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

• Decision Date: 19 June 1893
• Citation: 29 S.W. 920
• Court: Texas Court of Appeals
• Parties: FT. WORTH & R. G. RY. CO. v. ANDREWS.

29 S.W. 920

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

Court of Civil Appeals of Texas.

June 19, 1893.

Appeal from Tarrant county court; W. D. Harris, Judge.

Action by T. C. Andrews against the Ft. Worth & Rio Grande Railway Company for damages to land from the operation of defendant's road. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Newton H. Lassiter, for appellant. Humphreys & McLean, for appellee.

HEAD, J.

The pleading and evidence in this case (except as to the amount of the damage) are substantially the same as in the case of Railway Co. v. Downie, 82 Tex. 383, 17 S. W. 620, and in the officially unreported cases of Railway Co. v. Daniels (Tex. Civ. App.) 29 S. W. 695, and Railway Co. v. Garvin, Id. 794, affirmed by us at our last term, in both of which writs of error have been refused. The legal questions presented in the brief of appellant have also been passed upon in the cases above referred to, except, perhaps, some of those arising upon the exceptions taken to the admission of and refusal to exclude evidence. These we have carefully examined, and have concluded that no sufficient reason is shown in any of them to require a reversal of the judgment. Both the motions to exclude were made after all of appellee's witnesses had been examined, and no reason is given why the objections were not interposed when the evidence was offered in the first instance. Railway Co. v. Lamothe, 76 Tex. 223, 224, 13 S. W. 194. Also, neither of the motions or bills of exception designates with sufficient particularity the evidence, the exclusion of which was desired. A motion of this kind should do more than ask the exclusion of all evidence bearing upon a particular issue, thereby leaving it for the jury, instead of the court, to decide as to the questions and answers that remained for their consideration. We do not by this, however, intimate that the objections would have been well taken if interposed at the proper time, but, on the contrary, incline to the opposite opinion, and that the objectionable matters were sufficiently eliminated by the action of appellee in abandoning in open court that part of his claim before entering upon the trial, and by the failure of the trial judge to submit the issue to the jury. The requested instruction, the refusal of which is complained of, was clearly embraced in the main charge given by the court.

We find no objection to the action of the court in giving the jury two ways for estimating the...