Full opinion text
WALKER, Justice. Raymond Hopson is plaintiff and Gulf Oil Corporation is defendant in this cause. On ..April 6, ■ 1946, plaintiff was upon a. vessel, the Gulf of Mexico, which was owned and operated by defendant, and which was then upon the high seas on a voyage-between two Atlantic coastal ports of the United States. This vessel was a tanker, and plaintiff was a member of her crew, in defendant’s employ. Plaintiff was rated as a “wiper”, whose principal duty seems to have been to clean' machines and the engine room and machine shop1, but who also was to do what his officers required of him; and on the date mentioned, he was ordered by the First Assistant Engineer, who was one of his superior officers, to empty some barrels of oil into a pipe near the stern of the vessel, and while he was performing this task he trod upon some grease and sat down very suddenly and heavily upon the deck. As a result, he sustained certain injuries, of which the most serious was the rupture of an intervertebral disc. He brought this action against defendant as a consequence and in this action prayed relief upon two causes of action. One of his claims was founded upon the Jones Act, to-wit, U.S.C.A., Title 46, § 688; he charged defendant with negligence in various respects and prayed recovery of damages. His other claim was for maintenance and cure under the general Maritime law. Defendant, by way of answer, plead several special exceptions, a general denial, contributory negligence, that plaintiff’s .own neglect was the sole cause of his injuries, and that the plaintiff’s injuries were the result of an unavoidable accident. The cause was tried to a jury who, in response to various special issues, made, the following findings: (Issue 1) Plaintiff was injured on or about April 6, 1946. (1 — A) This injury was caused by plaintiff’s slipping and falling upon the deck, and (2) was received in the course .of plaintiff’s employment on board defendant’s steamship. (Issue 2-A) Plaintiff’s injuries were not the result of an unavoidable accident. (Issue 3) Defendant, acting by and through its agents, servants and employees other than plaintiff, allowed a greasy substance to be on the deck at and near the place where plaintiff was emptying oil. (3-A) But a preponderance of the evidence did not show that defendant allowed said greasy substance to remain’ on the deck for such a period of time that in the exercise of ordinary care, the same should have been discovered and removed prior to plaintiff’s fall. (4 & 5) These issues submitted negligence and proximate cause with respect to the subject matter of Issue 3; they were not answered because they were conditioned upon an affirmative answer to Issue 3-A. (14) The preponderance of the evidence did not show that plaintiff’s failure to see the greasy substance before he stepped therein was neglignce; and (17) the preponderance of the evidence did not show that such greasy substance was .open and obvious to plaintiff. (21) The preponderance of the evidence did not show that plaintiff failed to keep a proper lookout as to the condition of the deck at the place where he fell. (25) The preponderance of the evidence did not ^how’t'hat the accumulation of such greasy substance was caused by plaintiff’s permitting oil to escape from the drum he was emptying just before his fall. (26) The preponderance of the, evidence did not show that plaintiff failed to inspect the condition of the deck where he was working prior to his fall. (Issue 6) Defendant failed to furnish plaintiff assistance in emptying the drums of oil. (7) This failure was negligence, and (8) this negligence was a proximate cause of plaintiff’s injuries. • (Issue 12) Plaintiff’s damages from defendant’s negligence were assessed at $29,-348. (Issue 13) $2700 would provide reasonable medical care and maintenance such as had already been or might be in the immediate future necessary and proper in the treatment of plaintiff’s injury. The .only findings convicting defendant of negligence were those made under Issues 6, 7 and 8; and defendant filed a motion, alleging that these findings had no support in the evidence and praying that said findings be disregarded. Plaintiff moved for judgment upon the verdict for the sums found in damages and for maintenance and care. The trial court found that Issues 6, 7 and 8 had no support in the evidence, granted defendant’s motion and rendered judgment in disregard of the findings made under said issues, denying plaintiff any recovery of damages from defendant. Upon plaintiff’s claim for maintenance and cure, the trial court rendered judgment in behalf of plaintiff for the sum found by the jury, to-wit, $2700. Both parties excepted to this judgment and each has taken an appeal therefrom. We shall consider first the plaintiff’s appeal and next, .the defendant’s Points Filed in Plaintiff’s Appeal. Plaintiff has filed IS Points of Error for reversal but these points raise only two contentions, as follows: First: The findings under Issues 6, 7 and 8 were supported by the proof and thus the trial court should have rendered judgment upon said findings in plaintiff’s behalf for the sum in damages found under Issue 12. Second: In the alternative, if defendant’s motion was good, the trial court,' for various reasons, erred in conditioning Issues 4 and 5 upon an affirmative answer to Issue 3-A. As stated above, Issues 4 and 5' submitted the questions of negligence and proximate cause respecting the subject matter of Issue 3, that is, defendant’s allowing the grease in which plaintiff trod to be upon the deck. The following proof is relevant to these contentions, and since the trial court’s act in disregarding the findings under Issues 6, 7 and 8 can only be reviewed upon a consideration of the whole relevant proof, we state this in detail: Plaintiff was engaged in emptying a drum of oil into a pipe leading from the deck into the engine room when 'he fell. This oil went into the ship’s engines and lubricated them; and it was customary to put several drums of this engine oil into this pipe while the ship was at sea, usually about two days after leaving port. This pipe was at the rear of the ship; and plaintiff said that previously, on the day already mentioned, he and either one or two other seamen had been directed by the First Assistant Engineer, who was their superior officer, to move 5 or 6 drums of this engine oil from another part of the ship, where the drums were stored, to a place near this pipe where they might be conveniently emptied into the pipe, and that they had done this, rolling the barrels along the deck to a place near the pipe, where the barrels were then placed upon end. After these 5 or 6 barrels had been moved in this way, the First Assistant Engineer directed plaintiff to empty the barrels into the pipe, and he sent the other seaman or seamen, off to do something else. At any rate, plaintiff was left alone to empty the barrels. The barrels were made of steel, contained 50 or 55 gallons of engine oil, and when full were very heavy. The First Assistant Engineer testified that one of these barrels would weigh “something like 350 or 400 pounds.” Simple machinery, referred to in the proof as a chain fall, was provided for emptying these barrels, and-this equipment and the procedure followed by plaintiff in emptying the barrels may be described as follows: The chain fall consisted