgment for the plaintiff the Court of Civil Appeals held that the evidence indisputably showed that the plaintiff was guilty of contributory negligence, reversed the judgment of the trial court and remanded the case. This court took jurisdiction because that ruling "practically settled the case." Upon the hearing the court held that the conclusion that the plaintiff was shown to have been guilty of contributory negligence according to the undisputed proof, was erroneous. Nevertheless, this court recognized that the Court of Civil Appeals had full authority to set aside the verdict and remand the case, and under this condition it was without the power to render judgment. It was there said upon this question:
"The Court of Civil Appeals has jurisdiction to determine the facts; and because they have held that there was no sufficient evidence to sustain the verdict, we must presume, that they would have held that the verdict was contrary to the weight of the evidence and therefore the judgment is reversed and the cause remanded for a new trial."
The case of Lee v. International G.N. Ry. Co., 89 Tex. 583 [89 Tex. 583], 36 S.W. 63, is another controlling authority. There, as in this case, the Court of Civil Appeals held that the plaintiff's decedent was guilty of contributory negligence under the evidence as a matter of law, and for that reason reversed the judgment of the trial court and remanded the case. On motion for rehearing the identical contention which is here made by the plaintiff in error was there urged, namely, that inasmuch as this court had held on the original hearing that the conclusion of the Court of Civil Appeals was erroneous and the judgment of that court was based upon a conclusion of law, the judgment should have been here rendered in favor of the plaintiff in error, who had invoked the jurisdiction of the court upon the ground that the decision of the Court of Civil Appeals "practically settled the case." In the course of Judge Brown's opinion upon this question it was said:
"We can not reverse the judgment of the Court of Civil Appeals; for, although error was committed in announcing the legal conclusion upon the evidence, that court had the power to reverse for the reason that the verdict was against the weight of the evidence. It is true that the statute says that, when the decision of the Court of Civil Appeals is *Page 255 sustained, this court must enter judgment accordingly; but that means that in such case the court must enter judgment against the applicant if the facts found justify it. The case will be remanded to the District Court for trial in accordance herewith."
An extended printed argument has been filed in this case by counsel for the plaintiff in error, urging that we ought to render judgment in his favor because of our not having sustained the conclusion of the Court of Civil Appeals that Tweed was guilty of contributory negligence as a matter of law, the jury having resolved that issue in favor of the plaintiffs; but in view of these plain adjudications, as well as the explicit opinion of Judge Gaines in Choate v. San Antonio A.P. Ry. Co.,91 Tex. 406, 44 S.W. 69, we find some difficulty in understanding how any misapprehension could have arisen upon this question. With the Court of Civil Appeals invested with the full power of determining the facts of the cause, and setting aside the verdict of a jury on the facts, it must be assumed, as is said in the opinions quoted, that in reaching a conclusion that the evidence showed as a matter of law that the plaintiff was not entitled to recover, and for that reason ordering that the cause be remanded, in the same case it would have held that the verdict was against the weight of the evidence. With a case thus remanded under the judgment of the Court of Civil Appeals, it would amount to a denial of its authority to determine the facts and set aside a verdict on the evidence for this court to assume the power of rendering the judgment because it differed with the conclusion reached by that court upon the effect of the evidence.
Beck v. The Texas Company, 105 Tex. 303, 148 S.W. 295, furnishes no analogy. The distinction between that case and this one is manifest. There the court did not exercise the authority it possessed to set aside the verdict on the facts and remand the cause. It rendered judgment in favor of the defendant on the facts; and in doing so made no finding of fact which would defeat recovery. In differing with the Court of Civil Appeals upon the question of law as to the effect of the evidence, we were authorized to affirm the judgment of the lower court, since the Court of Civil Appeals had not sought to exercise its province of determining the facts and ordering the case remanded for another trial because of its difference with the jury on the facts, and in affirming the judgment we therefore in nowise trenched upon its authority. Had the Court of Civil Appeals there remanded the case instead of rendering judgment, we would have been compelled to respect its judgment to that extent and could not have affirmed the trial court judgment.
Judgment of Court of Civil Appeals affirmed and cause remanded to trial court. *Page 256