Consolidated Kansas City Smelt. & R. Co. v. Conring
| Decision Date | 20 November 1895 |
| Parties | CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. CONRING et al.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, El Paso county; C. N. Buckler, Judge.
Action by Emma Conring and another against the Consolidated Kansas City Smelting & Refining Company for the death of plaintiffs' son. Judgment was rendered for plaintiffs, and defendant appeals. Affirmed.
Falvey & Davis, for appellant. Millard Patterson and Mayfield, Ball & Burney, for appellees.
This is a suit for damages brought against appellant, alleged to have accrued by reason of the death of Moritz Conring, the son of appellees, caused through the negligence in furnishing a defective elevator which was being operated for appellant by deceased. The allegations in the petition were established by the testimony, and a verdict for $5,700 was returned in favor of appellees. The motion for a new trial made by appellant is as follows: "Now comes the defendant in the above styled and numbered cause, and moves the court to set aside the verdict heretofore rendered in said cause, and grant it a new trial, for the following reasons, to wit: (1) Because the verdict of the jury is against the law; (2) because the verdict of the jury is against the evidence; (3) because the verdict of the jury is excessive under the law and evidence; (4) because the court erred in its charge to the jury, and erred in admitting evidence offered by plaintiff, and objected to by defendant, and in excluding evidence offered by defendant." From this motion have emanated fourteen assignments of errors, all of which attack the sufficiency of the evidence to sustain the verdict. Thirteen of the assignments are based upon the first and second grounds of the motion for a new trial.
It is provided in rule 68 for the government of district and county courts that "grounds of objections couched in general terms, as that the court erred in its charge, in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the jury is contrary to the evidence, and the like, shall not be considered by the court." If the judge of the trial court is forbidden to entertain such motions, it cannot be expected that appellate courts will entertain assignments of error based on the same. It has been the uniform practice from the organization of the state to refuse to pass on the sufficiency of evidence when the question is raised by assignments of error based on the class of motions for new trials like the one in this case. Foster v. Smith, 1 Tex. 70; Tarpley...
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