of steel chains running through a steel block which 'hung from a beam above the opening. of the pipe. It contained a device which made it self-locking so that when plaintiff lifted a barrel with this fall, the barrel was held suspended by the fall, without assistance from the plaintiff. The fall itself, was a short distance (some.2 or 3 feet, we infer) from the opening of the pipe. At the lower end of the fall there was a heavy steel hook. The opening of the pipe was flush with the deck and was closed with a screw plug when not in use. In order to empty a barrel of oil into the pipe, this plug was removed; an ell pipe with a closed valve in it was screwed into the top of the barrel, in an opening made for that purpose; a sling of steel chain, called a barrel sling, with hooks at each end, was attached to the barrel by putting the hooks over the rims at the two ends of the barrel; the hook at the bottom of the chain fall was put under this sling; the person operating the fall then tugged upon it and doubtless tilted the barrel at the same time, thus lifting the barrel and turning it so that it became parallel with the deck; and when the barrel was an appropriate distance above the deck and turned in this way, the ell pipe in the end of the barrel was brought around and screwed into the mouth of the pipe in the deck. While this connection was being made, the locking device in the fall supported the -barrel automatically. According to the First Assistant-'Engineer, although the plaintiff does not mention it, another opening referred to by' the engineer as the “bleeder” was then made in the top of the drum, and then the valve in the ell was opened and the oil was allowed to drain out of the barrel into the pipe. Usually, the barrel being about level as it hung in the chain fall, a few gallons of oil would remain until the barrel was tilted, and two methods of tilting the barrel as it hung in the fall are mentioned in the proof. The 'Chief Engineer who testified that he had devised this machinery and this method of getting the oil into the engine room, said that the barrel was tilted “by moving the hook to one end of the drum”. The First Assistant Engineer, who testified that he almost always emptied these barrels himself, said that he tilted the barrel in the same way. He said: “All you have to do is move the hook and pull it up with the chain fall.” Plaintiff, who seems to have been of the opinion that this method would have put some strain upon the various connections, said he devised another method which is described hereinafter. Plaintiff said that when he had ‘emptied a barrel, he disconnected it from the pipe, then lowered the barrel to the deck in the chain fall, then unhooked the barrel sling from the drum, then rolled the empty drum out of the way, and then repeated the entire procedure with another barrel. Plaintiff had not done this work before, but he said that the First Assistant Engineer gave him some information concerning the use of the machinery and that he had handled chain falls before. Plaintiff was then left alone to empty the barrels and he proceeded,.without assistance, to do this in the fashion indicated aboye, and without assistance he emptied either two of three of these barrels and safely connected and drained all of the oil from another barrel, except, however, according to him, some 6 or 7 gallons, or perhaps 7 or 8 gallons (of course, he actually knew no more than that only á small quantity remained in the barrel). He said that the barrel then had to be tilted to get this oil out of it; and to do this he went to the end of the barrel, took hold of the end of the barrel with both hands and lifted it. When he assumed this position his right foot trod upon a small quantity of grease and when he attempted to tilt the barrel, 'this foot slipped from beneath him and he sat down heavily upon the deck. This fall, according to plaintiff’s theory of the facts, caused the rupture of the intervertebral disc upon which his claim of damages was primarily founded. Plaintiff 'had employed this method of tilting the barrels in emptying the two or three barrels which he had disposed of before he fell. Plaintiff said that he got up and immediately reported this incident to the First Assistant Engineer, that this officer directed him to return to work,, and that he complied with the order and finished emptying the remaining barrels of oil into-the pipe. Then, he said, he went to his bed and lay there until he felt better. At the time of his fall, plaintiff was 22 years old, weighed about 152 pounds (not 145 pounds, as plaintiff says in his brief), and- was in good health. He had been employed by defendant as a seaman for about four months and had previously made three voyages for defendant, two of them on the ship Gulf of Venezuela and one on the Gulf of Mexico, the ship on which 'he was emptying the oil. He said that before defendant employed him, he had worked for employers who required-him to pass physical examinations and that he actually passed these examinations; and it is evident that he was not physically deficient in' any way. Plaintiff estimated that the oil remaining in the barrel when he attempted to tilt the barrel would weigh “around 50 or 60 pounds”, ‘ and that the barrel would weigh about 20 pounds, or perhaps between 20 and 30 pounds. At the time," of course, he was not lifting this' weight; the chain fall held up the barrel without any assistance from liim, and when he attempted to tilt the barrel, necessarily a considerable part of this weight was supported by the steel pipe screwed into the end of the barrel and the opening in the deck. According to some of defendant’s proof, the top of the barrel, into which the ell pipe had'been inserted, was flexible; but doubtless it offered some resistancé to being flexed, although it could not have been much since the end of the barrel need not have been lifted very much, Plaintiff, - however, said that he required both hands to lift up the end of the barrel, and that he was using both hands when he fell upon the deck. He said that, if he had had the assistance of another man he would have performed his task more safely. He said that he did not know whether he could lift the rear end" of the barrel with one hand; “it was pretty heavy.” Further: “Q. You could easily do that yourself, couldn’t you? A. Well, its a pretty hard job; it was a 2 man job. “Q. A 2 man job to lift up the rear end of the drum? A. Yes, sir, a 2 man job to handle those drums around there and get them hooked up and all. There was three of us to roll them up there. “Q. You don’t say it’s a 2 man job to just tilt up the rear end of the drum after you got it in the chain hoist and all- the oil gone out with the exception of 6 or 7 gallons? A. Its pretty straining on one man. “Q. To pick up the rear end-of a barrel with about 6 or 7 gallons of oil in it? A. Yes, sir. “Q. Which weighed, according to your estimate, about 60 pounds? A. Yes, sir. “Q. With the drum hanging from the chain hoist? A. Yes, sir. “Q. That is a strain for one man to do? A. Yes, sir. “Q. You did it all right .on the other barrels? A. Yes, sir, I did it all right. “Q. Nothing happened to you? A. No, sir. “Q. You didn’t ask for any help. A. I asked the First to let one stay around, and he said he would let one come back when they got through with the engine room.” This request must necessarily have been made