On Rehearing.
[2] On consideration of this case originally we refused, upon objection by appellee, to consider all assignments of error presented by appellant, because not in compliance with the rules, and affirmed the judgment of the trial court without considering the merits of the issues presented by the assignments. Upon reconsideration we conclude we were in error in that respect, so far as relates to the first and second assignments of error. We based our refusal to consider those assignments on the holding in the case of Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485, that, “when a case has been submitted to a jury on special issues, and the findings of the jury entitle the plaintiff to a judgment, and the trial court overrules a motion to set aside the verdict, but the defendant does *757not, on appeal, assign as error tlie action of the court in overruling the motion for a new trial,” the appellant cannot complain of the judgment on the ground that the findings of the jury are not supported by the testimony. The appellant in this case, by its first and second assignments of error, did just what the rule stated prohibits; that is, complained that, while the findings of the jury entitled appellee to a judgment, yet the testimony was insufficient to support same. Stated in another way, the jury found all special issues favorably to appellee. Appellee moved for judgment on the jury’s findings, as did appellant. The court followed the rule announced in the Scott Case, and entered judgment for ap-pellee without reference to whether or not the findings were supported by the evidence, leaving it for appellant to move to set. aside the verdict thereafter on the ground that the evidence was insufficient to support the same. Appellant did file a motion for a new trial setting out therein that a new trial should be granted and the verdict set aside for the reasons contained in his motion for judgment; that is, that the evidence would not sustain the finding of the jury. But, as stated in our original opinion, the error assigned in the brief, and which we were asked to review, was the action of the court in entering judgment for appellee, and not his .action in overruling appellant’s motion for a new trial. Hence the case presented came •clearly within the rule in the Scott Case, and .it only remained for us to observe it. We now find no fault with that rule, and are not to be understood as criticizing its correctness •or its applicability to the issues at the time the opinion was written. What we now conclude is that we overlooked the effect upon the rule announced in the Scott Case of the amendment of article 1612 of the Revised Statutes of 1911, passed at the regular session of the Thirty-Third Legislature, and effective April 14, 1913, prior to the time of the trial of this cause. Article 1612, R. S. 1911, provided that the party appealing should in all cases file with the clerk of the court below “assignments of error, distinctly specifying the grounds on which he relies, * * * .all errors not distinctly specified are waived.” The amended article provides “that where a motion for a new trial has been filed that •the assignments therein shall constitute the .assignments of error and need not be repeated by the filing of the assignments of error,” etc. Gen. Laws Reg. Sess. 33d Leg. p. 276; article 1612, Vernon’s Sayles’ Civ. Stats. 1914. Thus by statute, when motion for new trial is filed in the court below, whether the verdict is general or upon special issues, the assignments contained therein or the grounds upon which the new trial is sought “shall constitute the assignments of error in this court.” As said, appellant did file a motion for new trial in the court below, and incorporated in its brief literally the assignments therein for our consideration as article 1612 directs shall be done, and which we declined to do upon objection by appellee. Our action in that respect, we believe, was erroneous. The declared purpose of the Legislature in amending article 1612 was to abolish the rule prevailing at that time of repeating the grounds of error set out in the motion for new trial in independent assignments of error, together with any rule of decision evolved as the result of the old statute. It would be idle to argue that a litigant could in his motion for new trial complain that the court overruled it, and yet that is what would now be necessary in an attempt to observe the provisions of the amended statute and the rule in the Scott Case arising from the old statute. Appellant did complain of the verdict, and did move the trial judge to set it aside, which he refused to do. Even had appellant observed the old rule and filed independent assignments, which he was not required to do, the precise grounds would have been urged that are now urged, with the difference that the formal statement would have been made in such independent assignments that the court erred in overruling the motion for new trial for the reasons stated in such motion for new trial, and this technical requirement was perhaps one among the reasons inducing the amendment. The provisions of article 1612, as amended, are so plain that much cannot be said on the subject other than that it means what it says. Hence we conclude that under its terms, when the party appealing files a motion for new trial, and one of the reasons urged therein is that the evidence will not support the finding of the jury, whether the verdict is general or upon special issues, and that contention has been overruled by the trial judge by a denial of the motion presenting it, the action of the judge may be reviewed in this court by a presentation of the question in the identical manner in which it was presented in the court below, and that all statutory rules governing special verdicts and the decisions construing same must yield to the terms of article 1612, as amended.
[3] This then brings us to a consideration of the first and second assignments of error upon the merits of the issue thereby presented. As stated in our original opinion, both assignments, in effect, present the issue of whether or not the evidence was sufficient to sustain the several findings of the jury detailed in said original opinion and upon which the court based its judgment. In such connection it is proper to note now, since we failed to do so originally, that it is conceded by counsel for appellee that he was engaged in interstate commerce at the time he was injured, and that hence the common-law rule of assumed risk applies. Proceeding, then, on that premise, we conclude upon the controlling issue that the evidence was insufficient to sustain the judgment and verdict *758The findings of fact spealc for themselves, but the fact upon which the case necessarily pivots is: Was that which proximatcly caused appellee’s injuries a risk assumed by him under the common-law rule? The appellee testified that he remonstrated with appellant’s foreman when directed to move the rail on the ground that it was too heavy for four men, and the jury found, as a consequence, that appellee knew that four men wore insufficient to perform the work as directed. That such facts and findings present a case squarely within the.rule which holds that, when the servant knows, or by the exercise of ordinary care for his own safety could have known, of the danger of continuing to labor for the master without a sufficient number of competent and careful co-servants, he assumes the risks from such negligent failure of the master. Haywood v. Railway Co., 38 Tex. Civ. App. 101, 85 S. W. 433; Railway Co. v. Miller, 36 Tex. Civ. App. 240, 81 S. W. 535; Railway Co. v. De Rodriguez, 77 S. W. 420; Railway Co. v. Figures, 40 Tex. Civ. App. 255, 89 S. W. 780; Railway Co. v. Lemon, 83 Tex. 143, 18 S. W. 331. Nor is it any limitation on the rule that the master assures the servant that there really is no danger, or that the master also knew of the danger, or that the danger could have been averted by the master by directing the work to be performed in another method. The controlling fact remains that the servant in such cases comprehends fully that it is dangerous for him to attempt the task in the manner directed.
It is also urged by appellee that he was obeying orders of the master in an emergency, which would, aside from all other issues, fix liability upon appellant. Generally speaking, an emergency is a condition arising suddenly or unexpectedly, and which calls for immediate action without giving time for the deliberate exercise of judgment. The evidence here does not present a case within such definition. After appellee, in the exercise of his deliberate judgment and knowledge, had remonstrated against the task assigned him, he was told by the foreman to “load the rails, boys; I am in a hurry to put them in the main line.” The last order was, of course, no more than a repetition of the first, and is insufficient to establish an emergency.
The case, as we have indicated, stands or falls upon appellee’s knowledge of the danger of that which he undertook to do; and since he frankly admits he knew it was dangerous, and since that fact is controlling, we feel that no liability exists against appellant.
Accordingly, the motion for rehearing is granted, and our former order affirming the judgment is set aside, and the judgment of the trial court is reversed, and judgment here rendered for appellant.
Reversed and rendered.