
    INTERNATIONAL & G. N. RY. CO. v. SUTHERLAND.
    (No. 5722.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.)
    1. Appeal and Eeboe <§=>742(4) — Reservation op Geounds op Review — Admission of Evidence.
    Where the statement following an assignment of error to the admission of testimony failed to show it was objected to, or any bill of exceptions taken to refusal to withdraw it from the jury, and no such bill appeared in the record, which showed the jury was instructed not to consider the testimony, the assignment will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec.' Dig. 742(4).]
    2. Evidence <§=5368(1) — Documents — Pbo-DUCTION OP WBITTF.N CONTEACT.
    Where the suit of a shipper of live stock for damages from negligence in handling was not based on a written contract, but on the contract arising from delivery to a railway to be delivered by it to the negligent road, and no effort was made to have a bill of lading produced, the court was not in error in failing to require plaintiff to produce any written contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1540; Dec. Dig. <§=5368(1).]
    Appeal from Jim Wells County Court; L. Bxoeter, Judge.
    Suit by G.'W. Sutherland against the International & Great Northern Railway Company and another.’ From a judgment for plaintiff against the named defendant, it appeals.
    Judgment affirmed.
    Greer & Hamilton, of Laredo, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty, and H. S. Bonham, all of Beeville, for appellees.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover damages arising from negligence in handling certain cattle and delay in transportation, said cattle having been shipped from Hebbronville, Tex., to Ft. Worth, Tex. There was no contract alleged, except one arising from delivery of the cattle to the Texas Mexican Railway Company to be by it delivered to appellant. Receivers of appellant answered by general demurrer and" general denial. The cause was submitted to a jury on special issues, and upon the answers judgment was rendered for appellee as against appellant for $250, and in favor of the Texas Mexican Railway Company, that appellee recover nothing by his suit.

The first assignment of error seeks to raise error as to the admission of testimony upon the part of J. W. Sutherland as to a conversation he had with C. Hanson, appellant’s live stock agent. The statement following the assignment of error fails to show that the evidence was objected to, or that any bill of exception was taken to a refusal to withdraw it from the jury. No such bill of exceptions appears in the record, and if it did the record shows that the jury was instructed not to consider the testimony to which the assignment of error applies. The assignment of error will not be considered.

The second assignment of error seeks to question the action of the court in failing to require appellee to produce a bill of lading or other written contract. The statement fails to indicate that appellant made any effort to have appellee produce a bill of lading. It would have been rather difficult for appellee to produce a bill of lading, as none was given him by the initial carrier, and his suit was not based on a written contract. The statement under the assignment of error seems to have no application to it whatever. The assignment of error is overruled.

It was alleged as one of the grounds of negligence that appellant had caused the cattle “to be needlessly unloaded for feed and water, whereby said stock were delayed for many hours.” For some reason not disclosed by the assignment of error, which is submitted as a proposition, objection is made to the submission of the issue, but the record fails to show that any such issue was submitted to the jury. The assignment is overruled.

The evidence is sufficient to sustain the answers of the jury.

The judgment is affirmed.  