These considerations prompt the dissent:
(1) This was a jury trial, and all the same evidence upon which the Supreme Court before reversed this court — acting then as in the present appeal through its Chief Justice — in holding that an issue of fact was thereby raised for the jury, was to the same extent and with like effect received upon this trial, with the testimony of appellant's witnesses, Greening and Mitchell, added, whereby they undertook to adduce an alibi for it in testifying that the machinery was not uncrated until after the appellee's injury; but how this belated addition can metamorphose the whole body of the testimony into a showing that no such question of fact was raised, does not readily occur; the jury — not this court — was the judge of their credibility and the weight to be given to their testimony.
(2) The appellant's main contention upon this appeal was that there was no evidence sufficient to raise any question of fact as to negligence upon its part, although it did assign the jury's verdict to be so against the overwhelming weight of the testimony as to be clearly wrong; this court, however, did not exercise the only authority it had as to this latter presentment by remanding the case, undertaking rather to merely state such a finding; that finding is therefore abortive and need not be further referred to, since the Supreme Court will have jurisdiction to review the actual holding made, that there is no evidence. Belser v. Herman Hale Lumber Co. (Tex.Com.App.) 41 S.W.2d 208.
(3) Neither can the confession now by this court of its error upon the former appeal take from the whole body of the evidence upon the present trial the effect the court below gave it, notwithstanding the new contribution thereto of the two named witnesses for the appellant, the probative effect of the other evidence being precisely the same this time as formerly.
(4) Appellant's assertions to the effect that all the contractors were simultaneously engaged in the performance of their several contracts, that the record of the former trial did not show when or where appellant uncrated the machinery, and that the record of this trial undisputedly showed that appellant did not uncrate any of the machinery until a month after the appellee was injured, are all inept and not the truth of this case. *Page 758
As affects the first of these, it becomes misleading in the face of the fact that there is no evidence whatever tending to show that any others than the appellee and one co-worker with him were in or near that part of the warehouse floor where the identified crating board that injured him lay between stacks of appellant's machinery, between the time this machinery was admittedly moved into the warehouse and that of the appellee's injury; as affects the second referred-to statement, the record — especially that received upon the former trial and reiterated upon this one — contained evidence from which it was at least a legitimate inference that appellant uncrated the machinery when it arrived and stored the same in the warehouse, its witness, the manager, Mr. Mitchell, having admitted that as the machinery came in it was placed in the warehouse by his men who uncrated that that was crated at that time and put tarpaulins upon it, adding that at that time he had given his employees instructions to clean up the rubbish after such uncrating; no subsequent changing of these statements — in the light of much time for afterthought — should have deprived the jury of a right to appraise them along with the subsequent corrections.
Wherefore the inaccuracy of the third statement quoted, supra, becomes apparent.
(5) This cause is not different from all others of its class in being subject to this well-settled rule, stated in McLaughlin v. Horn-Allen Co. (Tex.Civ.App.) 76 S.W.2d 226, at page 227: "The court is not authorized to direct a verdict, `if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.'"
Applying that yardstick to the present record as a whole, it seems plain that the new testimony on the retrial tending to show merely that none of the appellant's machinery was uncrated until about a month after the appellee stuck the nail in his foot was really only cumulative of the defenses formerly made, hence should not be given the effect of obliterating the testimony, from which the Supreme Court before said: "It became a question of fact to be determined, and the trial court and Court of Civil Appeals erred in holding as a matter of law that defendant in error was not liable."
The gravamen of the defenses upon both trials was to show that the nail came from some other kind of a piece of lumber than the crating board, in which appellant's machinery that was handled by its employees was admittedly incased; that having failed by the well-nigh undisputed showing that the offending board was of just such crating as this machinery was protected by, the inference of fact that appellant's employees had been responsible for its being in the place where the appellee stepped upon it was at least a legitimate one; any further showing, therefore, that it may have been left in that position and condition by appellant's employees, whether or not the general uncrating of its machinery had occurred until after the injury, would have still left the jury in a position to deduce that result as a legitimate inference from all the circumstances in evidence tending that way; among these is the fact, above adverted to, that no others than appellant's employees had been in that area, nor in position to have left the crating board lying there at that time.
From these views it follows that the rendition of this judgment was error.