Six of the nine assignments in the brief are predicated on alleged errors of the trial court in refusing to give to the jury special charges requested by appellants. Had the refused charges been given, the jury would have been told in the one numbered 1 to find for appellants if they believed the injury to Jonnie B. Knighton was not caused by her arm striking the locomotive; in the one numbered 3 to find said Jonnie B. Knighton guilty of contributory negligence if they believed she placed her arm beyond the edge of the window, and that an ordinarily prudent person would not have done so; in the one numbered 4 that appellants were not guilty of negligence if they provided the window with a screen said Jonnie B. Knighton could have used to prevent her arm from falling outside the window, and that she was guilty of contributory negligence if the window had a screen and she did not use it; in the one numbered 5 that, if appellants could not reasonably have anticipated that a passenger would extend her arm so far out of the window as to strike an object the train was passing, they were not guilty of negligence in failing to provide against the possibility of the passenger's extending an arm so far out of the window; in the one numbered 6 that appellants were not required to provide screens for the windows to prevent passengers from projecting their bodies or parts thereof out of the car; and in the one numbered 2 to find for appellants because the testimony failed to show they had been guilty of negligence. It will be noted on examination of the fifth paragraph of the charge the court gave the jury, set out in the statement above, that had he given the special charges numbered 1, 3, and 4 the court, in effect, would have been merely repeating instructions he had already given the jury. Hence it was not error to refuse said special charges 1, 3, and 4.
It will also be noted on examination of the fourth paragraph of the charge the court gave to the jury, set out in said statement, *Page 878 that the jury were not authorized to find appellants guilty of negligence if and because they failed to have the window so barred or screened as to prevent a passenger from extending an arm outside of same. Hence it was not reversible error to refuse the special charges numbered 5 and 6.
The theory, as appears from the assignments, on which appellants insist it was error to refuse the special charge numbered 2, and on which they insist that the verdict of the jury was contrary to the evidence, is that the testimony did not warrant a finding that they were guilty of negligence. It is argued in support of the contention that it appeared from the testimony of trainmen as to the position of a "clearance post" beyond which it was the practice not to permit locomotives to pass on the side track, and from testimony of said trainmen, based evidently on such practice, that it was impossible for a person to extend an arm far enough out of the window of a car passing on the other track to strike a locomotive on such side track. The argument ignores testimony to the contrary of that appellants refer to, and which the jury had a right to believe, to wit, the testimony of appellee Jonnie B. Knighton and her sister, who was sitting by her side, that when Jonnie B.'s arm fell outside the window it did strike against some part of a locomotive on the side track.
In support of the assignment attacking as erroneous the fourth paragraph of the court's charge, set out in the statement above, it is insisted it appeared as a matter of law that appellee Jonnie B. Knighton was guilty of contributory negligence, and therefore that appellees were not entitled to recover anything of appellants. The objection, and only objection, made to said paragraph of the charge in the court below, and it is not urged here, was, as shown in the statement above, that there was "no evidence nor pleading," quoting, "that any jerk of the passenger train was caused by any want of care" on the part of appellants. As appellants are in the attitude of having waived the objection they urge here, because they did not present it in the court below (article 1971, Vernon's Statutes; Fisheries Co. v. McCoy, 202 S.W. 343; Gonzales v. Flores, 200 S.W. 851), and as they are not urging here the objection they made in that court, there is no question before this court for consideration with reference to said paragraph of the trial court's charge.
In the assignment not disposed of by what has been said appellants attack the verdict and judgment as erroneous because excessive. But we do not think so when testimony the jury had a right to believe as to the consequences to appellee Jonnie B. Knighton of the injury she suffered is considered.
The judgment is affirmed.