before plaintiff began to empty the barrels, long before he fell. There was some proof that when the First Assistant Engineer did not empty these barrels himself (and he usually did this himself), he customarily sent two men to ,do the work. Thus plaintiff said that two men were ’ usually assigned to empty these barrels. The First Assistant Engineer first testified with reference to emptying these barrels, that “I dumped that myself. I do it myself most of the time because I get over time — You might .say 98% of the time”, but that “if I have something else to do, then I have to 'have somebody else to do it.” He subsequently testified that .one of these barrels held “anywhere from 50 to 55 gallons” and weighed “something like 350 to 400 pounds; and I don’t believe the average man today can .do it. (Plaintiff has interpreted this statement as expressing an opinion that one ordinary man could not empty the barrels, but it certainly has no application to the plaintiff’s effort to tilt the barrel, which was the occasion of his fall. A consideration of his testimony shows that he very obviously 'believed the contrary). “Q. Now since it is that heavy, how do you go about emptying this drum of oil so that it will go down this pipe into the engine room? A. I have a fitting that I make for that purpose. — It is a valve and nipple and screws into the drum and the other half of it screws into the deck in a' union.” He then proceeded to describe the method of connecting the drum to the pipe in the deck, and described the use of the chain fill and other matters already mentioned. Subsequently he testified: “Q. How many men usually, attend to emptying these drums of .oil ? A. I attend to that alone. “Q. Does it require the work of two men to do that? A. No, when I dump it myself I do it alone. “Q. Could any man that knows anything about it, could he do it by himself? A. Yes, sir, because there is no lifting to do. All you have to do is screw the fitting into the drum and tilt it over. “Q. Did you ever at any time when you might have directed somebody else to do it, have 2 or 3 men. to do the job ? A. If I don’t do it myself I have two men do it. “Q. If Raymond Hopson ever did this work — A. He would have had a helper. “Q. If you gave him a helper would you have pulled the helper away? A. No, sir, not until the job was finished.” The 'Chief Engineer testified that one man usually attended to dumping this oil. “Q. Would you say that’s a heavy job for one man to do? A. No. “Q. Who usually does that? A. Well, the majority of time the First Assistant Engineer does it.” And defendant’s Port Engineer, Roberts, testified: “Q. When you have noticed the dump^ ing of oil, I’ll ask you in your knowledge of the work involved, is that a 1 man or a 2 man job? A. One man can handle it very easily. “Q. Was there ever any great stress and strain on a man in raising that barrel with a .chain fall? A. No, sir, I have done it a number of times myself without any trouble. “Q. No stress or strain involved in connecting the union is there ? A. Oh, no. “Q. Just a matter of getting the two ends together? A. Just a matter of connecting the two unions is all.” There is no proof of what parts of the task the two men did together when two men were sent to empty the drums. Plaintiff testified that he had never seen any one do this work, and thus, of course, did not know what part of the work two men did together, or how the two coordinated their efforts. According to Defendant’s Chief Engineer, First Assistant Engineer, and Port Engineer, the deck was covered with a composition material which had a non-skid surface. Plaintiff thought that the deck was of painted steel. Plis description of the deck where he performed his task affirmatively showed that the grease on which he slipped was the only substance at that place which might have caused him to fall. He said: “Q. What was the condition of the deck at that place right before you fell ? A. Well, it was clean, as far as I know, except where this ordinary seaman that was working on the back was cleaning * * * I guess you would call it a winch.” Further: “Q. Now, Mr. Hopson, when you connected up the first barrel to the pipe in the deck, you didn’t see any oil on the deck, did you? A. No, sir. “Q. Didn’t see any grease spot, did you? A. No, sir. “Q. You didn’t see any paint ,or anything like that there? A. Nothing except old paint that they had chipped off. “Q. I mean, nothing that you could slip on. A. No, sir. “Q. When you disconnected the first drum and then connected up the second drum, you still didn’t see any oil or grease there on the deck, did you? A. No, sir, nothing just except what paint that they had knocked off. “Q. That was dry, wasn’t it? A. Yes, sir.” He said further that it was not until after his fall that he observed the grease spot. Plaintiff said that he fell because his right foot stepped into a small spot of grease on the deck; that what caused him to fall was. stepping in that spot of oil or grease. As far as he knew that is the only thing that caused him to fall; except for this spot of grease he would not have fallen. He said that he knew that he had slipped in this grease because “it was on my shoe and it made a streak whenever I slipped and fell.” The proof does not refer to the condition of the surface of the sea. Plaintiff testified that his fall occurred about one or two o’clock in the afternoon, although it would seem that the incident probably occurred a little later, but, at any rate, during the afternoon and in the day light. Plaintiff said that to connect and empty a barrel into the pipe required 15 or 20 minutes 'So that, according to his figures, he must have been engaged in emptying the barrels for an hour or more when he attempted to tilt the barrel and fell. The First Assistant Engineer testified that about three hours was required to empty five barrels, a somewhat longer period of time than plaintiff’s figures show. According to plaintiff, he worked continuously at the process of emptying the barrels from the time he began to do that until the moment he fell. Plaintiff said that the spot of grease was “almost under the end of the drum” he was lifting, and he gave other testimony to the same effect. Necessarily, this spot of grease had to he very near the end of the barrel in order for paintiff to put his right foot upon it while he was stooping over and attempting to lift the end of the barrel. Plaintiff said that the spot of grease was small, perhaps 4 or 5 inches across. Plaintiff said that this grease differed from the oil in the barrels, that it was darker in color and looked as if it had been used, and “was more of a grease.” it was dark, thicker than regular lube. He once said: “This wasn’t the kind of grease I was using.” It is a matter for speculation where the grease came from, but the proof suggests the following possibilities: While plaintiff was at work, and before he fell, some seamen were near him who were engaged in cleaning and painting some machines. Plaintiff said that the nearest of these machines (or men) was about 8 feet away from him and that the others were about 12 feet away. On pre-trial deposition he had put the nearest of these seamen some 20 feet away from him. The proof does not clearly show what this machinery was, its structure or form. Plaintiff once said concerning one of these machines: “I guess you would call it a winch.” Nor