
    CHICAGO, R. I. & G. RY. CO. et al. v. CARTER et al.
    (No. 358-3140.)
    (Commission of Appeals of Texas, Section A.
    Nov. 29, 1922.)
    1. Appeal and error c®=3302 (6) — Sufficiency of the evidence reviewed where motion for new trial attacked ruling on motion for directed verdict.
    Defendants’ action in assigning as error in their motion for new trial the refusal to instruct a verdict in their favor was sufficient to authorize consideration by the appellate court of defendants’ assignments of error questioning the sufficiency of the evidence to support the verdict.
    2. Appeal and error <S=s>750(4) — Assignment of error held to challenge the sufficiency of the evidence to support a special finding of the Jury.
    An assignment of error that the answer to special issue No.-1 was not supported by the testimony for the reason that the great weight of the testimony showed that at the time of killing deceased the train had passed and deceased had crossed over the track and the watchman had returned to his shanty, and there was no occasion or necessity for the watchman to act as such, and no possibility of his so acting, was sufficient to challenge the sufficiency of the evidence to support the find ing that the watchman was continuing in Ms duties as such when he killed deceased.
    <§=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    
      Certified Questions from Court of Civil Ap-' peals of Fifth Supreme Judicial District.
    Action by Mrs. Minnie L. Carter and others against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiffs, and defendants appeal. On certified questions by the Court of Civil Appeals.
    Questions answered.
    N. H. Lassiter and Robert Harrison, both of Fort Worth, and Murphy W. Townsend, of Dallas, for plaintiffs.
    Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for defendants.
    Smith, Robertson & Robertson and Ether-idge, McCormick & Bromberg, all of Dallas, amici curiae.
   SPENCER, P. J.

According to the certificate the suit was by plaintiffs, the wife and children of D. H. Carter, to recover damages of defendants for the alleged negligent killing of Carter by one Lesure, an employé of defendants, while the latter was in the discharge of his duties as flagman or watchman.

Immediately upon tbie conclusion of the evidence, attorneys for defendants requested a peremptory instruction in their favor, which was refused. To the action of the court in refusing to peremptorily instruct the jury defendants objected upon the following grounds:

“That the evidence without dispute disclosed: (1) That the flagman was not acting within the scope of his employment or his authority when he killed Carter; (2) that the flagman did not kill Carter in the performance of his duty or employment; (3) that when the flagman killed Carter he had turned aside from the performance .of his duties; (4) that the killing of Carter was intentional, not negligent.”

The court, over defendants’ objections, referred the issues of fact to the jury for determination. The objections urged to the issues submitted to the jury were substantially the same as those urged to the court’s action in refusing to direct a verdict in their favor. The jury returned answers to the issues submitted warranting a judgment for plaintiffs, and a judgment based upon the jury’s findings was rendered in plaintiffs’ favor. . '

In their motion for new trial defendants presented all of their objections and exceptions to the submission of the special issues. But their briefs in the Court of Civil Appeals contained no assignment embodying their objections to the submission of the special issues to the. jury. ’All errors assigned in the motion for new trial, in so far as they bear upon the questions certified, relate to the refusal of the court to grant the peremptory instruction, and are founded upon the contention that the evidence was insufficient to warrant the submission of the case to the jury. Similar errors are assigned in the briefs. Nowhere in the motion for new trial is it specifically contended or assigned as a ground for new triál that the verdict is without support in the evidence, unless their first six assignments of error, which were included in the motion for new trial, have that effect. The first assignment reads:

“The court erred in failing and refusing to give this defendant’s requested charge numbered 1, requesting the court to instruct the jury to return a verdict for this defendant, because the undisputed testimony shows that the watchman, Lesure, was not acting within the scope of his employment, or of his authority, when he shot Carter, as shown by this defendant’s bill of exception No. 1.”

Under these assignments of error defendants present the contention that the verdict of the jury is without support in the evidence. The assignments and contentions are based upon the refusal of the court to peremptorily direct a verdict in their favor. ■ The plaintiffs objected to any consideration of the assignments upon the ground that, no complaint having been made in the motion for new trial that the findings of the jury were without support in the evidence, such issue was waived and could not be considered by the Court of Civil Appeals.

