* Writ of error refused June 3, 1925. *Page 868 The contention first presented in appellant's brief is that the trial court erred when he refused to grant its motion for a new trial on the ground, first, that the testimony did not warrant a finding that it was guilty of negligence as charged against it; and on the ground, second, that it conclusively appeared from the testimony that the risk incurred by the deceased in returning to the bridge from the telegraph pole was one he had assumed. We do not think the contention is tenable on either of the grounds urged.
As to the first, if it did not conclusively appear, certainly the jury had a right to say it sufficiently appeared from testimony referred to in the statement above, that the way used by the deceased, and which he was directed by the assistant foreman to use, in going from the bridge to the telegraph pole, and which he was using in returning from the pole when he was last seen on the west side of the bridge, was a dangerous one, not only because of the deep water between the bridge and the point of the V-shaped strip of land on which the telegraph pole was situated but also because of the shape of the strip and the deep water on the north and south sides thereof. The jury had a right to say, further, that appellant knew, or in the exercise of proper care should have known, that the way was an unsafe one. The jury had a right to say, further, we think, that the deceased was ignorant of the shape of the strip of land, and of the fact that the water on the north and south sides of it was dangerously deep, and that because he was ignorant of those facts he stepped into the deep water on one or the other side of said strip of land as he was returning to the bridge, and as a result was drowned; and a right to say, further, that appellant knew of such ignorance on the part of the deceased, or if it did not know it at least had no reason to believe he knew such facts, and yet failed, when it directed him to do the work on the telegraph pole, to furnish him means for going to and returning from the pole with reasonable safety, and failed to warn him of the danger he would incur in attempting without such means to go to and return from the pole. Having a right to say that much from the testimony, it is clear enough, we think, that the jury had a right to conclude that appellant was guilty of negligence, which was a proximate cause of deceased's death when it directed him to go to the telegraph pole as he did. 18 R.C.L. 593, 596; 3 Labatt on Master and Servant, § 916; 1 Bailey on Master and Servant, 218, 220; Curry v. Atlantic Refining Co.,239 Pa. 302,86 A. 856; Lavin v. Jones, 209 Mass. 8, 95 N.E. 219.
As to the other ground of the contention, we think it did not appear as a matter of law that the risk was one the deceased had assumed. Of course, the fact that the way to the telegraph pole was through water *Page 871 was known to the deceased, and perhaps the testimony was sufficient to show that he knew the water was deep between the bridge and the point of the strip of land on which the telegraph pole was situated, but certainly it did not conclusively appear that deceased knew anything about the shape of the strip, nor anything about the depth of the water on the north and south sides thereof, and, as stated above, it was those things as well as the depth of the water between the point of the strip and the bridge that rendered the way unsafe. It was appellant's duty to ascertain the shape of the strip and depth of the water on the sides thereof, and to advise the deceased of danger he would incur therefrom in going to the pole and returning to the bridge in obeying its command to tie the wires on the pole. The deceased had a right to assume that appellant had discharged its duty in that respect, and to conclude from its failure to warn him to the contrary that the way was safe except for the deep water between the point of the strip and the bridge. 18 R.C.L. 593; Bonnet v. Galveston, H. S. A. R. Co., 89 Tex. 72, 33 S.W. 334; Railway Co. v. Gant, 164 Ark. 621, 262 S.W. 654; Producers' Oil Co. v. Barnes,103 Tex. 515, 131 S.W. 531.
It is next contended that the trial court erred when he overruled appellant's objection to the second paragraph of the charge to the jury, set out in said statement. The grounds of the objection, stated in the order they appear in appellant's brief, were that the instruction did not require the jury (1) to determine whether the existence of the depression therein referred to "rendered the way to be traveled by the deceased dangerous" or not; (2) whether it (the depression) was near the way or not; (3) nor whether it caused the water at the point where it was situated to be "beyond the depth of the deceased" or not; (4) that the instruction was argumentative and on the weight of the testimony; (5) was not warranted by testimony, because it conclusively appeared that deceased knew of the depression between the bridge and the strip of land on which the telegraph pole was situated; and (6) was not warranted because there was no testimony to support a finding "that the deceased was caused to be drowned by falling into any deep depression in the ground along the route necessary to be traveled by him In going to or leaving" the telegraph pole.
As to the first ground of the objection, it will be noted that the instruction required the jury to find that there was a "deep" depression along the route deceased was to travel to and from the telegraph pole and to find that the death of deceased by drowning was due to the fact that he stepped into the depression. We think the Jury could not have found that without in effect finding that the way was a dangerous one, for necessarily, it seems to us, a deep depression "underneath the surface of the overflow waters," and which, therefore, could not be seen, into which deceased could step in going to the telegraph pole and returning therefrom to the bridge, rendered the way a dangerous one.
But if the instruction was erroneous on the ground in question, the error was one of omission of which appellant has no right to complain, it seems, for it is not made to appear in the record sent to this court that it sought to have the omission supplied by requesting a special charge which, if given, would have supplied it. Modern Woodmen v. Yanowsky (Tex.Civ.App.) 187 S.W. 728; Railway Co. v. Russell (Tex.Civ.App.)184 S.W. 299. What has just been said applies as well to the objection so far as it is based on the failure of the instruction to require the jury to find how deep the depression was and how near it was to the way to the pole from the bridge. This does not mean that we have doubt as to whether the objection was tenable on those grounds or not, for we are satisfied it was not tenable on either of them. The exact depth of the depression and its exact distance from the way were, of course, matters for consideration by the jury in determining whether appellant was guilty of negligence as charged against it or not, but they were evidentiary facts only, and not ultimate facts necessary to the validity of the judgment.
