Opinion
January 28, 1914. Rehearing Denied March 18, 1914.
Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
Action by Charles Graves and others against the San Antonio Aransas Pass Railway Company. From a judgment for the defendant, plaintiffs appeal. Affirmed.
H. C. Lindsey, of Waco, for appellants. Neff Taylor, of Waco, for appellee.
Appellants brought this suit against appellee to recover damages on account of the death of W. B. Graves, a son of appellant Charles Graves. They alleged that W. B. Graves was an employe of appellee, and, while engaged in cleaning an engine, the boiler blew up and injured him, causing his death; that such injury was caused by the negligence of appellee in putting the deceased to work on an engine that was old, rusty, and unsafe. The allegations that the engine was old and rusty are immaterial, unless it be shown that by reason of such age and rust the boiler was in a defective or unsafe condition. There was no evidence in the case that said engine or boiler was unsafe, and no evidence as to the cause of explosion. The evidence was sufficient to raise the issue as to the engine's being old, but not that it or the boiler was unsafe.
The trial court instructed a verdict for the defendant. In this there was no error. Appellants have assigned error on the refusal of the court to allow Charles Graves to testify as to what the deceased told him shortly after receiving the injury. The only thing appearing in the record with reference to this matter is that the statement of facts set out what Charles Graves testified to on voir dire in the absence of the Jury; but there is nothing to show that appellants offered this testimony to the jury, that the court refused to allow it to go to the jury, or, if so, that appellants excepted to the ruling of the court, for which reason this assignment must be overruled.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.