Schaff v. Mason

LEVY, J. (after stating the facts as above). It is insisted by appellants that the deceased met his death as a proximate result of his own negligence. Considering all the facts and circumstances in evidence, it is thought that there was an issue of fact to be decided by the jury as to whether or not the deceased was guilty of contributory negligence. And the evidence was such, we think, as to authorize a finding by the jury in favor of the appellees on that point. Therefore assignments of error Nos. 3, 4, 5, and 6 are overruled. Reversible error is not warranted under the seventh assignment of error if the other findings, as they do, authorize the judgment rendered by the court. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672. The deceased was a comparatively young man and had a long expectancy of life. The money he earned and the value of the farm products raised by him authorized the amount of the verdict. The verdict is not excessive, and therefore assignment of error No. 8 should bo overruled. We concluded that the railway company as such was not a proper or necessary party to this suit, and that the judgment against the railway company as such should be reformed so as to dismiss them from the suit. The question raised in the second assignment of error has been heretofore determined against the contention made by the appellants. Lancaster v. Keebler, 217 S. W. 1117. The judgment in this case expressly protectL the receiver in the payment of the claim. The judgment as reformed eliminatiJg the railway company is affirmed. The costs incurred by the railway company as such are taxed against the appellees.