In this motion appellant elaborately insists that error was committed by us in the following portion of the original opinion in this case:
"In the nineteenth assignment of error complaint is made that the court erred in submitting in its charge to the jury the question as to whether or not the air brakes attached to the car causing the injury were defective. It is contended, that there was no evidence that the air brakes were in any respect defective. The evidence bearing upon this issue was, in our opinion, extremely meager. There were, however, circumstances indicating that the air brakes were defective. These circumstances consist mainly in the fact that they were not sufficient to hold the detached cars, though the latter were on ground apparently level, or nearly so, and that the air brake holding the baggage car on which the work was being done was sufficient to keep it stationary. While the evidence on this issue preponderated, in our opinion, in favor of appellant, we are unable to say that the testimony in behalf of appellee was so scant as to justify the court in failing to submit the issue. We are confirmed in our view as to the correctness of this conclusion from the failure of the appellant to complain of the verdict on this ground."
In this connection we state:
1. As we read the record, appellant failed, in any manner sufficient to challenge the attention of this court, to complain of the verdict on *Page 364 the ground that there was no evidence that the air brakes in question were defective. No proposition embracing this ground, either formally or substantially, is set out either in its motion for a new trial or in its assignments of error.
In its twenty-fourth assignment of error, which embodied its twelfth ground for a new trial, among a number of other propositions, referring, in some instances, to different and distinct issues, appellant alleges, that "the evidence shows by a great preponderance thereof that * * * the air brakes were not defective." There is a palpable difference between the proposition that the evidence preponderates on a given issue, and the proposition that there is no evidence on that issue. Indeed, the proposition that the evidence greatly preponderated in favor of a sufficiency of the air brakes includes the idea that there was evidence, though meager, showing them to be defective.
This twenty-fourth assignment of error is grouped in appellant's brief with the twenty-second, twenty-third, and twenty-fifth assignments of error, and thus grouped, each containing in itself propositions, sometimes cognate and sometimes otherwise, they are submitted as in themselves propositions to be considered by the appellate court. This method of inviting a revision of questions involved is so violative of rule 29 of our Supreme Court with reference to the proper preparation of briefs, that we would probably have merited pardon had we overlooked a complaint so confusedly urged by appellant on the ground referred to. Besides, the action of appellant in itself requesting (as it did in its third special instruction) the submission of this issue of defective air brakes, would tend to cause us to overlook such a complaint, if indeed it had been made.
2. We adhere to our former conclusion, that there was evidence, circumstantial in character, to the effect that the air brakes in question were defective. If there be evidence, though meager, tending to support an issue of fact, it is improper for the court to withdraw this issue from the jury. Parker v. Chancellor,78 Tex. 528; Railway v. Robertson, 82 Tex. 661 [82 Tex. 661]; Fitzgerald v. Hart, 17 S.W. Rep., 369. It would probably have been the duty of the court to set aside the verdict had it been rendered on this issue against the great preponderance of the evidence. As indicated, however, in our original opinion, the verdict of the jury was, as we think, founded, not upon the issue of the defective air brakes, but upon the issue of inexperience on the part of the plaintiff, and of the failure of appellant to provide him with proper rules and regulations, as set forth in the second count of his petition.
3. If we be mistaken in the conclusion that there was evidence tending to show defects in the air brakes, an inspection of the record leads us to think that appellant's proposition asserting the contrary did not, in the first instance, merit consideration from us. This proposition is as follows: *Page 365
"There was no evidence before the jury that the air brakes were in any respect defective. It is a reversible error for the court to charge upon an issue in support of which there is no evidence, as it creates in the minds of the jury an impression that in the opinion of the court there is sufficient evidence to warrant a finding upon such issue."
The proposition is submitted under appellant's nineteenth assignment, asserting error in the first paragraph of the court's charge. This assignment is copied in the brief only in part. It contains, as shown by the record, not by the brief, four specifications of error in regard to the charge to which it refers. The specifications relate exclusively to the character of the plaintiff as inspector, and to his duties as such. They do not even remotely refer to the issue of defective air brakes. To have entitled the appellant to a review by us of the proposition referred to, it should have embodied or covered the proposition, substantially at least, in an appropriate assignment of error, and have copied this assignment in its brief. Such action on the part of an appellant is suggested and required by that spirit of fairness to the adverse litigant which evidently caused the adoption of article 1037 of our Revised Statutes, on the subject of assignments of error, and of rules 24 and 29 of our Supreme Court with reference to the submission of causes in the appellate courts. We do not think that it comports with this spirit of fairness that a litigant should be heard to complain in the appellate court of an error in a charge of the trial court, not fundamental in character, which it has wholly failed to include in an appropriate assignment of error. We are of opinion that the remaining grounds of the motion do not require comment.
The motion for a rehearing is overruled.
Motion overruled.
This case did not reach the Reporter with others of its date. *Page 366