does the proof show how the machinery was being cleaned, or what equipment was being used for that purpose. Plaintiff said, however, that these machines had dirt and grease upon them. Plaintiff said that he had no idea how the grease got upon the deck, “without it was something that they had knocked off whenever they were cleaning that machinery up back there and it got there some way.” It was plaintiff’s theory that these seamen caused the grease to be upon the deck, but this is as definite' as his proof ever was. Defendant on the other hand adduced some proof tending to show that if the connection between the barrel and the opening of the pipe in the deck was not secure, or if the valve in the ell pipe was not securely closed, some oil might leak out upon the deck, and also tending to show that during the process of emptying two or three barrels before attempting to empty the barrel which Caused him to fall, some oil might have accumulated upon this ell pipe and run down the bottom side of the barrel. The First Assistant Engineer also gave some testimony to the effect that no other oil was used in that area of the deck. There are other possibilities which are not discussed in the proof, namely, that this grease came off the bottom of one of the barrels, or that it was put upon the deck at some undisclosed time, and was concealed from the plaintiff’s view by one of the barrels until he came to empty the one which he was draining when he fell. The proof does not show the condition of the barrels, and there1 is no proof that anyone saw the grease before plaintiff did. It was also a matter for .speculation as to when this spot of grease was put upon the deck. Plaintiff said that he did not see the grease until after he fell. Before that time he had seen nothing “except old paint that they had chipped off”. It may reasonably be inferred that “they” refers to the seamen who were cleaning the machines near him. As previously stated, he said that he had worked continuously at this place since he had begun to empty these barrels and according to his estimate of the time required to connect and empty a barrel, he must have been at this place about an hour or more before he trod upon the grease. Also as previously stated, plaintiff was at work during the afternoon of April 6, 1946, and he testified once that his fall occurred around 1 or 2 o’clock in the afternoon, “the best I remember”. He also testified as follows : “Q. There was no reason why you could not have seen the spot of oil before the time you did if it was there, was there? A. Well, it could have got there while I was pulling the chain hoist up. “Q. Well, that was' right where you were working, was it not? A. Yes, sir, it is right close to where I was working. “Q. I show you again defendant’s exhibit. * * * Now, as I recall your testimony yesterday, you were lifting up on the rear of this drum at the time you fell; is that correct?" A. Yes, sir. “Q. And as I recall yoúr testimony yesterday, this spot of oil or grease you testified about was almost directly under the rear end of that drum? A. Yes, sir. “Q. In other words, you would be the one that was working right around that spot all that time; is that correct? A. Well, not at that time; I would-be working over here on the other side of this drum. “Q. But all the time you were handling the drum, you would be within 2 or 3 feet of — this spot — would you not? A. Yes, sir. “Q. Do you know of any reason why you could not have seen it before if it was there ? A. Well, if it was there before that time, if it hadn’t have got there 'while I was lifting on the chain hoist, I don’t know how it got there. “Q. The drum that was empty was disconnected from the'pipe on the deck? A. Yes, sir. “Q. Then you would let the chain hoist down and the drum go back to the deck? A. Yes, sir. “Q. You would unhook your barrel sling from the drum? A. Yes, sir. "Q. What did you do with the empty drum? A. Roll it back out of the way. “Q. Then you would get ready to put a full drum back in there and empty it? A. Yes, sir. “Q. And during that time you must have been walking right over that identical spot where you later saw the oil or grease ? A. Somewhere in 2 or 3 foot of it. “Q. You had emptied, you say, 2 or 3 barrels before the accident happened? A. Yes, sir. “Q. And you never saw any grease or oil there during that time? A. No; sir.” Plaintiff also said that “whoever on the ship poured out' any grease was supposed to mop it up.” * - * ⅛ * * * Plaintiff’s Points 1 to- 9, inclusive,' assign error to the action of the trial court, sustaining defendant’s-motion'to disregard the findings under Issues 6, 7 and 8. In response to these' issues the jury found that defendant failed to furnish plaintiff assistance in emptying the barrels of oil, that this conduct was negligence, and that this negligence was a -proximate cause of plaintiff’s injuries. Plaintiff says that the proof supports these findings. In elaborating this argument, plaintiff has stated his construction of the proof, and with plaintiff’s construction of several items we do not agree. Our own construction of such of these items as seem of any real significance has been set out in our preliminary statement. We think that the proof does support the finding under Issue 6. Defendant argues to the contrary because one or more seamen had a part in moving the barrels to the place where these barrels were to- be emptied; but we construe Issue 6 as referring to the period of time beginning after the barrels had been brought' to this place, the period during which plaintiff was engaged in pouring the oil into the pipe, and all of the relevant proof shows that if the plaintiff did this, as he said, then he did it alone. Considering next the finding under Issue 7, it must also be said that, because of the very general language in which Issue 7 is found, there is evidence to support the jury’s finding of negligence under this issue. Special Issue 7 is not confined to the incident which resulted in plaintiff’s injuries, namely, plaintiff’s effort to tilt the barrel. Instead, Issue 7 apparently refers to the same period of time which is referred to in Special Issue 6, and as we have stated, Issue 6 is to be construed as referring to the period during which plaintiff emptied the barrels of oil into the pipe. ■The proof which tends to show that if defendant had exercised due care regarding plaintiff during- the time covered by Issues 6 and 7, said defendant would have provided plaintiff with an assistant, is the testimony about the weight of the barrels and-about the manner of getting those barrels into the chain fall, and the testimony that the First Assistant Engineer always assigned two men to perform this task whenever he assigned anyone at all to- do that This proof has been stated. Of course, from the fact that the task, of emptying the barrels should have been assigned to 2 men, it does not follow that every act to be done in emptying the barrels of oil required 2 men to'perform it; and the testimony to which wé have just referred does not show that an assistant was required for the performance of the act which terminated in plaintiff’s injury, namely, plaintiff’s effort to tilt the barrel of oil. Our conclusion that the proof supports the finding under Issue 7 is based upon general language of said issue, which apparently refers to the entire period of time required for emptying the