Southern Pac. Co. v. Walters, (No. 2621.)
| Decision Date | 28 April 1920 |
| Docket Number | (No. 2621.) |
| Citation | 221 S.W. 264 |
| Parties | SOUTHERN PAC. CO. v. WALTERS. |
| Court | Texas Supreme Court |
Action by Mrs. Mary Walters, administratrix, against the Southern Pacific Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (157 S. W. 753), and defendant brings error. Affirmed.
Wm. F. Herrin, of San Francisco, Cal., and Beall & Kemp, of El Paso, for plaintiff in error.
H. M. Wurzbach, of Seguin, and Wallace & Gardner, of El Paso, for defendant in error.
The plaintiff in error as the appellant in the Court of Civil Appeals presented an assignment of error—the fifth in the brief, on the trial court's refusal to give a special charge instructing a verdict in its behalf. While the error was complained of in the trial court in a motion for a new trial, the assignment contained no reference to the motion. For that reason the Court of Civil Appeals refused to consider the assignment, or any of the other assignments which also omitted any reference to the motion.
The case was tried and disposed of in the trial court when under the statute law the ruling of the court in the giving, refusing, or qualifying of instructions to the jury was to be regarded as excepted to in all cases, that is, before the passage of the Act of 1913 requiring that such rulings be specifically excepted to. Therefore, for the reasons stated in Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4, and Railway Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471, it was not necessary that the trial court's refusal of the special charge be complained of in the motion for a new trial. Since it was not necessary to make such complaint in the motion, it was not essential that the assignment of error in relation to the special charge refer to the motion.
While the assignment was entitled to consideration, the case should not be remanded for that purpose if the assignment is clearly without merit, and the question is one not exclusively within the jurisdiction of the Court of Civil Appeals. The special charge, the refusal of which is the subject of the assignment, asked that a verdict be directed because there was no evidence of negligence on the part of the defendant—the suit being one for damages for the death of the husband of the plaintiff from an injury claimed to have been caused by a sudden and negligent jerking of the train in which he was riding. The effect...
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...111 Tex. 419, 232 S. W. 298, 239 S. W. 185; Harris County v. Charlton, 112 Tex. 19, 243 S. W. 460, 245 S. W. 644; Southern Pacific Co. v. Walters, 110 Tex. 496, 221 S. W. 264. But as to questions of fact, not so disposed of, the case must be remanded to the Court of Civil Appeals for consid......
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