Texas & N. O. R. v. Harris

(after stating the case as above).

Appellant objected to the submission of the second issue upon the ground it was not raised by the pleadings or the evidence. For like reason error is assigned to the submission of such issue and to the rendition of judgment in favor of plaintiff upon the finding returned in response thereto.

Upon examination of the pleadings we find such issue is not presented, nor is it raised by the evidence. It is true there is an abundance of evidence offered by defendant showing the north gate was completely lowered before it was struck by the car, but it also shows it…