Under this state of facts there was a.difference of opinion among the justices of the Court of Civil Appeals as to whether that court should consider the assignments of error, based upon the court’s refusal' to peremptorily instruct the jury to return a verdict for defendants. . Because of this disagreement and the further fact that that court was of the view that there is a conflict of decisions among the Courts of Civil Appeals upon this question, the following questions were certified to the Supreme Court:

“Question 1. Is the action of the court below in refusing to peremptorily direct verdict for appellants before submission of the case to the jury sufficient to authorize consideration by this court of the contention that the verdict is without support in the evidence, or was if necessary, in order to review that question, that the insufficiency of the evidence should have been independently and separately assigned in the motion for a new trial after verdict?
“Question 2. Is the action of the court below in refusing to peremptorily direct verdict for appellants on the ground that the evidence was insufficient to warrant reference of the facts to the jury such matter of record which may be reviewed in this court without being presented to the trial court in a motion for new trial?
“Question 3. Is the setting out in the motion for a new trial that the peremptory instruction should have been given because the evidence did not warrant a reference of the ease to the jury substantially setting out that the verdict of the jury was without support in the evidence?”

It is our opinion that the action of the trial court in refusing to give a peremptory instruction at tlie conclusion of tlie evidence of all the parties, when viewed in connection with defendants’ action in assigning as erpor in the motion for new trial the court’s refusal to peremptorily instruct the jury to return a verdict in their favor, is sufficient to authorize consideration by the Court of Civil Appeals of defendants’ assignments of error, questioning the sufficiency of the evidence to support the verdict.

If the evidence was insufficient to carry the case to the jury, then the primary error committed by the court was in submitting the case to the jury. The peremptory instruction challenged the sufficiency of the evidence. It was in effect a demurrer to the evidence. Defendants not only objected to the action of the court in refusing the instruction, but embodied their objections in a bill of exceptions, which was approved by the trial court, specifying in what particulars the evidence was insufficient. They not only objected at its very inception to what they conceived to be an alleged error of the court, but perpetuated their objections by including them in their motion for new trial. Having done this, they were not required to incorporate in their motion for new trial an independent assignment questioning the sufficiency of the evidence. It was, we think, optional with them whether they repeated their objections by attacking in the motion for new trial the sufficiency of the evidence to support the finding of the verdict. Western U. Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; St. Douis S. W. Ry. Co. v. McArthur, 96 Tex. 65, 70 S. W. 317.

The answer to Question No. 1 renders unnecessary answers to Questions Nos. 2 and 3.

The Court of Civil Appeals also sets out defendant’s fifteenth assignment of error, which is as follows:

“The answer to the special issue No. 1 is pontrary to the great weight and preponderance of the testimony and not supported by the testimony for the reason that the uncontro-verted testimony and great weight of the testimony showed that at the time of the killing of Carter the train had passed and Carter had crossed over the track and the watchman had returned to his shanty, and there was no occasion or necessity for Lesure to act as watchman, and no possibility of his so acting.”

Based upon this assignment, the following question is certified:

“Question 4. Does the foregoing assignment of error challenge the sufficiency of the evidence to support the verdict of the jury, or does it merely assert that the evidence discloses without dispute certain facts which might or might not tend to prove that the flagman was or was not in the performance of his duty? ”

Special issue No. 1 reads:

“Was Lesure, at the time or times that he got his gun and killed Carter, continuing in his duties as watchman to deal' with Carter? ”

In our opinion the assignment of' error challenges the sufficiency of the evidence to support the jury’s finding as to special issue No. 1. . It was defendants’ theory that Lesure was not in the discharge of any duty connected with his employment at the time that he killed Carter, but that he stepped aside from his path of duty and slew the deceased. To determine whether the assignment deserves consideration, the test is: Assuming that the facts set forth therein were uncontroverted or preponderated in defendants’ favor, as contended by them, would the giving effect to such facts overturn the finding ‘of the jury upon the issue challenged by the assignment as being without evidence to support it? .

The assignment, in substance, directs the court’s attention to different phases of the evidence relied upon by defendants as showing a complete defense to plaintiffs’ cause of action. Assuming that the evidence was rm-controverted, showing that Lesure had completed his duties as watchman and that there was no occasion or necessity for him to act as watchman or flagman — in other words, that he was not in discharge of his duty, but had stepped aside therefrom — then the jury’s finding, which was to the contrary of this contention, would be overturned. The same result would follow if there was such a preponderance of evidence against the findings of the jury as would justify the court in holding that the evidence was insufficient to support the finding.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted and ordered certified to the Court of Civil Appeals.  