As stated in the opinion in this case, there is not a particle of testimony that even tends to establish washouts on the Mexican Central Railway; and if the track was "soft" it was not on account of an unprecedented rainfall, for it was shown by some of appellant's witnesses that it occurred every year, and one of the witnesses said he did not know why the appellant did not fix its road. The evidence shows that not an act of God, but the negligence and want of ordinary care upon the part of the corporation, caused the road to be in bad condition, if it was in bad condition. No witness swears that there were any washouts, and Newell, the train dispatcher for appellant, swore, "I do not remember any trouble with any bridges or culverts, though there may have been."
Newell says that Comfort told him that the company would not receive the freight on account of the strike and washouts, but Comfort does not swear that there were any washouts. But appellant says it was not Conductor Comfort, but another Comfort, who was a "division superintendent," who told Newell this. The record does not show that any other Comfort had any connection with appellant, and if there was any division superintendent named Comfort, the record does not disclose it.
It is insisted in the motion, that this court erred in holding, "that the question in regard to a strike being in operation had interfered with traffic on the Mexican Central Railway was fully submitted to the jury, and further practically admitted that the strike was of little consequence." We quote from the brief of appellant: "The charge of the court fairly enough submitted to the jury defendant's nonliability on account of delay at El Paso, Texas, by reason of the strike alone." Again the brief says: "But there was evidence tending to show that the strike was of little consequence."
We think the statement in the opinion of which complaint is made is fully justified by the brief. It would, however, be immaterial if it were not; the question of the strike was fairly submitted to the jury, and there was no testimony to justify the submission of the question of washouts.
The fifth ground for rehearing sets up other reasons than those in the second assignment of error, which are, the court erred in its charge to the jury in assuming that the written contract was for a through shipment and refusing to give the special charge requested. There is, however, no merit in this paragraph of the motion.
Appellant desires this court to consider an assignment of error not copied into the brief, and which was thereby waived. This can not be done. The object in requiring assignments of error to be copied into a brief is to apprise the appellee and the court upon what appellant relies for a reversal, and it is too late after the fire of the opposite party has *Page 684 been drawn, and the opinion of the court elicited, to permit an appellant to fall back on his reserved assignments to reinforce his position. It would be allowing an advantage that will not, we think, be tolerated in any court.
Appellant contends that the error, however, was fundamental, and should have been noticed without an assignment. We think not. It was not error of any kind to instruct the jury, that "So much of the written contract as seeks to relieve the defendant from the liability of a common carrier, and to relieve it from the consequences of negligence on the part of its agent or employes, is unreasonable and void; as the law will not permit a carrier, like the defendant, by contract to relieve itself of negligence on part of itself or its servants." Railway v. Harris, 67 Tex. 166 [67 Tex. 166].
The motion for a new trial in the lower court was as follows: "Now comes defendant in the above styled and numbered cause, and moves the court to set aside the verdict and judgment herein, and grant it a new trial: first, for the reason that the verdict of the jury was without evidence to support it, and was contrary to the law as given in charge of the court; second, for the reason that the court erred in its charge to the jury; third, for the reason that the court erred in refusing to give to the jury defendant's special charges requested."
From this motion, general and indefinite, and which directs the mind of the court below to no specific error, sprung seven assignments of error, six of which were copied into the brief, and were fully considered by this court, and the seventh is abandoned in the brief, and is attempted to be brought forward for recognition for the first time in the motion for rehearing. Applying rules 67 and 68 for the government of District Courts to this case, and we might with reason have refused to consider any of the assignments of error.
The motion for rehearing is overruled.
Motion overruled. *Page 685