Jenkins v. St. Louis Southwestern Railway Co.

102 S.W. 937, 46 Tex. Civ. App. 565, 1907 Tex. App. LEXIS 151

• Court: Court of Appeals of Texas
• Decided: May 29, 1907
• Status: Published

Opinion

KEY, Associate Justice.

W. C. Jenkins brought this suit against the St. Louis Southwestern Railway Co. of Texas to recover damages to his crops caused by an overflow. He alleged in his petition that in constructing its roadbed across a creek the Railway Company failed to leave a sufficient opening for the water, and that it negligently and carelessly constructed and maintained its railroad embankment and trestle in such manner as to obstruct the natural flow of the water that ran in the creek, and the surface water that fell on a large area of land west, north and east from the plaintiff’s premises.

The defendant, in addition to its general denial, interposed pleas setting up separate and distinct defenses, one of which was that the overflow in question was caused by an unprecedented fall of rain.

There was a jury trial, resulting in a verdict and judgment for the defendant, and the plaintiff has brought the case up on writ of error.

There are but three assignments of error, and they each complain of the court’s charge to the jury. There is no statement of facts in the transcript, and for that reason the assignments referred to are overruled. If it be conceded that the assignments point out errors in the charge, we are unable to say, in the absence of a statement of facts, that such errors are now material. The plaintiff may have failed entirely to prove his case, or the defendant may have established one or more of its defenses by undisputed and overwhelming testimony; in either of which events the alleged errors in the charge would be immaterial. (Armstrong v. Lipscomb, 11 Texas, 649; Cannovan v. Thompson, 12 Texas, 247; Raleigh v. Cook, 60 Texas, 438.)

Ho reversible error has been pointed out and the judgment is affirmed.

Affirmed.