*1 Tex.) AMTONTO & A. BY. SAN P. CO. v. TUCKER 175 along Appeal route; and, further, Court, its the because from District Bfilam Coun- fully by ty; presented Scott, Judge. law J. . of the was the C. case charge. by against main Action E. J. Tucker the San Believing Railway Company. that the is sufficient to & evidence Antonio Aransas Pass support jury, judgment ap- plaintiff, the and that the verdict of the From a for defendant judgment excessive, peals. same is in no sense the Affirmed. the of lower is court affirmed. Boyle, Antonio, R. J. of San and Hender- Affirmed. son, Gillis, Cameron, appel- Kidd & of for Routledge, lant. J. R. Norton and James ‘ Antonio, Morrison, both of San and W. A. appellee. Cameron, & SAN ANTONIO A. RY. TUCKER. of P. CO. for v. (Court Appeals of Civil Austin. of Texas. 26, March 1913. On Motion for Re RICE, brought J. This suit was to recov- hearing, May 14, 1913.) damages personal injuries er alleged for to by appellee have been sustained Rehearing. in while On Motion for employ appellant, resulting the of from a Appeal (§ 743*) Assignments 1. and Eeeoe — op Repekence pob appellant’s freight train, collision between Eeeoe — to New BIotion Tbial. upon engaged a hand and car which he was objections charges given Since to re- and work, charging at negligence various acts of up fused need not be set in. the for motion brought which about trial, the collision. assignments alleging Defend- new of error error charges ant, interposing general the in need not refer the motion to after a demurrer required by (142 for new trial as rule 25 S. W. general answered, denial, substance, and a in xii). plaintiff’s injuries that the were result the of Appeal eases, and [Ed. Note.—For other see rash, negligent, his own duct, and reckless con- 3011; Dig. Error, 743.*] Dig. 2999, § Dec. §§ Cent. ample and he had that time to have injuries himself, avoided the to if had he Appeal (§ 882*) Estoppel to 2. and Eeeoe — obeyed the Allege of his orders foreman to leave Eeeoe. charge contributory negligence Where a on go place safety. the hand car and to a of plea language in is the exact of defendant’s jury resulting trial, was a There in a ver- may contributory negligence, of complain. not defendant judgment appellee, and dict this for from which prosecuted. appeal is There are seven cases, Appeal Note.—For and [Ed. other see 3591-3610; Dig. Error, Dig. assignments error, except which, of §§ § Cent. Dec. all of 882;* Pleading, Dig. § 1145%.] Cent. one, complain paragraphs of certain of the charge, Appeal give and court’s the refusal (§ to cer- 216*) Objections 3. and Eeeoe — —Instbuctions—Requests. special charges requested by appellant. tain charge goes, If a is correct as far as it assignments None said of refer to the motion may 'appellant complain not not where he does trial, part complain- for new or that thereof request further a instruction. ing therein, of the matters involved re- as Appeal cases, [Ed. see and Note.—For other Trial, Dig. Error, 627-641.] Dig. 216;* by quired government §§ Cent. § Dec. rule 25 for the of this adopted by Supreme January court the Court op 24, This 1912. omission has (§ 194*) Instbuctions—Weight been called to Tbial 4. — by appellee, Evidence. our attention who insists that by charge A that the issues raised these assignments by the should not be considered contributory charges was negligence constituted us, and the case affirmed without reference weight on of the evidence. the objection merits; being his a cases, Trial, to its noncompliance on based [Ed. other see Cent. Note.—For 456-466; 413, 436, Dig. 439-441, 446-154, §§ with rules 24 and 25 for the Dig. Dig. 194;* Negligence, § Dee. 360.] Cent. § government (142 xii). of this court S. W. day The on case was tried the 24th of Appeal 1068*) (§ and Eeeoe 5. —Haemless April, 1912; amended motion for the new Eeeoe —Instbuctions. assignments filed, trial the of and error were specific negligence Where several acts of May respectively, on upon recovery, the 27th and of the are relied for and the evidence upon any finding is sufficient two to warrant a them, July, adopted 26th These of rules were 1912. or more of it is harmless error the for January, 1912, on the 24th of and were of- directing court to refuse an instruction ing a find- ficially published vii, in 142 S. W. which was alone, favor of defendant on one where in pro- plain- general and went into hands of issued the the there is verdict in behalf a of tiff. April fession about the middle of of said cases, Appeal [Ed. other see and Note.—For Cent. year. Error, Dig. 4225-4228, Dig. 4230; §§ Dee. Patton, In the case of Davidson v. 149 S. 1068;* Trial, Dig. § § 525.] Cent. Ry. 757,W. and St. Louis S. W. Co. v. Led — (§ 219*) Evidence 6. Com- —Admissions better, 646, as 153 W. well the case of S. as — PEOMISE SETTLEMENT ACCIDENT AND IN- Tinsley Bottom, by this court v. decided SUEANCE. injuries servant, yet published, In 19th, an action for to a de- Blarch not it was held may settlement, fendant not a show the result comply rules, that a failure to with said by plaintiff compromise, of a with an insur- objection by opposite side, is made the where company policy. on an accident ance required assignments court to hold said the cases, Evidence, [Ed. Note.—For other see 761; disregard same; Dig. except 760, Dig. as in waived and §§ Cent. § 219.