Ramirez v. Salinas

Mr. Presiding Judge Smedley delivered the opinion of the Commission of Appeals, Section B. 1 We find from examination of the application for writ of error, after submission of the cause, that the application was improvidently granted,- because it fails to state, as required by Rule No. 1 for the Supreme'Court, that the particular decision or ruling sought to be reviewed was assigned as error in motion for rehearing filed in the Court of Civil Appeals. The application for writ of error contains no reference to the motion for rehearing in the Court of Civil Appeals and does not state that a motion for rehearing was filed. It becomes necessary, therefore, to set aside the order granting the application and to dismiss it. Leonard Bros. v. Newton, 129 Texas 1, 101 S. W. (2d) 223; Glenn v. McCarty, 130 Texas 641, 107 S. W. (2d) 363, 110 S. W. (2d) 1148; Casualty Reciprocal Exchange v. Dawson, 130 Texas 362, 107 S. W. (2d) 994. 2 We have, however, examined the transcript, the statement of facts and the briefs, and if jurisdiction of the cause were retained we would affirm the judgments of the trial court and the Court of Civil Appeals, on the ground that it was not necessary to submit to the jury the question of proximate cause, because the only reasonable conclusion that can be drawn from the evidence is that the negligence of the operator of the truck in driving it on the public highway at night without , lights proximately caused the death of defendants in error’s son. Texas & Pacific Ry. Co. v. McCoy, 90 Texas 264, 38 S. W. 36; St. Louis *539 S. W. Ry. Co. of Texas v. Missildine, 157 S. W. 245 (application for writ of error refused) ; Crow v. Southwestern Transportation Co., 73 S. W. (2d) 607 (application for writ of error refused) ; International-Great Northern R. R. Co. v. Hawthorne, 131 Texas 622, 116 S. W. (2d) 1056, decided May 25, 1938. The order granting the application for writ of error is set aside and the application is dismissed. Opinion adopted by the Supreme Court June 1, 1938.