Marshall & E. T. Ry. Co. v. Waldrop

Court of Appeals of Texas

Marshall & E. T. Ry. Co. v. Waldrop

153 S.W. 410, 1913 Tex. App. LEXIS 103

DecidedJanuary 23, 1913

StatusPublished

This text of 153 S.W. 410 (Marshall & E. T. Ry. Co. v. Waldrop) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marshall & E. T. Ry. Co. v. Waldrop, 153 S.W. 410, 1913 Tex. App. LEXIS 103 (Tex. Ct. App. 1913).

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Opinion

LEVY, J.

(after stating the facts as above). (1] The second clause of the eleventh paragraph of the court’s charge is objected to as erroneous, upon the ground that it did not make a recovery, occasioned by the fright of the team while in the act of crossing the railroad, dependent upon the exercise of ordinary care by appellee. The be-ginhing portion of the paragraph required the jury to find, before authorizing a verdict at all for the plaintiff, that plaintiff was exercising ordinary care, both in approaching and going upon the crossing with the wagon. This portion of the paragraph had relation to both clauses thereof, and would so reasonably have been understood by the jury. The objection would not, we think, afford a ground for reversal. The same clause is further objected to as submitting an issue not made by any evidence. The testimony of the witness Marshall warrants the issue. The ground of negligence submitted was pleaded. The second assignment is overruled.

[2] The third assignment is overruled, as being without injury, for the reason that the court gave a special charge, at the instance of appellant; stating correctly the law applicable to and covering the same point called for in the special charge on which his assignment predicates error in refusing.

The special charge refused and made the basis of error in the fourth assignment was practically given in the court’s main charge, as noted by the court in the refusal to further give the special charge, and the assignment is overruled.

All the other assignments have been carefully considered and discussed, and should be, we think, overruled.

The judgment is affirmed.

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LEVY, J.

(after stating the facts as above). (1] The second clause of the eleventh paragraph of the court’s charge is objected to as erroneous, upon the ground that it did not make a recovery, occasioned by the fright of the team while in the act of crossing the railroad, dependent upon the exercise of ordinary care by appellee. The be-ginhing portion of the paragraph required the jury to find, before authorizing a verdict at all for the plaintiff, that plaintiff was exercising ordinary care, both in approaching and going upon the crossing with the wagon. This portion of the paragraph had relation to both clauses thereof, and would so reasonably have been understood by the jury. The objection would not, we think, afford a ground for reversal. The same clause is further objected to as submitting an issue not made by any evidence. The testimony of the witness Marshall warrants the issue. The ground of negligence submitted was pleaded. The second assignment is overruled.

[2] The third assignment is overruled, as being without injury, for the reason that the court gave a special charge, at the instance of appellant; stating correctly the law applicable to and covering the same point called for in the special charge on which his assignment predicates error in refusing.

The special charge refused and made the basis of error in the fourth assignment was practically given in the court’s main charge, as noted by the court in the refusal to further give the special charge, and the assignment is overruled.

All the other assignments have been carefully considered and discussed, and should be, we think, overruled.

The judgment is affirmed.

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153 S.W. 410, 1913 Tex. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-e-t-ry-co-v-waldrop-texapp-1913.