East Texas Theatres v. Swink , 173 S.W.2d 224 ( 1943 )

If it be assumed that the facts set out in the original opinion raised the issue of discovered peril, which I seriously doubt, it is my opinion that special issues Nos. 15, 16 and 17 set out did not submit the issue of discovered peril to the jury, in that the element of time, a crucial issue under the doctrine of discovered peril, is not embraced in said issues as worded.

In Northern Tex. Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41, 44, it is stated: "The vital and controlling issue in every case of discovered peril is whether the perilous position of the injured party is discovered in time to avoid the injury by the use of all the means at hand. In nearly all cases of injury there is a discovery of the danger at some point prior to the injury, and the crucial issue is the time of discovery." See also Northern Tex. Traction Co. v. Singer, Tex. Civ. App.34 S.W.2d 920, 923. In Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112,115, which cites above holding and others, it is reannounced "that the time of discovery is the crucial issue in discovered peril cases and that an issue presenting the element of time must be directly submitted."

In the instant case, the issue as to whether Billy Fallin, employee of defendant, discovered the perilous position of H. T. Swink in time to have prevented his fall into the pit by the use of all the means at hand, was never directly submitted to the jury by any special issue in the charge.

For the reasons above stated, I do not concur in the disposition of this case reached in the majority opinion. It is my opinion that the motion for rehearing should be granted and the cause reversed and remanded.