barrels arid the entire procedure to be followed in doing this. These conclusions bring us to a consideration of the finding in response to Issue 8, that the negligence found under Issue 7 was a proximate cause of plaintiff’s injuries, and we hold that the proof does not support this finding, and that the trial court did not err in disregarding said firiding. As a consequence, the trial court’s error in disregarding the findings under Issues 6 and 7 is immaterial. Proximate cause as defined by the trial court included the element of causation in fact and the element of anticipation of consequences. In determining whether these elements were proved it is to be kept in mind that from proof that two men should have been assigned to the task of emptying the oil into the pipe, it need not be inferred that every step in the process of emptying those barrels required the services of two men. ’ Causation in fact was not proved, because the evidence does not show that plaintiff’s having an assistant would have prevented •plaintiff’s fall. The plaintiff’s fall was actually caused by plaintiff’s slipping upon a spot of grease. There is nothing to show that plaintiff would have slipped upon the deck surface had the grease riot been on the deck; indeed, all of the circumstances are to the contrary. Plaintiff’s exertion in tilting the barrel did not-injure him. The barrel itself did not injure him. His loss of control of the barrel when he fell did not injure him; the barrel apparently remained hanging in the chain fall, connected tiPthe deck. In what way, then, can it be said that the lack of an assistant caused plaintiff to fall? If plaintiff .had had an assistant, would this assistant' have prevented plaintiff’s fall? Presumably not, since if an assistant really was needed, plaintiff would still have- had to exert himself and thus would have engendered fo-rce sufficient to move him over the surface of the grease— if his own weight of 152 -lbs. would not have done that. Can it be said that if plaintiff had had an assistant, -he would have avoided the spot of grease? This is wholly a matter for speculation, and for that reason the existence of the possibility cannot be given any significance. These comments lead Us to the conclusion that plaintiff’s lack of ari assistant did not contribute substantially to bringing about his fall, and thus did not in fact amount to a cause of the plaintiff’s fall. Anticipation of consequences was not proved because the incident which occurred wás not within the scope of the apparent risk of harm to plaintiff attendant upon' defendant’s failure to provide plaintiff- with a.n assistant. Defendant’s only duty to plaintiff which may be considered at this point is that consequent upon the finding under Issue 6, namely, the duty to provide an assistant for plaintiff; and the matter of anticipation of consequences must be determined 'by fixing the limits of the apparent risk of harm to plaintiff attending a breach of this single duty and of no other. The apparent risk of harm to plaintiff attending a negligent breach of this duty was limited to the sort of incident which might reasonably have been expected to happeri if plaintiff did not have an 'assistant. Now, it may be that plaintiff’s lack of an assistant charged defendant with notice that plaintiff might be hurt while placing the full barrels •in position in the chain fall, but it seems obvious to us that plaintiff actually needed no assistance in tilting the nearly empty barrel as it hung in the chain fall and we have not been able to perceive why defendant ought to have expected that plaintiff’s performance of this act without aid would subject plaintiff to any probable danger of injury. Surely, defendant need not have anticipated — as a consequence of plaintiff’s lack of assistance — an incident of the sort which actually did occur, namely, that plaintiff would tread upon grease and would slip on the grease and fall. Plaintiff did not slip on the deck; he slipped on the grease. It must be kept in mind that defendant need only have anticipated such apparent hazards as a reasonable man would have sought to avoid. Thus, in Webb’s Pollock on Torts, it is said: “If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable" man, • then, to whose ideal be-haviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.” (p. 45). It must also be kept in mind, as we have already stated, that anticipation of consequences is limited to the very duty invoked by plaintiff. It must also be kept in mind that defendant is only charged with the necessity of anticipating such incidents as fall within the scope of the apparent risk of harm attendant upon a breach of this particular duty; defendant is not to be held liable in this State merely because some injury to plaintiff might have been anticipated. The following decisions are instances of one kind or another in which the two rules of decision last stated have been applied: Texas & Pacific Ry. Co. v. Bigham, 90 Tex: 223, 38 S.W. 162; Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S .W.2d 847; Seale v. Gulf C. & S. F. Ry. Co., 65 Tex. 274; Trinity & B. V. Ry. Co. v. Blackshear, 106 Tex. 515, 172 S.W. 544, L.R.A.1915D, 278; Missouri K. & T. Ry. Co. v. Welch, 100 Tex. 118; 94 S.W. 333; Doty v. Ft. Worth & Denver City Ry. Co., 127 Tex. 521, 95 S.W.2d 104. These decisions are cited only as proof that the two rules last stated actually do exist and are enforced in this State. For general discussions see “Rationale of Proximate Cause” by Leon Green: Chapter 8 of Prosser on Torts; Chapters 6 and 8 o.f Harper on Torts. The question before us, therefore, is not whether defendant is to be charged with notice of a unique sequence of events; it is simply whether the incident which occurred was of the sort within the apparent limits of the risk of harm to plaintiff attending defendanfs failure to provide plaintiff with assistance, and we hold, as a matter of law, that it was not of this sort. Plaintiff’s Points 1 to 9; inclusive, are overruled insofar as these points assign error to the trial court’s act in disregarding the finding under Issue 8. Said Points are sustained insofar as they assign error to the trial court’s action in disregarding the findings under Issues 6 and 7. As previously stated, error in disregarding the findings under Issues 6 and 7 is immaterial because it was proper for the trial court to disregard the finding under Issue 8. Plaintiff’s Points 10 to 14, inclusive, assign error to the trial court’s charge to the jury. Plaintiff’s Point 14 assigns error to the trial court’s refusal to submit-plaintiff’s Requested Issue 4; but this action of the trial court was not attacked in plaintiff’s motion for new trial, and Point 14 must therefore be overruled because the subject matter thereof was waived, the cause having been, tried to a jury. Texas Rules of Civil Procedure, Rules 320 and 324. The matter is of no consequence to plaintiff since the only difference between the trial court’s Issue 4 and plaintiff’s Requested Issue 4 is the condition appended to the trial court’s Issue 4; and this condition was attacked in the objections brought forward in other Points. Plaintiff’s Points 10, 11 and 12 assign error to the conditioning of Issue 4 upon an affirmative answer to Issue 3-A. Since Issue 3-A was answered negatively, Issue 4 was not answered, nor was Issue 5, which was conditioned upon an affirmative