213 S.W. 602 | Tex. Comm'n App. | 1919
The plaintiff, John Bartek, "brought this suit against the International & ■Great Northern Railway' Company to recover ■damages for personal injuries alleged to have been suffered by reason of the negligence of said company. Plaintiff was a caretaker, riding in a car containing household goods and animals belonging to his father. His injuries were caused by the derailment of a car of the train on which he was riding. The negligence alleged was that the track and roadbed were not properly and adequately ballasted: that the rails were loose and insecurely fastened to the ties; that the ties were old and worn out; and that at the time ■of the wreck the train was being operated at a rate of speed which, by reason of the un'safe condition of the track, was dangerous. The defendant answered by general denial, and further pleaded that the plaintiff was guilty of contributory negligence in riding in the car containing the shipment, instead of in the caboose. The questions presented do not require a further statement of the ease.
A trial before a jury resulted in a verdict and judgment in favor of plaintiff, which, upon appeal to the Third Court of Civil Appeals, was affirmed. 177 S. W. 137.
The principal question presented for review is the action of the trial court in instructing the jury in his main charge as follows:
“The burden of proof is on the defendant to establish, by a preponderance of the evidence, the fact that said wreck was not caused by its failure to exercise the highest degree of care in any of the ways alleged by the plaintiff as the proximate cause of his injuries, if any.”
Article 1971, R. S. 1911, as amended by Acts 1913, c. 59 (Vernon’s -Sayles’ Ann. Civ. St 1914, art. 1971), provides, in substance, that after the evidence has been concluded^ the charge shall be submitted to the respective parties, or their attorneys, for inspection, and a reasonable time given them in which to examine it and present objections thereto, “which objections shall, in every instance, be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.”
Article 1973, Vernon’s Sayles’ Ann. Oiv. St. 1914, provides that either party may present to the judge, in writing, such instructions as he desires to be given to the jury, “provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”
Article 2061 provides:
“The ruling of the court in the giving, refusing or qualification of instructions to the jury shall be regarded as approved unless excepted to as provided'for in the foregoing articles.”
We conclude, under the record as presented, that the Court of Civil Appeals did not err in refusing to consider the assignment of error based on the action of the trial court in giving the erroneous charge.
We are of the opinion that the judgment of the Court of Civil Appeals and that of the trial court should be affirmed.
The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
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