I. & G. N. R'y Co. v. Underwood

Citations

• 64 Tex. 463

Syllabus

<p>1. Practice — Appointing experts.— Though the right to have an examination made of one who sues to recover damages for permanent injuries to his person, in order that their extent may be known, and to have it done by skilled persons under order of the court, has been maintained, when shown to be necessary to further the ends' of justice; yet, á cause will not be reversed for a refusal to order such an examination made, in the absence of a showing that it was necessary to a full presentation of all the facts, and where it was not shown that the plaintiff was unwilling to submit to an examination by any competent person.</p> <p>2. Practice — Charge op court. — When from a bill of exceptions it is apparent that the trial judge would have refused a charge on a matter, the failure to incorporate which in the main charge was assigned as error, the error will be considered on appeal, though no charge was asked by the party complaining.</p> <p>3. Charge op court. — The charge of the court should always he so framed as to present to the jury the issues made by the pleadings, if there be evidence under them, unless an issue be abandoned, concerning which abandonment the jury should be instructed.</p> <p>4. Same.— When a petition claims exemplary damages for an alleged wrong, and a question exists as to whether the evidence shows such facts as will sustain the claim, a charge should be given on that subject unless, in consequence of an oral statement made in court, the court by a charge withdraws the consideration of such claim for exemplary damages from the jury.</p> <p>5. Same.— To withdraw such a claim from the consideration of the jury simply by a verbal declaration by counsel of its abandonment, made after the evidence is closed, and during argument, is not sufficient. It should be withdrawn from the consideration of the jury in the charge of the court, distinctly calling their attention to the fact that it is abandoned, and charging them as to the remaining issues.</p