# Fink v. Brown

> Court of Appeals of Texas · February 3, 1916 · 183 S.W. 46

URL: https://www.frixlaw.com/law-library/cases/9828631

## Case

- **Full name:** FINK Et Al. v. BROWN
- **Court:** Court of Appeals of Texas
- **Decided:** February 3, 1916
- **Citations:** 183 S.W. 46; 1916 Tex. App. LEXIS 116
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Higgins
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828631

## Opinion text

On Rehearing.
In their motion for rehearing appellants criticize that portion of the opinion wherein it is stated:
“The specific act of contributory negligence pleaded was the act of plaintiff in opening and leaving open the drain cock or blow-off pipe connecting- the live boiler and the one in which he was working.”
It is insisted there is a general allegation of contributory negligence, and that there are specific allegations with respect to other acts of contributory negligence. We are referred to the third, fourth, sixth, and seventh paragraphs of the answer of Fink & Smith. The third and fourth paragraphs *51 are not affirmative defenses, but specific denials of tbe allegations of the petition made in accordance with chapter 127, General Laws of Thirty-Third Legislature, and cannot properly be considered as presenting the affirmative defense of contributory negligence under general allegations. But, if so, such general allegations are controlled and limited by the specific allegations in subsequent portions of the answer.
Paragraph 6 purports to be a plea of assumed risk. Paragraph 7 presents the plea of contributory negligence, and we think it was correctly summarized in the quoted portion of the opinion. It may be that portions of paragraph 6 properly present issues of contributory negligence, rather than assumed risk, though, professedly, it relates to the latter. However this may be, the answers of the jury to the various issues submitted preclude the idea that defendants are entitled to judgment upon any issue of contributory negligence specifically pleaded. And, if the issues submitted to the jury do not cover all issues of negligence specifically pleaded, it will be presumed that the same were resolved against appellants by the court.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828631. Public record. Not legal advice.