107 S.W. 49 | Tex. | 1908
When we granted the writ of error in this case we were of the opinion that the trial court erred in charging the jury in effect, that the conductor of the train might waive the condition in the contract of transportation which required the plaintiff to ride in the caboose of the train. But an inspection of the record discloses that while the written contract in question was offered in evidence it is neither set out in haec verba, nor in substance and effect in the statement of facts; nor is any reference made therein to any other part of the record, so that the court can know what the contract was. Sevier, the agent with whom the contract was made, testified as appears from the statement of facts: "Said contract was written on a printed form, the original of which is attached to my *330 deposition, also a true copy of same, as original is defaced. The contract attached to my deposition contains all the provisions and agreement contained in the contract." The following agreement also appears in the statement of facts: "It was next agreed by attorneys that such parts of the contract referred to should be considered in evidence and referred to by either side in the argument, without being read at this time." We infer that the contract was considered as being in evidence and the exhibits to the deposition of Sevier ought to have been copied in the statement of facts, but this was not done. There are some vague remarks about the contract in the testimony of the plaintiff, but nothing to show with any certainty its terms. If it was not burdened with limitations and conditions, it was a very unusual one of its class.
The terms of the contract not appearing in the statement of facts, how can we say, that the court erred in its charge in reference to the authority of the conductor to waive the condition that plaintiff should ride only in the caboose? There may have been something in its stipulations which expressly or impliedly conferred upon the conductor that authority. Since the written contract does not appear in the statement of facts, the question upon which we granted the writ of error is not raised and we therefore overrule the assignment which presents it.
The other assignments of error in the application have been considered and we are of the opinion that they point out no error. The judgment of the District Court and that of the Court of Civil Appeals are affirmed.
Affirmed.