International & Great Northern Railroad v. Newburn , 94 Tex. 310 ( 1901 )

WILLIAMS, Associate Justice.

This writ of error was granted because we thought there was error in the judgment of the Court of Civil Appeals in affirming the refusal of the trial court to grant a continuance of the case. The plaintiff claimed that his injuries were received while he and his fellow members of a section gang were attempting to lift from the track, out of the way of a rapidly approaching train, a hand car of which they had charge, through the act of one of his companions, influenced by fright caused by the negligence of the trainmen in approaching so close without warning, in suddenly releasing his hold upon the hand car and throwing its weight upon plaintiff. The petition showed that some of the men were lifting at the sides of the hand car, and others, ■ including plaintiff, were, at the ends; and just before the trial, plaintiff filed an amended petition in which it was alleged that the man who let go was at one of the sides. Thereupon, defendant asked for a continuance on the ground of surprise, stating that all of the previous petitions had averred that the man who had released his hold was at the end at which plaintiff was stationed, and that defendant had prepared to meet such allegation, and that the change made necessary the presence and testimony of one of the men who had helped at the side where the amended allegations located the one who let go.

We were inclined to differ with the Court of Civil Appeals as to the correctness of the refusal of the continuance; but an examination of the record discloses that the pleadings filed by plaintiff prior to the last amendment were not sent up. In passing upon the application for continuance, it was proper for the trial court to examine such pleadings, and it may be that the allegations in them were such as to charge defendant with notice of the fact last alleged, and to show there was no legal ground for surprise and make it proper to overrule the application. We can not say, in the absence of these pleadings, that this was not the case, and therefore can not hold the ruling to have been erroneous, as every presumption consistent with the record is to be indulged in favor of its correctness. All other assignments of error have been examined and no reversible error found.

Affirmed,.