answer to Issue 4. Plaintiff’s Point 13 assigns error to the submission of Issue 3-A. Issues 3 to 5, inclusive, with the findings under Issues 3 and 3-A were: Special Issue No. 3. Do you find from a preponderance of the evidence that the defendant, acting by and through its agent, servants, and employees other than the plaintiff Hopson, allowed a greasy substance to be on the deck of said* vessel at and near the place the plaintiff Raymond Hopson was emptying oil? To which the jury -answered, “Yes”. If you have answered special issue No. 3 “Yes” and only in that event, then answer the following: Special Issue 3-A. Do you find from a preponderance of the evidence that the defendant allowed said greasy substance, if any, to remain on said deck for such period of time that in the exercise of ordinary care the same should have been discovered and removed prior to the fall, if any, of the plaintiff? To- which the jury .answered, “No”. If you have answered special issue No. 3-A “Yes”, then answer the following: . Special Issue No. 4. Do you find from a preponderance of the evidence that the defendant’s act in allowing a greasy substance to be on the deck of said vessel at or .near the place Raymond Hopson was emptying oil (if you have so found) was negligence ? To which the jury did not answer. If you have answered special Issue No. 4 “Yes”, then answer the following: Special Issue No. 5. Do you find from a preponderance of the evidence that the negligence, if any, of the defendant in allowing a greasy substance to be on the deck of said vessel (if you have so found) was a proximate cause of plaintiff’s injuries, if any? To which the jury did not answer. The objections brought forward ■ -in Points 10 to 13, inclusive, will be discussed in an order differing from the order in which these objections were presented to the trial court. Point 13 brings forward plaintiff’s objections 4 and 5, which were, in form, objections to the submission of Issue 3-A, and which may be fairly summarized as follows: — Issue 3-A was not an ultimate issue because defendant owed plaintiff the absolute duty to furnish him a safe place to work, and breach of this duty was adequately submitted in Issue 3. Point 13 is overruled. At- bottom, it seems to be a contention that defendant was an insurer of the safety of plaintiff’s place of work. If we assume that the particular hazard which caused plaintiff’s injuries amounted to unseaworthiness (and we are inclined to think that it did not) then, had plaintiff founded his suit upon a breach of the defendant’s obligation to provide a seaworthy ship and had claimed indemnity under the general maritime law, defendant’s obligation to plaintiff might have been about that of an insurer since the particular hazard was not concealed. See: Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. However, plaintiff did not sue upon this theory. He exercised, instead, the election granted him by the Jones Act and brought his suit upon that statute, claiming damages .from defendant’s negligence, and he tried the suit upon that theory. , His election, with its attendant advantages, therefore -binds him on this appeal and he cannot assert'in this court rights which he might have had against defendant for indemnity under the 'general maritime law. See: Skolar v. Lehigh Valley R. Co., 2 Cir., 60 F.2d 893; Kuhlman v. W. & A. Fletcher Co., 3 Cir., 20 F.2d 465; Brown v. C. D. Mallory & Co., 3 Cir., 122 F.2d 98; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220. As a -consequence, plaintiff’s rights against defendant because of a hazard attending plaintiff’s place ‘ of work depend upon Defendant’s: exercise of due care; the obligation which defendant owed plaintiff was only a duty to use proper care to make plaintiff’s place of work safe for him. It may be true, that this duty is more liberally applied in favor of the seaman than the common law duty of a master to his servant is applied;' but defendant’s duty to plaintiff may nevertheless be described in the same terms as are used to describe the common law duty of the master. In Missouri, K & T Ry. Co. v. Jones; 103 Tex. 187, 125 S.W. 309, 310, the plaintiff, who was a switchman in defendant’s employ, trod upon á bolt on the trackway in defendant’s yard, and was thrown across the track and injured by the locomotive which he was attending. The nature and extent of the railway company’s duty to this' switchman is indicated by this language of the Supreme Court: “In order to constitute it (that is, negligence by defendant’s other employees), the bolt must have been put on the track by some employe, or its presence there must have been known to some of them before the accident, or must have continued long enough to justify the inference that the failure to know it was due to a want of the proper care.” This quotation aptly defines the duty owed plaintiff by defendant, on which plaintiff must depend for recovery of damages under the Jones Act. In the briefs which plaintiff has filed on his appeal, he has made an argument which he may have intended to refer to Point 13, and if this construction is right, he has gone beyond the scope of the objections-on which Point 13 is based. The argument mentioned seems to be this (and it is especially urged in plaintiff’s Replication of defendant’s Reply brief) that Issue 3-A was immaterial for another reason, to-wit, proof that defendant actually put the grease upon the deck, whereby defendant was charged, as a matter of law, with knowing that the grease was on the deck. This ground of immateriality was not presented to the trial -court; and since another ground was, namely, that discussed in the paragraph immediately above, to which the trial court’s attention was necessarily directed and confined, enforcement of this additional and new ground of immateriality would seem to be inconsistent with the trial court’s right to proceed upon the basis of the very objection made to him and to have been waived, for that reason. It would seem, too, that unless the proof shows as a matter of law (and it certainly does not) that defendant put the grease upon the deck, the subject matter of Issue 3-A would still be as material as a special issue inquiring whether defendant did put the grease upon the deck. In any event, regardless of the matters to which we have just referred, defendant’s argument that Issue 3-A was immaterial because of proof that defendant put the grease upon the deck, is overruled upon grounds discussed hereinafter under Points 10 and 11. Point 12 brings forward plaintiff’s objection 3, which was made to the conditioning of Issue 4 upon Issue 3-A, and which was as follows: — “By said conditional submission the court takes unto itself the right to determine an ultimate issue of fact and denies this plaintiff the right to have the jury pass upon said ultimate issue except conditionally.” Point 12 is overruled. The general rule as to the conditioning of one issue upon an answer to another issue has been stated as follows: “As a general rule, an instruction to the jury not to answer a given special issue in case another special issue be answered in a specified way is not improper. Exceptions to the rule depend on the existence of special conditions which render such an instruction improper in the particular case.” Perkins v. Nevill, Tex. Com.App., 58 S.W.2d 50, at page 52. The only grounds for not applying this general rule which have been suggested in the objection brought forward in Point 12 are these, namely, that Issue 4 was an ultimate issue and that by conditioning Issue 4 on Issue 3-A the trial court had determined an issue of fact. Obviously, both grounds are inconsistent with the general rule stated and thus cannot be exceptions to the rule. It is not a matter of whether the objection was sufficiently specific, but whether the very objection made was good. Issue 4 submitted negligence. This is always an ultimate issue in actions for damages founded upon negligence .