Walker v. Texas & N. O. R. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Reese
• Citation: Walker v. Texas & N. O. R. Co., 112 S.W. 430, 51 Tex. Civ. App. 391 (Tex. App. 1908)
• Decision Date: 19 June 1908
• Parties: WALKER et al. v. TEXAS & N. O. R. CO.

Page 430

112 S.W. 430

WALKER et al. v. TEXAS & N. O. R. CO.

Court of Civil Appeals of Texas.

June 19, 1908.

Appeal from District Court, Nacogdoches County; Tom C. Davis, Judge.

Action by C. T. Walker and others against the Texas & New Orleans Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Ingraham, Middlebrook & Hodges, for appellants. Baker, Botts, Parker & Garwood and Blount & Garrison, for appellee.

REESE, J.

This is a suit by C. T. Walker, widow of T. L. Walker, suing for herself and their minor children, to recover of the Texas & New Orleans Railroad Company damages in the sum of $25,000, for the death of the said T. L. Walker, which is alleged to have been caused by the negligence of defendant. The court instructed the jury to return a verdict for defendant, and from the resulting judgment for defendant, their motion for a new trial having been overruled, plaintiffs appeal.

Unless there is a proper assignment of error which we can consider, and under which we can declare that this charge was error, we must conclude that the evidence authorized the charge under some one or more of the issues. In such case we would have to hold that, under the pleadings and evidence, no other verdict could have been properly rendered, and that therefore the judgment should not be reversed for errors committed upon the trial. The trial court was not authorized to instruct the jury to return a verdict for the defendant, unless the evidence was of such a character that, as matter of law, no other verdict could be rendered. Until the contrary is shown, we must assume that the state of the evidence authorized the court to instruct a verdict for defendant, and in such case the judgment will not be reversed for errors in procedure.

In addition to the general denial, defendant set up the defenses: That the death of Walker was caused by the negligence of a fellow servant, contributory negligence, assumed risk, and that deceased was, at the time of the accident, in the service of one Maurice, and engaged in the performance of his duties in such employment; that Maurice was engaged in the prosecution of certain work for defendant as an independent contractor, and that the persons engaged with him in the work in which deceased received his injury, and whose negligence is alleged to have caused his death, were likewise employés of Maurice under said independent contract, and that defendant was in no way liable for the acts of said Maurice or his employés. If upon either of these issues the evidence was such as to authorize the charge of the court, the judgment should not be reversed. It is therefore essential that appellants, in order to have this judgment reversed, should show by proper assignment, or assignments of error, that the charge cannot be sustained upon any of the issues presented. Lacking this other errors are mere harmless abstractions.

The fourteenth assignment of error, and the statement thereunder, are as follows:

"The court erred in his charge to the jury in the following words, viz.: `Gentlemen of the jury, you are charged, in this case, to return a verdict for the defendant'—because such charge was unauthorized by the evidence, because it was the province of the jury, and not the court, to determine the question of liability of the defendant, because there was no legal evidence in the case to authorize it, because each and every material allegation in plaintiffs' petition was most strongly proven by the evidence. Because the court erred, taking all the evidence in the case together, it is not such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. And this fourteenth assignment of error is submitted as a proposition.

"Statement. The contract, on close inspection, shows that defendant was not only interested in the result of the work, but the very manner of it, and the material used in the construction of the work, and was done and to be done under the direction of Mr. Lamb, the defendant engineer. Also it shows said engineer shall inspect, examine, and pass upon, approve, accept, or reject the work or material, whose decision will be final upon all matters between Maurice and defendant, thereby showing that defendant and Maurice were equally interested, and were, so to speak, partners. And also the testimony showing that the defendant was the owner of the work controlling it, and had the supervision of it, thereby establishing the relation of master and servant between Maurice and defendant company." If the assignment can be properly presented as a proposition, the statement under it is obviously insufficient. No reference is made to the evidence upon any issue, except that presented by the plea that Maurice is an independent contractor. From all that appears or is suggested the evidence upon each of the other issues may have required the charge that was given. In order to sustain the assignment, we would be compelled, with no assistance from the brief, to go through the entire record, to be able to understand the state of the evidence upon the other issues. An assignment so presented cannot be considered.

The sixteenth assignment of error and accompanying statement are as follows:

"The court erred in its charge to the jury in the following words: `Gentlemen of the jury, you are charged in this case to return a verdict for the defendant'—because, taking all the evidence in the case together, it is not of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. And the sixteenth assignment of error is here submitted as a proposition under the sixteenth assignment of error of appellants.

"Statement. The testimony being conflicting as to every material point, and strongly in support of plaintiff's cause of action upon every question presented by the pleadings, it was error for the court to so invade the province of the jury." The statement is correct as a proposition, but as a statement it is entirely insufficient. It cannot, by any latitude of construction, be considered "a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition," as is required by rule 31 (67 S. W. xvi).

These are the only assignments of error which assail the charge of the court. Appellee makes vigorous objection to their consideration, which must be sustained. In the view we take, there being no assignment of error to the peremptory charge, so presented as to require consideration, other errors would not require a reversal if properly presented. Heirs of Webb v. Kirby Lumber Co. (Tex. Civ. App.) 107 S. W. 581, 20 Tex. Ct Rep. 543. Other assignments will, however, be disposed of.

The first assignment of error assails the ruling of the court in overruling plaintiffs' first special exception to defendant's second amended original answer, setting up certain special exceptions to the petition, and in hearing the said special exceptions, because not filed in due order of pleadings. It is a...