International & G. N. Ry. Co. v. Owens , 1914 Tex. App. LEXIS 684 ( 1914 )

KEY, C. J.

In this case the plaintiff recovered a verdict and judgment against the defendant for the value of a mule which was killed on defendant’s track in the town of Gause by a passing train on defendant’s road, and the latter has appealed.

[1-3] The first assignment charges that the trial court committed error in overruling the defendant’s general demurrer to the plaintiff’s petition. The statement in appellant’s brief in support of that assignment does not purport to contain even the substance of all that was alleged in the petition, but, in addition to stating that certain facts were alleged, states that certain facts were proved by the evidence. Of course, the testimony cannot be considered in determining the sufficiency of a pleading. Besides, the record does not show that the court made any ruling upon the general demurrer, or that it was requested so to do, and therefore that demurrer must be considered as waived.

The second and fourth assignments object to certain paragraphs of the court’s charge, which objections we hold are without merit, and the assignments are overruled.

[4] The third, fifth, and sixth assignments charge that error was committed by the refusal of certain requested instructions. The record shows that appellant requested only one instruction that was refused, and no error is assigned upon the action of the court in refusing that instruction. Hence we hold that the record does not sustain the assignments, and for that reason they are overruled.

No reason for doing otherwise has been made to appear, and therefore the judgment is affirmed.

Affirmed.