(unless the proof shows negligence as a matter of law); yet it is generally conditioned upon a prior finding, usually one inquiring as to conduct of the particular defendant. However, it may be conditioned upon one inquiring as to 'the defendant’s actual or constructive knowledge of ,a condition. See: Echols v. Duke, Tex.Civ.App., 102 S.W.2d 483, and the decisions hereinafter cited, adjudicating actions by an invitee against the occupant of land. Points 10 and 11 assign error to the conditioning of Issue 4 upon an answer to Issue 3-A and bring forward plaintiff’s objections 1 and 2. In these objections plaintiff says quite plainly that Issue 4 ought not to have been conditioned upon Issue 3-A, but the only reason assigned is that Issue 4 was an ultimate issue of fact. It is not enough to say that Issue 4 was an ultimate issue. Negligence is usually an ultimate issue and it is usually submitted in conditional form. To tell the trial court that Issue 4 ought not to have been conditioned upon Issue 3-A was not, alone, sufficiently specific. For this objection might have been good for various reasons, none of which had any relation to any other. Thus 3-A might have -been immaterial in law; or it might not have been raised by the evidence; or it might have been too narrow under the proof and deprived plaintiff of a right to have the jury consider certain evidence; or it might have been defective in form. Here are four distinct grounds for an objection that Issue 4 ought not to have been conditioned on Issue 3-A; but none of these is mentioned and the trial court could not have known, from reading plaintiff’s objections 1 and 2, whether all, or some,, or one was advanced, or indeed, whether plaintiff actually had these particular grounds in mind. The statement that Issue 4 was an ultimate issue might suggest that 4 had no relation to the subject matter of 3-A; but it clearly did. And the statement that 4 was an ultimate issue might suggest that the question asked in 3-A need not be answered before Issue 4 was answered; but this is simply saying in. another way. that Issue 4 ought not to. have, been conditioned on Issue 3-A. We construe objections 1 and 2 as advancing only one ground of error in the condition-, ing of Issue 4 on Issue 3-A, namely, that Issue 4 was an ultimate issue of, fact. And we hold that the trial court properly, overruled this ground, not because it was insufficient but because it presented no error. Plaintiff argues, however, that Issue 4 ought not to have been conditioned on Issue 3-A because Issue 3-A was immaterial, and he argues now that 3-A was immaterial because, so he says, there is proof that the seamen working near plaintiff negligently put the grease on the deck. We understand " him as meaning that whether defendant had actual or constructive knowledge of the grease in time to have removed it before plaintiff trod on the grease is an .immaterial inquiry in such a case. He cites and especially relies upon the following language of the District Court of Appeals (California) in Adams v. American President Lines, Ltd., 140 P.2d 47, 52, affirmed 23 Cal.2d 681, 146 P.2d 1: “Nor was it necessáry for the plaintiff to establish that the defendant had actual or constructive knowledge of the presence of the orange peel on the stairway. Such proof is necessary only where the dangerous condition is brought about by natural wear and tea!r, or third persons, or acts of God, or by other causes which are not due to the negligence of the owner or his employees. Where, as here, the dangerous condition is brought about by the employees acting within the scope of their employment, knowledge of the condition is imputed to the defendant as a matter of law”, (Note that this statement would not impute knowledge unless, negligence was first found). I think that this .argument must be denied upon three several propositions, to the first of which and only to this do1 my associates agree. One has already been mentioned in our discussion of Point 13, namely, that this particular ground of immateriality was not presented to the trial court although another one was, and by specifying this other ground of immateriality plaintiff had waived the one he now insists on. Proposition two: A second answer to plaintiff’s argument is my disagreement with plaintiff’s construction of the proof; I think that the proof concerning the seamen does not show that the seamen caused the grease to be upon the deck, and I think, too, that if the jury could infer from the circumstances in proof that defendant, in some way, did cause the grease to be upon the deck, they could not say whether defendant did so deliberately, negligently or accidentally, and that the proof raised Issue 3-A, if it raised any issue in that set, beginning with 3. Under the objections before us, it is not necessary for us to determine whether any other issue was also raised. Proposition three: Finally, the third answer to plaintiff’s argument is this: (a) This argument invokes a single and particular duty, namely, a duty not to create a condition dangerous to the plaintiff, (b) However, this duty was not submitted to the jury, (c) Instead, the trial court in Issues '3, 4 and 5, submitted a duty to abate 'a conr dition dangerous to the plaintiff, (d) Under these issues, the only function which evidence that defendant put the grease on the deck could have served was to prove that defendant knew about the grease in time to have removed it before plaintiff fell, (e) This knowledge in time would actually have been put to the jury in Issues 3, 4 and 5 had Issue 3-A not been submitted, and it therefore cannot have been error for the trial court to segregate this element of the inquiry and submit it in a single special issue, namely, Issue 3-A. Before considering the last two of these various answers to plaintiff’s argument, the first having been already discussed, I have to point out that the only objections before us (which we have not discussed in adjudicating Points 10, 11, 12, 13 -and 14) attack the conditioning of issue 4 upon Issue 3-A. No objection was made to the form of Issue 3-A. Plaintiff’s arguments suggest a contention that Issue 3-A was not pleaded; but it clearly was within the scope of plaintiff’s allegations if we have correctly described defendant’s duty to plaintiff. Too, the lack of pleading to support Issue 3-A was not brought to the trial court’s attention, and ordinarily the lack of pleading would be immaterial. See: Christopherson v. Whittle-sey, Tex.Civ.App., 197 S.W.2d 384, and the ■accompanying decisions cited in the concluding remarks of our discussion of defendant’s Point 2. Plaintiff’s' argument also suggests a contention that the finding under Issue 3-A was not supported by the proof;- but the sufficiency of the proof to raise Issue 3-A (if Issue 3-A was material) was not attacked in