
    TEXAS & P. RY. CO. v. BROWN.
    (No. 1277.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    1. Appeal and Error (§ 230) — Instructions —Necessity of Objection.
    Objections to instructions given, not presented to the court before he read his charge to the jury, as required by Vernon’s Gayles’ Ann. Civ. St. 1914, art. 1971, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230; Trial, Cent. Dig. § 680.]
    2. Appeal and Error (§ 544) — Instructions —Necessity of Exception.
    Rulings of the court in refusing special charges, not presented for review by bills of exception, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the giving, refusing, or qualifying of instructions shall be deemed to have been approved, unless excepted to in the manner provided, cannot be considered on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    8. Explosives (§ 7) — Injuries fbom-x-Ver-DICT — SUFFICIENCY OF EVIDENCE.
    In an action for negligence proximately causing an explosion, in that defendant failed to furnish electric or other safe and sufficient lights which would not permit the flames thereof being communicated to oil used in torches, the fact that it appeared' that the oil furnished was that commonly used in torches, and that it was not shown that a better grade of oil could have been furnished for such use, did not render a verdict for plaintiff contrary to the evidence, where, for aught appearing to the contrary, the finding of defendant’s liability was based on its negligence in not furnishing safe and sufficient lights.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.]
    4. Explosives (§ 7) — Injuries from — Question FOB JUBT — CONTRIBUTORY NEGLIGENCE.
    On the evidence in an action for negligence proximately causing an explosion, held, that whether plaintiff was guilty of contributory negligence in the manner in which he held his torch to be filled with oil was for the jury.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by John Brown against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. M. B. Parchman and M. P. McGee, both of Marshall, for appellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   WILLSON, C. J.

Having granted the motion of appellant for a rehearing and set aside the submission taken of the cause, and, after permitting it to file briefs, having submitted the cause again on its and appellee’s briefs, the appeal will now be disposed of with reference to the assignments of error.

In nine of its assignments appellant complains of the action of the court in giving and refusing instructions to the jury. It does not appear from anything we find in the record that the objections made to the instructions given were presented to the court before he read his charge to the jury, as required by article 1971, Vernon’s Statutes ; nor are the rulings of the court in refusing special charges requ'ested by appellant presented to this court for review by bills of exception, as required by article 2061, Vernon’s Statutes. These assignments,, therefore, cannot be considered. Railway Co. v. Wadsack, 166 S. W. 42; Johnson v. Hoover, 165 S. W. 900; Roberds v. Laney, 165 S. W. 114; Railway Co. v. Galloway, 165 S. W. 546; Saunders v. Thut, 165 S. W. 553.

The verdict of the jury Is attacked as contrary to the evidence, in that, as appellant insists is true, it appeared from uncontradicted testimony that the oil it furnished was of the kind commonly used in torches, and did not appear that there was a better grade of oil which it could have furnished for use in the torches. If it should be conceded that appellant’s contention in this respect should be sustained, it would not be a reason why the judgment should be reversed. For appellee alleged that appellant was guilty of negligence which proximately caused the explosion, in that it failed to furnish “electric or other safe and sufficient lights ,which would not admit of the flames thereof being imparted to said oil and gas given off by said oil,” and proved facts authorizing a finding by the jury to that effect. For aught we know to the contrary, the finding of liability on the part of appellant was based on negligence in that respect. Railway Co. v. Woods, 149 S. W. 372; Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170.

It is further insisted that the verdict is contrary to the evidence, in that it appeared that the explosion must have been caused by the manner in which appellee “held his torch while Pierce was filling his torch with oil, and by the proximity in which Brown held his burning torch to the One being filled.” The testimony with reference to this phase of the case was that the oil can was on an iron block about iy2 feet high. Pierce was filling his torch by so tilting over the can as to cause the oil to run from it into the torch held under it, while appellee was standing 314 or 4 feet from him, holding his (appellee’s) torch up, over Pierce’s head, so the latter could see how to pour the oil. We do not think we would be warranted in saying from this testimony that it appeared, as a matter of law, that appellee was guilty of negligence in the manner in which he held his torch.

The judgment is affirmed.  