San Antonio & Aransas Pass Railway Co. v. Jones

KEY, Associate Justice. This is a grass-burning suit, resulting in a verdict and judgment for the plaintiff, and the defendant has appealed. The first assignment of error challenges plaintiffs’ right to recover in the capacity in which they sued. This question was not raised in the court below, and therefore it can not be raised in this court. Rev. Stats., art. 1265; Donelson v. De Ganahl, 70 Texas, 620; Grand Lodge v. Stumpf, 58 S. W. Rep., 840, and authorities there cited. If it was the intention of the assignment referred to to charge that error was committed in overruling the defendant’s motion for a new trial, because the evidence failed to show that the plaintiffs had title to the property destroyed or injured by the fire, a sufficient answer is that no such point was made in the motion for new trial. That motion makes no complaint whatever of the verdict of the jury. No error was committed in refusing the special instruction referred to in the second assignment of error. There was no evidence tending to show the rental value of plaintiffs’ land after the burn, nor the rental value of pasture land similar to plaintiffs’ upon which the grass had been burned. And therefore, if for no other reason, it would have been improper for the court to instruct the jury that they might consider such rental value as a circumstance in allowing damages. The special instruction referred to in the third assignment and refused by the court, was covered by the general charge given by the court; and for that reason was properly refused. We hold that the charge given by the court does not assume that combustible matter was allowed to accumulate on the defendant’s right of way, but submits that issue to the jury. Hence the fifth assignment, criticising the charge in that respect, is overruled. No positive error has been pointed out in the charges given by the court. No error was committed in refusing those requested by the defendant; and if any *320 theory of the ease relied upon by the latter was not submitted to the jury, the court’s' attention should have been called thereto, and the request made for a charge thereon; and therefore the sixth assignment is overruled. No error has been shown, and the judgment is affirmed. Affirmed.