the trial court and we have no authority to determine the sufficiency of the evidence to support the finding made under Issue 3-A. .As a direct consequence, the question, whether it was error, to' condition Issue 4 on Issue 3-A because 3-A was not raised by the proof is not before us. Of the two propositions in denial of plaintiff’s argument that proof of defendant’s having put the grease on the deck made Issue 3-A immaterial, which has not yet been discussed, I shall first demonstrate -proposition 3. The nature of defendant’s duty to- plaintiff, in its general aspect, has been sufficiently indicated by the quotation made from Missouri, K & T Ry. Co. v. Jones. That is (to paraphrase this quotation) for the presence of the grease upon the deck where plaintiff was at work to have implied negligence by defendant, the defendant must either have put the grease where it was; or else must have known that the grea-se was there before plaintiff fell, in time to have removed it before plaintiff fell or else the grease must have been there so long as to raise the inference that defendant’s failure to learn of the presence of the grease before plaintiff fell, in time to have removed it before plaintiff fell, was due to a want of proper care. This statement actually expresses two separate and distinct duties on defendant’s part, one negative and one affirmative, namely, a duty not to create a condition dangerous to plaintiff, which is negative, and a duty to abate a condition dangerous to plaintiff, which is affirmative. It is apparent from this statement of defendant’s duties to plaintiff that knowledge (actual or constructive) of the dangerous condition in time to have abated it before plaintiff was injured thereby is not a material factor in determining whether the negative duty not to create a dangerous condition has been breached. If this duty exists, that is so because the circumstances attending the defendant’s act in creating the condition put the defendant on notice, then and there, that harm to plaintiff might result. Thus, in Galveston H. & S. A. Ry. Co., v. Kieff, 94 Tex. 334, at page 338, 60 S.W. 543, 544, it is said: “The negligence which results in an actionable wrong is the failure to discharge a duty owed to the party injured. It is a duty incumbent upon all men to use ordinary care so to act as not to injure others. The duty arises when there is reason to anticipate danger.” And see: Prosser on Torts, p. 220; Palsgraf v. Long Island Ry. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. The matter of time is of no consequence because defendant simply has the necessary information in advance. All this is true where it was a violation of duty to plaintiff to create the condition in the first place; and the situation in Adams v. American President Lines, supra, which plaintiff has cited, is of this .sort. And it is also true where the defendant knowingly creates the condition to effect a lawful object, under attending circumstances giving notice that unless the condition is abated when the object is accomplished, harm may come to the plaintiff. Such a case is that of the shopowner who puts a cleaning agent on the floor of his shop. See: The Fair, Inc., v. Preisach, Tex.Civ.App., 77 S.W.2d 725. This would not be true, however, if defendant accidentally caused the grease to be on the deck. However, our statement of defendant’s duty to plaintiff shows that knowledge, either actual or constructive, of the dangerous condition in time to abate it before it injures plaintiff is essential to establish a violation of defendant’s affirmative duty to abate the condition, 'and in fact, that such knowledge in time must be had before that affirmative duty to abate ever comes into existence. Here the matter of time is of consequence; without the necessary knowledge in time there could be no necessity of acting on it. The question of negligence is not reached until knowledge in time has been established. As a result, in cases in which an affirmative duty to abate has been invoked, the determination of knowledge in time has been thought to justify the submission of separate is,sues to the jury. . See: Echols v. Duke, Tex.Civ.App., 102 S.W.2d 483. And see the following cases, involving the situation of the- occupant of land and his duty to an invitee: The Fair, Inc., v. Preisach, Tex.Civ.App., 77 S.W.2d 725; Graham v. F. W. Woolworth Co., Tex.Civ.App., 277 S.W. 223; Montfort v. West Texas Hotel Co., Tex.Civ.App., 117 S.W.2d 811; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374. And' see, regarding the.occupant’s duty to the invitee: Galveston H. & S. A. Ry. Co. v. Matzdorf, 102 Tex. 42, 112 S.W. 1036, 20 L.R.A.,N.S., 833. It may happen, of course, that the same facts will throw up both duties and as a consequence an element- of one duty may be proved in an unusual way. Thus, if defendant created a • dangerous condition under circumstances putting defendant on notice, or giving defendant actual notice, that the condition is hazardous to plaintiff, the defendant is bound to abate it, and may be held liable for not abating it — instead of being held for creating it; but this coincidence does not change the nature of the defendant’s duties and it does not eliminate any element of said duties. For instance, this coincidence would not make knowledge in time immaterial if plaintiff seeks to hold defendant for not abating a condition which defendant created; the only consequence would be that knowledge in time would be proved in an unusual way. This analysis, I think, is sufficient to prove Part (a) of my proposition and to show that plaintiff’s argument that evidence of defendant’s having put the grease on the deck made Issue 3-A immaterial actually invoked the duty not to create a condition dangerous to plaintiff instead of the duty to abate such a condition. Next to be considered are Parts (b) and (c) of said proposition and it is to be determined which of these two duties were submitted to the jury, 'and in what special Issues. A consideration of the trial court’s charge shows that a breach of defendant’s negative duty not to create a dangerous condition was not submitted to the jury. Whether defendant put the grease on the deck was not, in terms, submitted to the jury, as an independent ground of negligence or otherwise. Instead, the court submitted only the question of whether the affirmative duty to abate had been breached. The charge contains only two sets of negligence issues, Nos. 6 through 9, and Nos. 3 through 5. Numbers 6 through 9 are irrelevant here. Issue 3 is the basic issue in the other set and characterizes the ' entire set; it submits the inquiry, whether defendant allowed a greasy substance to be upon the deck. Allowed to be upon does not mean to create, that is, to put the grease upon the deck. These words clearly express a preliminary inquiry for the establishment of the affirmative duty to abate, that is, to remove the grease, and it is only this duty and the breach of it which would have been involved in Issues 3, 4 and 5 if Issue 3-A had not been submitted. Allow to be upon does not mean to put, although it may be a consequence of having put. These comments dispose of Parts (b) and (c) of the proposition under discussion and next to be considered are Parts (d) and (e). It has just been shown that if Issue 3-A had not been submitted, the only Issues to which the proof mentioned by plaintiff could