We think the fourth ground of the objection is also plainly untenable, for we have been unable to see wherein the instruction was either argumentative or on the weight of the testimony.
As to the fifth ground, it might be conceded that the deceased knew that the water was deep between the point of the strip of land and the bridge, and yet it could not therefore be said that it conclusively appeared that he assumed the risk which resulted in his death, for, as stated above, it did not appear that he knew the shape of the strip of land, nor the depth of the water on the sides thereof, and appreciated the danger to be incurred in using the way in question.
The remaining ground of the objection, to wit, that the testimony did not warrant a finding that the deceased fell into a depression along the way between the bridge and the telegraph pole, has already, in effect, been overruled by what was said in disposing of the first contention.
Appellant objected to the third and fifth paragraphs of the court's charge to the jury, set out in said statement, on the same grounds, to wit, that they were, respectively, on the weight of the evidence, and that there was no evidence on which to predicate a finding that appellant was guilty of negligence, either in failing to furnish the deceased a boat, or in failing to furnish him a rope or line for use in doing the work he was directed to do, and on the ground, if there was *Page 872 such evidence, that there was no testimony that negligence in either of such respects was a proximate cause of the drowning of the deceased. We do not agree that the instruction was on the weight of the evidence, and we think there was testimony on which the jury had a right to predicate such findings. In addition to testimony referred to in said statement, it appeared from testimony of the witness Goddard, which the jury had a right to believe, that Henry Smith, pumper at appellant's water tank near Ruliff, owned boats, and, on the morning of the day deceased was drowned, offered the use of same to appellant's foreman in charge of the work the deceased was engaged in, and at the same time warned said foreman that "that water (quoting) is deep and swift. It would be best to use them (the boats) at that second bridge down there" — which was the bridge from which the deceased went to the telegraph pole at the time he lost his life. It appeared from the testimony of the witness Vaughan that he and one Kelly, both employés of appellant, and engaged in trimming trees along appellant's right of way near said bridge, used a boat in doing their work. It appeared further from the testimony of said witness Vaughan that on the second day after the deceased was drowned, when, at appellant's instance, he went into the water at the bridge to make measurements to determine the depth of the water, he was equipped with a pike pole and had a rope tied around him, which was held by a gang of men on the bridge, and that he found the water so deep and so swift a few feet from the part of the bridge near the point of the V-shaped strip of land that he was afraid to venture into it, even with the protection furnished to him by the pike pole and the rope, and it appeared from the testimony of other witnesses that, at the time the deceased was directed to go to the telegraph pole, appellant had at hand a supply of rope, which it could have used in safeguarding him on his trip to said pole and back to the bridge. We are not prepared to say the jury did not have a right to conclude that an ordinarily prudent person, under the circumstances of the case as shown by all the testimony, would have furnished the deceased with a boat or a rope or line, or both, for use in going to the telegraph pole and returning therefrom to the bridge; nor are we prepared to say that the jury did not have a right to say that appellant's failure in that respect was actionable negligence on its part.
In his main charge the trial court undertook to instruct the jury as to the law applicable to appellee's theory of the case, but did not instruct them as to the law applicable to appellant's theory thereof. Appellant complains that the effect of the court's action was to compel it "to resort (quoting from its brief) to the expedient of preparing special charges, and thereby having its defenses and the converse of the theories urged by appellee thus presented to the jury." In support of its complaint appellant argues that the purpose of the statute (article 1970, Vernon's Sayles' Statutes 1914) providing that unless it is waived the trial judge shall "prepare, and in open court deliver a written charge to the jury on the law of the case," was to require a trial judge —
"in his charge to submit to the jury the law applicable alike to both sides of the case," and that "it was manifestly not the purpose of the Legislature merely to require the court in its charge to submit one side of a case, as in this, the appellee's side thereof, and require the appellant, as in this case, to prepare and request special charges presenting its side of the same."
Doubtless it is true that the purpose of the statute was to require the court, in the absence of waiver, to prepare and deliver a written charge to the jury on the law applicable, not merely to some, but to all the issues made by the pleadings and the testimony in a case; but we do not think a failure of the court to comply with the requirement should operate to reverse a judgment where the omission or omissions in his charge were, as here, so fully supplied by special charges prepared by one of the litigants and given to the jury at his request.
Contentions presented in appellant's brief not in effect disposed of by what has been said are believed to be without merit and are overruled.
As we view the record error requiring a reversal of the judgment has not been shown, and therefore it is affirmed.
On Motion for Rehearing. The statement in the opinion disposing of the appeal that if paragraph 2 of the court's charge was erroneous as specified in an objection made to it, the error was one of omission of which appellant had no right to complain, because it did not seek to supply the omission by requesting a special charge covering it, should be considered in connection with the dictum of the Supreme Court to the contrary in Railway Co. v. Conley,260 S.W. 561, cited in the motion. The court in that case held that the error complained of in the instruction it was considering was an affirmative one, but plainly indicated the ruling would not have been different if it had appeared to be one of omission only.
*Page 873The motion is overruled.