On Motion for Rehearing.
Upon the original submission of this case in this court, the judgment of the trial court was reversed and the cause remanded on two grounds: First, that the court erred in refusing to give a special charge submitting the issue that, when appellee was refused admission through the gate at the station, she should have accepted this as a breach of the contract of carriage, and was entitled to recover only such damages as accrued to her from such breach; and, second, for error in charging the jury as a matter of law that Mrs. Lucas had done all that she was required to do in trying to get her ticket validated or signed by the agent of the At-chison, Topeka & Santa Fé Railway Company at Oklahoma, this fact resting solely upon her own testimony. Upon motion for rehearing, the first question above stated was certified to the Supreme Court, and in answering such question it was held that this court was in error. A., T. & S. F. Ry. Co. et al. v. R. A. Lucas, 144 S. W. 1126. Opinion delivered by the Supreme Court March 27, 1912; opinion of this court December 17, 1910; neither yet officially published.
[2] As this leaves the second ground upon which our reversal rested — that is, that the trial court erred in charging the jury as matter of law that Mrs. Lucas had done everything she could do to have her ticket validated by the agent of the Atchison, Topeka & Santa Fé Railway Company at Okla*1152homa City — the judgment of reversal would have to stand on account of this error. But in the motion for rehearing our attention is called to the fact that there is no assignment of error presented on the part of the Texas & New Orleans Railroad Company to this action of the trial court, but that, on the contrary, it is stated in its brief that the undisputed evidence established the fact referred to. The action was against both roads. The Texas & New Orleans Company in their answer, in case of recovery against it, sought recovery over against the Atchi-son, Topeka & Santa F6- Company. Judgment was rendered against both defendants in favor of plaintiff, but denying the prayer of the Texas & New Orleans Company for recovery over against its co-defendant. No assignment of error to this part of the judgment is presented in the brief of the Texas & New Orleans Railroad Company. The parties made separate defenses, and filed separate briefs in this court. The judgment against the Texas & New Orleans Railroad Company cannot be reversed for errors not presented in its brief. As to it such errors must be considered as waived, and this is not affected by the fact that such errors are presented in the brief of its co-defendant.
As the case stands, under the ruling of the Supreme Court in its answer to the certified question, no errors are presented in the brief of the Texas & New Orleans .Railroad Company which authorize a reversal of the judgment against it, and as to it the judgment is affirmed. For the error in the charge of the court referred to, and properly presented by the second assignment of error of the Atchison, Topeka & Santa Fé Railway Company in its brief, and as to which we adhere to our former opinion, the judgment is reversed as to it, and the cause remanded for a new trial in accordance with the opinion of this court, except in so far as such opinion is overruled by the opinion of the Supreme Court referred to herein.