Ft. Worth & R. G. Ry. Co. v. Eddleman

• Decision Date: 31 October 1908
• Parties: FT. WORTH & R. G. RY. CO. v. EDDLEMAN.
• Court: Texas Court of Appeals

114 S.W. 425

FT. WORTH & R. G. RY. CO. v. EDDLEMAN.

Court of Civil Appeals of Texas.

October 31, 1908.

Appeal from District Court, Hood County; W. J. Oxford, Judge.

Action by D. H. Eddleman against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. H. Yoakum, West, Chapman & West, and Theodore Mack, for appellant. John J. Hiner, for appellee.

PRESLER, J.

This suit was instituted by appellee against appellant to recover $5,000 damages for permanent personal injuries alleged to have been sustained by him on account of the negligence of appellant in moving a box car against his wagon and demolishing same, without notice or warning; the said appellee being engaged, at the time, in loading one of appellant's cars with cotton seed from said wagon for shipment, and said car having been placed by appellant on its side track for that purpose and at the usual place for loading cotton seed in cars for shipment. Appellant answered by general denial, also specially pleading contributory negligence on the part of appellee. A trial by jury resulted in a verdict and judgment in favor of appellee in the sum of $1,500, from which judgment appellant appeals and here seeks reversion upon the various assignments hereinafter considered.

Appellant's first assignment of error complains of the action of the court in overruling its second application for a continuance. As shown by the record in this case, said application is clearly insufficient in several material respects as a statutory application: First, it does not state "that the testimony of the absent witness is material"; second, because it does not state that "due diligence has been used" to obtain the testimony of the absent witness; third, because the residence of the witness is not stated in said application, and there is no statement therein of any diligence used to obtain his testimony; fourth, because it is nowhere stated in said application "that the continuance is not sought for delay only, but that justice may be done." Either one of the above defects in said application would in our opinion be fatal to its sufficiency as a statutory application. Patton v. Williams, 35 Tex. Civ. App. 129, 79 S. W. 357; Pac. Express Co. v. Needham, 37 Tex. Civ. App. 129, 83 S. W. 22; Lion Ins. Co. of London v. Wicker (Tex. Civ. App.) 54 S. W. 294; Rev. St. 1895, art. 1278.

Appellant, by its second assignment of error, complains of the action of the court in refusing to give the following special charge: "Defendant asks the court to charge the jury as follows: The burden of proof is on the plaintiff to show the extent of his injuries, and, unless you find from a preponderance of the evidence that plaintiff's injuries are permanent, you will in no event allow any damages for permanent injuries." The court in its general charge instructed the jury as follows: "The burden is on the plaintiff to establish his right to recover by a preponderance of the evidence, and, in case he has failed to do so, your verdict will be for the defendant. You are charged that the burden is on the defendant to establish the defense of contributory negligence as pleaded by it." While we are not...