
    SOUTHERN PAC. CO. v. WALTERS.
    (No. 2621.)
    (Supreme Court of Texas.
    April 28, 1920.)
    1. Appeal and error ©=>743 (I) — Assignment of error complaining of charge not required to refer to motion for new trial.
    In'a case tried prior to Acts 1913, c. 69 (Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 1954, 1970, 1971, 1973, 1974, 1984a, 2061), requiring rulings in the giving or refusing of instructions to be specifically excepted to, it was not necessary that the refusal of a special charge be complained of in a motion for a new trial, and hence it was not necessary that the assignment of error in relation thereto should refer to the motion.
    2. Appeal and error ©=51114 — Case not remanded for refusal of Court of Civil Appeals to consider an assignment.
    A case will not be remanded because of the error of the Court of Civil Appeals in refusing to consider an assignment, if the assignment is clearly without merit and the question is not exclusively within the jurisdiction of the Court of Civil Appeals.
    3. Appeal and error ©=51083(6) — Whether verdict should have been directed not within final jurisdiction of Court of Civil Appeals.
    In an action for death, an assignment of error complaining of the refusal to give a special charge directing a verdict for want of evidence of negligence presents purely a question of law, not within the final jurisdiction of the Court of Civil Appeals.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Mrs. Mary Walters, administra-trix, against the Southern Pacific Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (157 S. W. 753), and defendant brings error.
    Affirmed.
    Wm. P. Herrin, of San Francisco, Cal., and Beall & Kemp, of El Paso, for plaintiff in error.
    H. M. Wurzbach, of Seguin, and Wallace & Gardner, of El Paso, for defendant in error.
   PHILLIPS, C. J.

The plaintiff in error as the appellant in the Court of Civil Appeals presented an assignment of error — the fifth In the brief, .on the trial court’s refusal to give a special charge instructing a verdict in its behalf. While the error was complained of in the trial court in a motion for a new trial, the assignment contained no reference to the motion. For that reason the Court of Civil Appeals refused to consider the assignment, or any of the other assignments which also omitted any reference to the motion.

The ease was tried and disposed of in the trial court when under the statute law the ruling of the court in the giving, refusing, or qualifying of instructions to the jury was to be regarded as excepted to in all cases, that is, before the passage of the Act of 1913 requiring that such rulings be specifically excepted to. Therefore, for the reasons stated in Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4, and Railway Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471, it was not necessary that the trial court’s refusal of the special charge be complained of in the motion for a new trial. Since it was not necessary to make such complaint in the motion, it was not essential that the assignment of error in relation to the special charge refer to the motion.

While the assignment was entitled to consideration, the case should not be remanded for that purpose if the assignment is clearly without merit, and the question is one not exclusively within the jurisdiction of the Court of Civil Appeals. The special charge, the refusal of which is the subject of the assignment, asked that a verdict be directed because there was no evidence of negligence on the part of the defendant — the suit being one for damages for the death of the husband of the plaintiff from an injury claimed to have been caused by a sudden and negligent jerking of the train in which he was riding. The effect of the assignment was to ask the Court of Civil Appeals to render judgment if the assignment was sustained. This presented purely a question of law, not within the final jurisdiction of the Court of Civil Appeals. We have examined the record on t£e' question. In our opinion there clearly was evidence warranting a jury finding of negligence in the handling of the train. The case was plainly one of fact.

The judgments of the Court of Civil Appeals and District Court are therefore affirmed. 
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