TEMPLE ELECTRIC LIGHT CO. v. HALLIBURTON et al., 140 S.W. 426

RAMSEY, J. In tbe opinion of tbe Court of Civil Appeals, reported in 136 S. W. 584, will be found a full and substantially correct statement of tbe facts on wbicb tbe judgment of tbe district court rested, and with reference to which said judgment was by tbe 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 tbe rule wbicb makes tbe judgment of tbe Court of Civil Appeals as to tbe facts binding on us, we were not justified, on tbe merits of tbe case, in interfering.

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

We further concluded that tbe action of tbe court in declining to continue tbe case to permit tbe plaintiff in error to make tbe owner or owners of the telephone plant parties to tbe suit was, if error, not such substantial error as should operate to reverse tbe case. Thereafter a motion for rehearing on tbe application for writ of error was filed, 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 should 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 that, even if it could be held that contribution between such joint tort-feasors exists, 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.