Missouri, K. & T. Ry. Co. v. Masqueda , 1916 Tex. App. LEXIS 1026 ( 1916 )

On Motion for Rehearing.

[4] We have carefully considered the appellee’s motion for a rehearing, and conclude that it presents no good reason for a change of the views expressed in our original opinion. That opinion is not, we believe, in conflict with cases cited by appellee. The contention to the effect that the appellant having asked that the question of the negligence of its foreman be submitted to the jury and having invited an answer upon the issue as to the cause of appellee’s injury, it cannot be heard to say there was no evidence to support those issues, is not sound. The appellant not only requested the trial court to direct the jury to return a- verdict in its favor on the ground that there was no evidence showing negligence on its part proximately causing appellee’s injury, but in asking the submission of issues used the following language:

“The court having refused defendant’s special charge No. 1 (which was the peremptory instruction asked), the defendant, without admitting that there are any issues of fact that should be submitted, requests that if issues of negligence be submitted they be submitted in the following form.”

Then follow the issues requested to be submitted. Having requested a peremptory instruction and having qualified its requests for the submission of the issues presented in the manner stated, appellant did not preclude or estop itself from asserting and insisting on appeal to this court that there was no evidence raising such issues. The rule that where a party unqualifiedly requests the submission of an issue it will not be heard to say on appeal that the issue was not raised by the evidence, is not applicable in such a case.

The motion for rehearing is overruled.