M. K. T. Ry. Co. v. Henserlang , 38 Tex. Civ. App. 524 ( 1905 )

This is a personal injury suit, resulting in a verdict and judgment for the plaintiff for $15,000, and the defendant has appealed.

No complaint is made as to the amount of the verdict, nor could it be successfully urged that it is not supported by testimony. The plaintiff was a brakeman on one of appellant's freight trains, and submitted testimony tending to show that on the occasion in question, while in the discharge of his duties as a brakeman, he was riding on an engine, and that what is called the main-pin of the engine became loose and insecure; that such condition became known to the defendant, or could have been known to it by the exercise of ordinary care; that, while in that condition, the defendant caused the engine to be used to pull a train of cars, and that its use in such manner was negligent, and, while being so used, one of the rods on the side of the engine, which was connected with the loose pin, broke loose, or slipped off at one end, flew around and demolished a portion of the engine and cab, thereby inflicting the injuries complained of, without fault on plaintiff's part. The verdict, finding for the plaintiff on those issues, is supported by testimony.

On the day the case was called for trial the plaintiff filed an amended original petition, and the defendant presented a motion for continuance upon the ground that the amended petition set up new cause of action, which the defendant was not then prepared to go to trial upon. The court overruled the motion, and that ruling is assigned as error. It would extend this opinion beyond reasonable limits to set out the two petitions. Suffice it to say that we have examined both, and have reached the conclusion that the latter merely amplified and rendered more specific the matters complained of in the former. Furthermore, the issues to which the trial was limited by the testimony, and the facilities which the record indicates were available to the defendant to enable it to fully present its defense, lead to the conclusion that no error was committed in refusing to grant the continuance. It was not a statutory application for a continuance, and presented a matter largely within the discretion of the trial court, and it is not made to appear that such discretion was abused. (Fisk v. Miller,13 Tex. 225; Beham v. Ghio, 75 Tex. 89 [75 Tex. 89]; Alamo F. Ins. Co. v. Shacklett, 26 S.W. Rep., 631; Texas C. Ry. Co. v. Williams, 26 S.W. Rep., 856.)

The second, third and fourth assignments are addressed to the action of the court in overruling objections to certain testimony. We think these rulings were correct, and overrule these assignments.

Under the sixth assignment of error, appellant submits a complaint against a special instruction given to the jury. However, the instruction referred to, as set out in appellant's brief, does not appear to be pertinent to the assignment of error. The assignment charges that the court erred "in giving, and not refusing, the special charge asked by the defendant," while the brief shows that the special charge criticized was asked by the plaintiff. We are of opinion that the assignment of error does not complain of the charge referred to in appellant's brief.

Numerous assignments are urged against the court's charge and the refusal of requested instructions. We find no positive error in the general charge of the court, and appellant had the benefit of eleven special instructions given at its request. We believe that the court's charge, so largely supplemented by the requested instructions referred to, presented the case to the jury quite as favorably for the appellant as it was entitled to demand.

No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.

Writ of error refused.