(dissenting on rehearing).
The factual background of this appeal is reasonably stated in the majority’s opinion. However it will be seen that the jury’s verdict is a friend and refuge. The testipony as to whether the defendant or its agents, servants and employes failed to use ordinary care with respect to any duty to furnish an assistant or helper to plaintiff while dismantling the partition wall, is so weak as to raise merely a surmise or suspicion of the facts necessary to be proved in order to establish liability against the defendant. The judiciary should recognize the weakness and determine the issues accordingly. Indeed, the trial by jury is sacred and should be preserved. However, the jury system is not perfect, evidenced by statutes authorizing courts to set aside *716verdicts where it manifestly appears that such verdicts were due to passion or prejudice, etc. Whenever the rights of the public, the government and private citizens are seriously injured as the result of a jury verdict, it is the clear duty of the courts, upon proper motion, to review and consider the evidence for the purpose of determining if the jury fulfilled its duty in weighing the evidence and deciding the issues. As said in the case of Galveston, H. & S. A. Ry. Co. v. Thompson, Tex.Civ. App., 116 S.W. 106, 108 (writ refused):
“If this were not so, then, under the mask of law, the law might be ignored and the citizen deprived of his life, liberty, or property, not by due process of law, but by the fraud, misconduct, undue influence, whims, prejudices, ignorance, or capi'ice of the jury; and courts, instead of being places where justice is juridically administered, become places where justice is mocked, scorned, trampled down, and buried in a mire of prejudice and corruption, and the very pui’pose and object of the judicial department of government thwarted and made the medium of robbing, oppressing, and plundering the people who are taxed to support and maintain it.”
Then, too, in the case of Wichita Falls Traction Co. v. Cook, 122 Tex. 446, 60 S.W. 2d 764, at page 768, the Commission of Appeals relates:
“If the court thinks that the ends of justice have not been attained by the verdict of the jury, it is clearly its di^ty to set aside the judgment rendered on the verdict.”
And in the case of Texas & P. R. Co. v. Casey, 52 Tex. 112, at page 122, our Supreme Court said:
“* * * that the right to a new tidal in a proper case is a valuable one given by law, and should be fearlessly enforced by presiding judges, as otherwise the ends of justice may often not be attained.”
See also McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357; Casey v. Jones, Tex. Civ.App., 189 S.W.2d 515.
So it is that no opinion should be entered by any court in any case inspired by rules, of expediency or for any personal or political fortune as to appease lawyers, judges or litigants at the expense of honest conviction. This case rests not on statutory liability, but on the common law of. negligence between Masters and Servants.
Visualizing this case: A small partition wall, 5 feet wide, 8 feet high, constructed of sheet rock wall-board nailed to 2x4 studding, with 2x4’s doubled for a plate 5 feet long at the top of the wall. The plaintiff was an experienced carpenter, 71 years of age, strong and healthy, drawing standard union wages. The plaintiff was employed by the defendant to dismantle this wall and extend it back to give additional room for vestibule entrance in the building. Plaintiff, with another workman or helper, took the wall-boards off and moved the studding, leaving each end of the plate attached to the side-walls. Sometime during the work, the other employe left the job, for what reason the record does not show. The plaintiff then went to another room or workshop, located in the same building, without the knowledge or consent of the defendant or its employes, and secured a ladder and crow-bar to remove the five-foot plate. Plaintiff, after putting the ladder in place, climbed to the first, second or third rung, loosened the left end of the plate and, while prizing loose the right end from its fastening and holding to the plate with his left hand, he “accidentally” let the plate fall, resulting, as he claims, in injury to his leg.
Now, bearing in mind that the judgment is based solely on the findings of the jury (1) that the safety of plaintiff in performing the work under the circumstances reasonably required the services of at least two men; and (2) that defendant failed to exercise ordinary care to furnish another person along with plaintiff in the work of dismantling the wall, the court should review plaintiff’s testimony, and, if his admission given at the trial of this case precludes a charge of negligence or claim of liability, the verdict of the jury should not be a refuge for an unjust decision.
At the trial plaintiff testified, in response to questions:
“Q. As I understand your testimony you had already knocked off the sheetrock from *717the partition wall? A. Yes, and taken die studding out.
“Q. You did that by yourself ? A. Yes, sir.
