Opinion
June 14, 1911. Rehearing Denied October 18, 1911.
Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
Action by E. F. Howard against the Gulf, Colorado Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded. See, also, 135 S.W. 707.
Nugent McMahon, for appellant.
Terry, Cavin Mills, F. J. C. T. Duff, and Llewellyn Foster, for appellee.
This is a personal injury suit, the trial of which resulted in a verdict and judgment for the defendant, and the plaintiff has appealed. At the request of appellee the trial court gave five special instructions relating to the question of contributory negligence, and when the case was submitted in this court appellee's counsel admitted in oral argument that appellant's assignment complaining that the giving of these instructions unduly and improperly emphasized that phase of the case was well taken. It was practically conceded that the case should be reversed on account of the error referred to, if this court did not sustain appellee's contention that the undisputed testimony showed that appellant had no case, and the trial court should have instructed a verdict for appellee. We have considered the statement of facts, and have reached the conclusion that the evidence was such as entitled appellant to have his case properly submitted to the jury. We have neither the time nor inclination to quote or refer to the evidence which we think tends to support the cause of action set out in appellant's petition. On the other questions presented we rule against appellant, and reverse the case for the error noted. Reversed and remanded.