*] Dec. topic Dig. Dig. Key-No. & Rep’r *For other cases see same and section in &Am. Series- Indexes NUMBER Dec. *2 (Tex. REPORTER 157 SOUTHWESTERN 176 .like pared not come to the rules pellant carefully the last case referred ment was that posing counsel) regarding in the instant case the counsel this question 10 of the plaintiff’-s failure to This for be the court below have be with rules foreman this are not also, appellant be duct reckless. These graphs, of defendant’s take cede from our tion for a new appellant by 187, not refer trial out reference that erence to this case. guage negligence; that the constituted fundamental error. lant desired accordance since ninth charge en and refused M., Being they Affirmed. However, Believing Under [1] This case was [2, observed, regarded contributory negligence, necessary appellant K. ruling predicated day objection; besides, as far as has construed the the in so appellant’s 3] up Sargent wherein ruling as to warrant requested were (especially in that so soon after which They correct and at & to in this By in and discuss case was tried court erred and -examined same and involved is decided On Motion the to T. insists the the the failing court’s made. its first considered, unquestionably effect, that it was with tenth as has were likewise that and and, certainly, Ry. in its brief. an additional time authority et leave the in their motion hearing that assignments, we conclude that the error was as far as the to the jury, former question, holding respect. waived, trial. affirmed, it. should be set al. v. brief is sufficient assignments the when insisted been that that the knowledge Co. part by and charges its main instructed the assignments paragraphs Chief objections urged by the heretofore the and for rules of the court should in this the in obey v. fully did not conform to merits, a Barnes. refusing that holding, own line of defense. of the challenged to, plea recent rule with because it this, and the of that noneomplianee giving promulgation hand car would not Beaseley, belief and the Rehearing. charge, upon they went, and it assignments should second questions presented Justice court, court where the are the paragraphs in charge discussed the it of ground of unless that motion for new counsel Nos. 1 and to on the complained of. 159 the up in for that disagree affirmed the was rash and and is cannot order of the not counsel. of -its of error upon by op- erred in the case, we re- judgment wherein contributory charges giv law of the assignments that appeal by so ordered. they went, Brown, in S. W. said 155 exact lan rehearing, jury We charge it should they appeared will now if his open for dis- the counsel for ground assign- of it was and a which appel there- S. 9 insist para with main have with said ments of that 366, pre- con See, had and mo ref the did the ap- W. in to of 2, n aretold that the issues raised es constituted Where several basis upon an relied rant it special charges non submitted to the as, which reason the give worth, general the sion. settlement indemnifying ruled. from the ment was an of ty Company. Anderson, Fuller. fendant fendant dence cluded, case, trial breach lumber than that claim, Carthage, but founded plaintiff’s viding a Counterclaim, Set-Off action for as a set-off cannot (Court suit be uidated [Ed. Note.—For Appeal Motion overruled. claim, Action [4, H. N. Nelson Finding ^[6] is defendant accident instruction the issue of that injuries Under 5] The court a presented by harmless court, the appellant’s and the FULLER At the time of his of its that if the Upon against upon and therefore finding of Civil set off for the of another contract for founded on of cannot appeals. Affirmed. verdict defendant on a cause From a and Counterclaim error, weight from cause by bill Judge. no error made for Damages. Rev. St. Carthage, the unliquidated by plaintiff with said the policy damages arising for inflicted objection third, contributory on one Dec. him for time Pruitt & of upon him over evidence Appeals Appellant any May 15, special error reason that price appellant. Panola directing Nos. motion for for set off of v. PRUITT and Frank upon in behalf of recovery, in of contributory negligence judgment plaintiff’s jury exception special other may plead in Dig. court- action, properly fourth, debt a certain any in evidence the reason that 1895, arts. them should compromise 4, of could not be alone, of for the for upon which the acts this evidence was for 5, County Court; damages of Texas. cases, see § unliquidated two 1913.) Biggs action lumber, is sufficient to due his properly injury, the Continental Casual 35.*] a and appellees. negligence; instruction No. offered a proceedings a as in the rehearing cause it him this of and fifth for lost Brooke & where there that such settle suit Lawson, finding or more to. refused to out objection. finding defendant, in an & BIGGS. any in (§ him, demand by court clearly appears 6, negligence arising out of against plaintiff; 754, 755, .plaintiffs, de- 35*) Unliq- that the the deliver by in was cannot of plaintiff these counterclaim of forming of Set-Off have to put Texarkana. refused to and plaintiff’s reason to company, defendant plaintiff’s in action damages, they — of thereon. brought. both of is over- show present the assign in evi where refuse charg of W. Wool- if the them, favor plead other S. J. colli war been jury is a give pro- had and are are for the the de- vel ex be R. of 7. a Rep’r Dig. Key-No. topic Dig. Indexes Series & see same and in &Am. other cases section NUMBER *For Dec.