June 11, 1914.
Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
Action by John Brown against the Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
F. H. Prendergast, of Marshall, for appellant. M. B. Parchman and M. P. McGee, both of Marshall, for appellee.
Having granted the motion of appellant for a rehearing and set aside the submission taken of the cause, and, after permitting it to file briefs, having submitted the cause again on its and appellee's briefs, the appeal will now be disposed of with reference to the assignments of error.
In nine of its assignments appellant complains of the action of the court in giving and refusing instructions to the jury. It does not appear from anything we find in the record that the objections made to the instructions given were presented to the court before he read his charge to the jury, as required by article 1971, Vernon's Statutes; nor are the rulings of the court in refusing special charges requested by appellant presented to this court for review by bills of exception, as required by article 2061, Vernon's Statutes. These assignments, therefore, cannot be considered. Railway Co. v. Wadsack, 166 S.W. 42; Johnson v. Hoover, 165 S.W. 900; Roberds v. Laney, 165 S.W. 114; Railway Co. v. Galloway, 165 S.W. 546; Saunders v. Thut, 165 S.W. 553.
The verdict of the jury is attacked as contrary to the evidence, in that, as appellant insists is true, it appeared from uncontradicted testimony that the oil it furnished was of the kind commonly used in torches, and did not appear that there was a better grade of oil which it could have furnished for use in the torches. If it should be conceded that appellant's contention in this respect should be sustained, it would not be a reason why the judgment should be reversed. For appellee alleged that appellant was guilty of negligence which proximately caused the explosion, in that it failed to furnish "electric or other safe and sufficient lights which would not admit of the flames thereof being imparted to said oil and gas given off by said oil," and proved facts authorizing a finding by the jury to that effect. For aught we know to the contrary, the finding of liability on the part of appellant was based on negligence in that respect. Railway Co. v. Woods, 149 S.W. 372; Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S.W. 170.
It is further insisted that the verdict is contrary to the evidence, in that it appeared that the explosion must have been caused by the manner in which appellee "held his torch while Pierce was filling his torch with oil, and by the proximity in which Brown held his burning torch to the one being filled." The testimony with reference to this phase of the case was that the oil can was on an iron block about 1 1/2 feet high. Pierce was filling his torch by so tilting over the can as to cause the oil to run from it into the torch held under it, while appellee was standing 3 1/2 or 4 feet from him, holding his (appellee's) torch up, over Pierce's head, so the latter could see how to pour the oil. We do not think we would be warranted in saying from this testimony that it appeared, as a matter of law, that appellee was guilty of negligence in the manner in which he held his torch.
The judgment is affirmed.