Temple Electric Light Company v. Mrs. Minnie Halliburton, 104 Tex. 493

ON MOTION EOR REHEARING. Mr. Justice Ramsey delivered the opinion of the court. In the opinion of the Court of Civil Appeals, reported in 136 S. W., 584, will be found a full and substantially correct statement of the facts, on which the judgment of the District Court rested and with reference to which said judgment was by the Court of Civil Appeals affirmed.

On application for writ of error to this court, as originally submitted, we concluded that, as presented to us, and in subjection and obedience to the rule which makes the judgment of the Court of Civil Appeals as to the fact's binding on us, we were not justified, on the merits of the case, in interfering.

True, there was indeed a strong showing of contributory negligence on the part of the deceased, but in view of all the facts and particularly in view of the great and sudden emergency confronting himr we were not' willing to say that, as a matter of law, he was guilty of such contributory negligence as would bar a recovery by his wife and children. We also then thought, as we now believe, that there was evidence in the record supporting the verdict of the jury affirming negligence on the part of the Electric Light Company causing or contributing towards causing Halliburton’s death.

We further concluded that the action of the court in declining to continue the case to permit the plaintiff in error to make the owner or owners of the telephone plant parties to the suit was, if error, not such substantial error as should operate to reverse the ease. Thereafter a motion for rehearing on the application for writ of error in which all the matters and questions theretofore urged were again presented with great force and clearness. These questions have been the matter of the most thorough and anxious consideration by every member of the court.

While not such a result as we would ourselves have been inclined to determine, we have nevertheless been unable to conclude that we should, under the limitations of our creation, grant the writ.

If it should be held that it were wiser for the trial court to have continued the case in order that the telephone company might' be made a party, so that in the one case, the plaintiff in error, might, if' entitled thereto, secure a judgment, in the way of contribution, for some or all of the sum with which it is charged, we are not prepared to say, even if it could be held that contribution between such tort feasors exists, that this should, as a matter of right, entitle plaintiff in error to a reversal of the judgment.

If entitled to such right of contribution at all, it still exists in unabated vigor and to an extent unaffected by this decision. We need not therefore here decide, and probably ought not now to decide whether under the facts of this case such right of contribution exists. The motion for rehearing was overruled some days ago, but the mandate was by direction of the court withheld for further investigation.

Such investigation and such careful study of the case as we have all made has again led us to the conclusion that the motion for rehearing was rightfully refused, and this memorandum is but to evidence briefly the basis for such decision. Motion overruled.