“Q. It was a one-man job that you were doing? A. One could do it easily.
“Q. It was only five feet long and eight feet high? A. Yes, sir.
“Q. Did you ask for a man to help you ? A. My foreman was not there.
“Q. You voluntarily did the work that they hired you to do? A. I went under the instructions of the foreman to take that stuff down.
“Q. Why didn’t you say ‘Give me another man’? A. I thought he would be there all the time, but he left.
“Q. Why didn’t you wait until he got back ? A. I worked for the money.
“O. Which end did you have in your hand of the plate? A. About the center, I let it fall accidentally.”
It is pertinent here to recall that the plaintiff filed suit alleging three acts of negligence on the part of the defendant: (a) In failing to have a helper; (b) in furnishing an old worn out, unsteady, shaky and rickety ladder; (c) in furnishing an over size wrecking bar, too large and too heavy.' On the first issue, admitted by plaintiff himself, the plate “accidentally” fell from his hand; and the work at hand was a one man job — “one could do it easily.” And then, on the last two issues pleaded: First, with respect to the old, worn out, rickety ladder claim, plaintiff testified:
“Q. I believe you said it was a good ladder to go up and down on? A. Yes, it was a good ladder.”
And second, with respect to the oversize, heavy, wrecking bar claim, plaintiff testified:
“Q. Held in your hand, do you judge that weighs about five pounds ? A. Six or seven pounds.
“Q. If it weighs five pounds, you could be mistaken? A. Five or six or seven pounds, along there.”
At the conclusion of the testimony, the trial court held that the plaintiff having testified that the ladder “was a good ladder,” and the wrecking bar weighed “five or six or seven pounds, along there,” such statements, as a matter of law, were admissions which precluded a charge of negligence or claim of liability for defendant’s failure to furnish a good ladder or suitable wrecking bar. Then, for like reason, plaintiff’s statement that the work of dismantling the wall was a “one man job — one could do it easily,” and that the plate “accidentally” fell from his hand should likewise avoid liability for defendant’s failure to furnish a. helper to remove the plate. Plaintiff’s testimony that he was doing a one-man job which one could do “easily,” and that he did not wait for help because he “worked for the money,” constituted, at the most, surmise and suspicion of the facts to be proved by. plaintiff in order to establish a case of actionable negligence.
In the light of this record, it was the duty of the trial court to have instructed the jury to return a verdict for the defendant ; and on the failure to do so, it becomes the duty of this court to render such judgment as the trial court should have rendered. The plaintiff being an experienced carpenter, knowing the line of work he was doing and the danger, if any, incident to the work, assumed the risk. “Knowledge of the risks is charged to an experienced servant as a matter of law, and where the particular task involves nó greater risk than that run by anyone who works at an occupation of the kind in question, the servant, whether experienced or not, assumes the risk, unless he has been set at a task outside his usual line of work and the danger is unknown to him. As against an adult, at least, the master is entitled to assume that the servant is acquainted with all ordinary risks, and in the absence of actual knowledge that the danger is abnormal or that the servant, is inexperienced and ignorant of some ordinary danger, he is under no duty of warning as to adults.” 29 T.J. 52, sec. 28. In the instant case, the facts and circumstances permit of but one conclusion, that the question of assumed risk becomes one of law for the determination of the court. There is no room to conclude and no reason shown, that the defendant, its agents and servants, should, or could have anticipated that plaintiff *718would have “accidentally” hurt himself, or that the work plaintiff was doing required the services of two workmen. Being convinced that plaintiff’s suit is tmtenable, that his testimony is prima facie unbelievable, I respectfully dissent from the majority; this cause should be reversed and rendered. There is no room for a compromise judgment by reducing the amount of $2,000, as found by the jury, to $1,250. Such reduction by the trial court without assigning cause or reasons infers the weakness of plaintiff’s testimony and a miscarriage of justice. The testimony of plaintiff gives rise to no testimony of probative value, consequently defendant’s motion for a peremptory instruction, or motion for judgment notwithstanding the verdict, or motion for new trial should have been granted. It is well settled that more than a scintilla of evidence is necessary to raise a fact issue for a jury. The leading case in Texas upon this point is Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, in which Mr. Justice Denman, speaking for the Supreme Court, said:
“From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the 'testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.”