74 S.W. 803 (Tex.Civ.App. 1903), Gulf, C. & S.F. Ry. Co. v. Matthews

• Citation: 32 Tex.Civ.App. 137,74 S.W. 803
• Date: 20 May 1903
• Docket Number: .
• Parties: GULF, C. & S. F. RY. CO. v. MATTHEWS ET AL.
• Court: Texas Court of Appeals

Page 803

74 S.W. 803 (Tex.Civ.App. 1903)

32 Tex.Civ.App. 137

GULF, C. & S. F. RY. CO.

v.

MATTHEWS ET AL.

Court of Civil Appeals of Texas

May 20, 1903

On motion to reform judgment. Motion overruled.

For former opinion, see 73 S.W. 413.

NEILL, J.

[32 Tex.Civ.App. 145] By this motion we are asked to render judgment in favor of plaintiff in error, instead of remanding the cause to the district court for another trial. On the theory upon which the case was tried in the court below, we held that deceased was guilty of contributory negligence as a matter of law in lying upon plaintiff in error's railroad track when he was struck and killed by its engine. Under this holding, if there were

Page 804

no other theory arising from the pleadings and evidence upon which appellant could be held liable for the damages for Matthews' death, it would have been our duty to have reversed the judgment of the court below, and rendered judgment here for plaintiff in error, notwithstanding the fact that in its brief we were not asked to render judgment in its favor, but simply to reverse the judgment appealed from and remand the cause for another trial. But from a careful consideration of defendant in error's pleadings, and the evidence in the case, we concluded that another theory might probably be deduced upon which plaintiff in error might be held liable, and for that reason, after reversing the judgment appealed from, we remanded the cause for another trial, instead of rendering judgment in favor of plaintiff in error. In doing so we believe we made the proper disposition of the cause. Therefore the motion is overruled.