Darkins sued the Postal Telegraph Cable Company to recover $25,000 for personal injuries which he alleged resulted from the negligence of said company in lowering the ground section of a certain fire escape whereby he received an injury to his head in passing under it. The defendant company answered by a general denial and a plea of contributory negligence. The case was tried to a jury upon special issues. All issues relative to negligence on the part of the defendant were answered in favor of plaintiff, and that said negligence was the proximate cause of plaintiff’s injury, and assessed his damages at $1,000."
Among other issues relative to contributory negligence, the court submitted special issue No. 10, as follows:
“Special Issue No. 10:
“Was the plaintiff guilty of contributory negligence in failing.to hear, if he did fail to hear, Goolsby’s calls to him?
“Answer yes or no as you may find the facts to be.”
To this issue the jury answered “Yes.”
There was no issue submitted, or requested to bé submitted as to whether the act of contributory negligence above submitted and found by the jury was the proximate cause of plaintiff’s injury.
Upon the rendition of the jury’s verdict, both parties moved for judgment on same. The motion of defendant was refused and that of plaintiff granted, and judgment accordingly entered awarding plaintiff his damages and execution therefor. The defendant duly excepted to the action of the court in refusing its motion for judgment, but gave no notice of appeal. The judgment was duly entered by the court on April 16, 1929. On . April 26, 1929, the defendant filed its motion styled: “Motion to Reconsider Rulings on Motion to Enter Judgment.”
This motion, omitting formal parts, reads as follows:
“In this cause comes defendant, Postal Telegraph Gable Company, in the event of the court having overruled this defendant’s motion for judgment in its favor based ón the verdict of the jury, or in the event of the courts having granted the plaintiff’s motion for judgment in its favor, and moves the court to reconsider such action and enter judgment in favor of this defendant, because it is manifest that the verdict of the jury was such as to require a judgment in favor of defendant, the jury having found plaintiff guilty of contributory negligence in failing to regard the cries of warning given to him by defendant, which finding is in support of an affirmative defense specially pleaded by defendant, and the language of the charge, submitting the question of negligence in failing to hear such warning cries, was the language selected by plaintiff’s counsel in which to submit such issues. The finding thereon is clear and includes the fact that such contributory negligence was the proximate cause, because the charge of the Court in its preliminary instructions expressly defines contributory negligence as being such an act or omission on the part of the plaintiff, amounting to want of ordinary care, as, concurring or cooperating with some negligent ' act or omission of the defendant, is a proximate cause of the injury, and without whichPage 442the injury would not have occurred. The insertion of the words ‘if he did fail to hear,’ which were inserted upon exceptions of defendant, were necessary in order to make the charge consistent in that respect with that portion of said charge in which an issue was submitted as to whether or not plaintiff voluntarily collided with the fire escape.
“In this connection, defendant urges the fact, well-known to the court, that the charge submitted in this case was prepared by plain-, tiff’s counsel, and plaintiff’s counsel was consulted by the court as to all amendments to said charge that were made after exceptions were directed thereto by defendant, and, therefore, plaintiff is estopped to urge any objections whatever to the language of such charge.”
The motion was overruled by the court, to which action of the court the defendant excepted and gave notice of appeal. The exception and notice of appeal are embodied in the judgment overruling the motion to reconsider.
Appellee, Darkins, has filed motion to dismiss the appeal because:
“(a) The appeal is not taken and does not purport to be taken from the final judgment rendered in the district court.
“(b) The appeal is taken from the order of the district court refusing the appellant’s motion to reconsider rulings on the motion to enter judgment, which was not the final judgment in the ease.
“(c) The appellant made no exception to the final judgment rendered in the case and gave no notice of appeal therefrom.
“(d) The district court rendered judgment upon the findings of the jury and in favor of plaintiff, who is appellee in the case, as moved by the appellee and as prayed for, and no notice of appeal from the order of the court so rendering judgment was given by the appellant, and no appeal was taken from the district court’s order so entering judgment upon the findings of the jury.”
We think the motion to dismiss must be sustained. If the motion to reconsider the action of the court in refusing appellant’s motion for judgment on the jury’s findings could be considered, or should be considered, as intended for a motion for a new trial, then there would be a different question before us. But it was not so intended and cannot be so considered. Appellant nowhere contends that its motion to reconsider was intended as a motion for new trial, or was to serve the purpose of a motion for a new trial, but, to the contrary, in oral argument on submission, vigorously insisted that its said motion was not intended as a motion for a new trial, that it did not want a new trial, that it had a jury finding of contributory negligence and was entitled to judgment on that finding, and not to a new trial because of the action of the court in refusing its motion for judgment.
As before stated, both parties moved for judgment on the findings of the jury. Appellant’s motion was refused and appellee’s granted, and judgment accordingly entered. To this judgment, appellant did not except or give notice of appeal. This judgment was entered April 16, 1929. April 26, 1929, appellant filed its motion, not for a new trial, but for the court to reconsider its rulings on the motions for judgment. This the court overruled, and, to this action of the court in refusing to reconsider its prior rulings, appellant excepted and gave notice of appeal. There can be but one final judgment in a case. The judgment of the court in overruling appellant’s motion to reconsider was not the final judgment in the case. The final judgment was the one of April 16,1929, awarding and entering judgment for plaintiff on the jury’s findings. There was no exception to or notice of appeal from that judgment. The appeal from the judgment of the court in refusing to consider its action in refusing appellant’s motion for judgment does not bring before us the final judgment on the merits of the-case. The judgment appealed from not being one from which an appeal would lie, the appeal must be dismissed, and it is so ordered.
Dismissed.