Torres v. Kansas City, M. & O. Ry. Co. of Texas

On Motion for Rehearing by Appellant.

We have reached the conclusion that we were in error in holding that the trial court properly excluded the testimony of the two witnesses to the effect that under the printed rules of appellee it was within the scope of a brakeman’s duty to eject trespassers from trains. The general rule stated in our opinion is correct. However, the issue presented in the instant case falls, we think, within the following well-established rule:

“Where the nature of the action or defense, or the form or, contents of the pleadings, give notice to the adverse party that it is…