Central Texas & Northwestern Railway Co. v. Gibson ( 1905 )

A carriage in which defendant in error was riding with her father and three other ladies along a public street of Waxahachie, was struck at a crossing upon plaintiff in error's track by one of its cars which was kicked by its servants across the street with no engine attached and without any signals of bell or whistle, and defendant in error received the injuries to recover for which this suit was brought.

Many grounds for the reversal of the judgment which she recovered were urged in the Court of Civil Appeals and are presented in the application for writ of error. We were of the opinion in granting the application that all of them were properly disposed of by the opinion of the Court of Civil Appeals, except those in which the eleventh paragraph of the charge to the jury was attacked. We discovered what we thought to be errors in that part of the charge and therefore granted the writ; but on further examination of the briefs in the Court of Civil Appeals and the application, we find that none of the propositions in either are addressed to the matter which we regarded as erroneous. The whole of the eleventh paragraph is assigned as error, but it is lengthy and embraces a number of distinct rules, so that the mere assignment does not point out the particular in which it is claimed to be wrong. Propositions were therefore essential, under the rules, to bring to the attention of the court, the particular complaints made of it, and those inserted in the briefs did not point out to the Court of Civil Appeals the view of the charge in which we were inclined to think it erroneous; and, in this, the application follows the briefs. It would be improper for this court to decide the case upon points not properly raised. There was no error in the charge in the particulars complained of and we shall not undertake to determine whether or not, in others, it was erroneous. We may say, however, that we should hesitate to hold, under the facts of this case, that the judgment should be reversed, even if it should be found that this part of the charge was erroneous.

Affirmed.