Hollman v. H. & T. C. R. R. Co.

559 Opinion,— A sufficiently careful consideration of the record in this case determines us to apply to the assignment of errors filed by the appellant the rule of practice laid down in Fisk v. Wilson, 15 Tex., 430, which has never since been questioned, and which has been approved, acted on and followed ever since. Justice Wheeler in that case said: “Where the assignment of errors indicates no particular charge or ruling of the court upon instructions which is complained of, but refers in general terms to the several charges refused, and each several charge and instruction given, and on reference to them they are found to be numerous, this court will not deem it necessary to revise them, unless the right and justice of the case may seem to demand it.” An assignment of error which has reference' to a supposed error of law in the charge of the court, if it is obnoxious to the above rule, as being too vague and general in failing to point out the special ground of objection to it, will not requiré a critical revision of the charge, unless the error is of a controlling character, plainly obvious on an inspection of the charge. Norvell v. Phillips, 46 Tex., 176. See, also, Trammel v. McDade, 29 Tex., 362; Pearson v. Flannegan, 52 Tex., 266; Green v. Dallahan, 54 Tex., 285. The case of H. & T. C. R. R. Co. v. Shafer, 54 Tex., 647, is in point on a record almost identical with this as respects the charges given and refused, and the assignment of error in reference to them. There the court refused to consider the error assigned and to revise the charge. The rule was applied also in Gilleland v. Drake, p. 507, ante, and Smith and wife v. City of Dallas, p. 627, post. As applied to the evidence before the jury, the charge given by the court contained no legal proposition that was obviously or clearly wrong, and calculated to mislead the jury to a wrong determination of the issues between the parties. The issue in the case was whether the railroad company was liable, when a man not an employee, by 560 standing on the platform of the moving train, so obstructed the way as to cause plaintiff to lose his footing and fall from the train, thereby causing the injury complained of. The plaintiff’s petition and his own testimony ascribes the accident to the presence and action taken on the occasion by the passenger in question, but ho evidence before the jury entitled them to ascribe the consequences of the acts of that man to the defendant and render the company accountable therefor, by reason of a want of care on its part in permitting him to be where he was- when plaintiff attempted to clamber into the car while in motion. If this view of the case is correct, it must follow from it that, under no charge which might properly have been given, was the plaintiff entitled to recover under the evidence. Where, upon the whole case, the verdict could not have been different under the law and evidence, the giving or refusing instructions will not necessarily work a reversal of the judgment. Sypert v. McCowan, 28 Tex., 639; Bohannan v. Haus, 26 Tex., 551; Fisk v. Wilson, supra; Davis v. Loftin, 6 Tex., 489. If the risk is taken voluntarily by the passenger, without fault of the company, or inducement to procure him to do so, and he is injured, andsaid injury is attributable to the motion and speed the cars are making, without the accident being associated with any other fault or act of the agents of the railroad company, the misfortune, in such case, even if not wholly chargeable to himself, is contributed to by his own rashness. Judgment affirmed.