author: DIXON, Chief Justice.

text:
    TEXAS POWER & LIGHT COMPANY, Appellant, v. TRINITY VALLEY RANCH COMPANY, a Corporation, et al., Appellees.
    No. 16598.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 15, 1965.

      Burford, Ryburn & Ford, Wayne Pearson and Spencer C. Relyea III, Dallas, for appellant.
    Thompson, Coe, Cousins & Irons, R. B. Cousins and Franklin H. Perry, Dallas, and Ralph M. Hall, Rockwall, for appel-lees.
   DIXON, Chief Justice.

Texas Power & Light Company, con-demnor, has appealed from a judgment of $87,023.60 awarded to appellees Trinity Valley Ranch Company, a corporation, the landowner, hereinafter called the Ranch, and Lincoln Liberty Life Insurance Company, mortgagee, in a condemnation proceeding whereby appellant acquired an easement across land owned by the Ranch. The insurance company is the holder of a mortgage in the amount of $686,050 against the Ranch property.

The easement is 250 feet wide and 17,000 feet long. It includes 101.841 acres.

At the time of the trial appellant had completed on the easement a 345,000 volt transmission line supported by sixteen steel towers varying in height from 103 to 109 feet and located approximately 1100 feet apart. The tallest tower measures 17 feet by 32 feet at the ground level. There are eight separate wires running from tower to tower. At the lowest sag point between towers there is a clearance of approximately 32 feet. Appellant intends at some undetermined time in the future to construct on the easement another transmission line somewhat smaller than the line now in existence. It has the right to construct still other lines.

Under the terms of the taking appellant has no right to occupy any of the land permanently except that covered by the easement; may not fence or enclose the easement, or use it for any purpose except for the construction, maintenance and use of the transmission lines; and the Ranch has the right to pass back and forth over the easement, to raise crops on it and to use it for any purpose not inconsistent with appellant’s use of the transmission line facilities. At the time of the trial crops were growing on the easement.

The land owned by the Ranch consists of 4939.84 acres in three separate tracts. One tract of 3439.57 acres is separated a distance of 297 feet from a tract of approximately 1250 acres. The third tract, some distance away, consists of 250 acres. The Ranch contends that the three properties are operated as a unit in a business of cattle raising and agriculture.

The manager of the Ranch testified that 3,000 acres of the largest tract are fertile bottom land and the remaining 439 acres are hill land. A levee protects the land from flooding when the Trinity River rises. The 1250-acre tract includes 1000 acres outside the levee. The 250-acre tract includes 100 acres of flood land inside the levee.

At the time of the trial there were many cattle on the ranch. Also there were 850 acres of oats, 1300 acres of maize, 600 acres of coastal Bermuda grass, 2000 acres of Johnson grass and a number of acres in alfalfa.

In answer to four special issues a jury answered that (1) the reasonable market value of the land covered by the easement immediately before the acquisition of the easement was $25,322.50; (2) immediately after, $5,065.50; (3) the value of the remainder immediately before was $834,570; (4) immediately after, $767,804. The judgment of $87,023.60 was based on these findings.

In six points on appeal it is the position of appellant that (1 & 2) there is no evidence, or there is insufficient evidence, to> support the jury’s answer to Special Issue No. 4; (3 & 4) there is no evidence, or there is insufficient evidence, to support the jury’s finding of damages as reflected by its answers to Special Issues Nos. 3 and 4; and (5 & 6) there is insufficient evidence to support the jury’s answers to Special Issues Nos. 1 and 3.

Four experts on real estate values testified in behalf of the Ranch. Three testified in behalf of the appellant. An analysis of their testimony and of the jury’s findings follows:

As is not unusual in condemnation suits there is a great variance among the experts in their opinions as to land values and damages. The highest damage figure named by appellant’s experts was $11,344. The highest named by appellees’ experts was $201,950.

We cannot agree with appellant when it asserts in its first and third points that there is no evidence to support the jury’s answer to Special Issue No. 4 (that the reasonable market value of the remainder after the acquisition of the easement was $767,804.40) and to the jury’s finding of damages as reflected by its answers to Special Issues Nos. 3 and 4 (answer to No. 3: value of remainder before the acquisition, $834,570). By reference to the chart of the testimony above shown it will be seen that there is testimony to support the jury’s answers.

The only other points presented by appellant allege that the evidence is insufficient to support the jury’s answers to Special Issues Nos. 1, 3 and 4 and to the jury’s finding of damages as reflected by its answers to Special Issues Nos. 3 and 4. These points in substance assert that the jury’s answers to the named issues are so contrary to the weight of the evidence as to be manifestly wrong. The jury’s answer to Special Issue No. 1 was that the 101 acres covered by the easement had a reasonable market value of $25,322.50 before acquisition of the easement.

Again referring to the above chart of the testimony we believe it is apparent that there is sufficient evidence to support the jury’s answers. It was for the jury to pass on the credibility of the witnesses and the weight to be given to their testimony. In every instance their answers were less than the values as testified to by the Ranch’s witnesses but more than the values testified to by appellant’s witnesses.

Appellant cites the holding in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837. In that case the judgment was reversed because (1) there was no specific testimony detailing in what ways the activities of the con-demnor on the easement would affect the value of land outside the easement; (2) there was no showing that the decline in value would be uniform throughout the remainder of land not covered by the easement; and (3) the jury based the damages on a per acre basis and must have determined that each acre was depreciated in value to the same extent. In- our opinion the holding is not applicable to the testimony in the record now before us.

In this case the witness Ridell testified that the value of the land was “350 an acre average.” This would indicate that he did not value each acre the same, but struck an average of their values for purposes of computing the value of the whole. Further, though he took into consideration all of the 4939 acres of the Ranch, he expressly stated that the 1250-acre tract had not been damaged at all by the taking and he did not include any damage to the 250-aere tract in his computations. In effect he testified that only the 3439-acre tract suffered any damage. It was the only one of the three tracts which was bisected by the easement.

In considering the sufficiency of the evidence we also bear in mind that no objection was made to the testimony because it was on a per acre basis, and no objections were made to the issues submitted by the court. In fact, appellant’s witnesses themselves testified as to the values per acre, though they did testify that the remainder was not damaged at all.

There was a great deal of testimony by the landowner’s witnesses in support of their opinion as to the damages suffered by the remainder because of the acquisition of the easement. The growing crops must be sprayed by airplane with an insecticide, and the towers and wires erected and to be erected by appellant greatly impede the spraying on and near the easement with the result that insects tend to spread to other portions of the ranch. Seeds of weeds are spread by birds resting on the cables and are blown to other parts of the Ranch. Plowing and cultivation are rendered difficult and inconvenient. The crops on the easement may be torn and trampled by appellant’s workmen and equipment in the construction and maintenance, of appellant’s facilities. Mutilation of the crops and ground took place when the present towers and cables were installed. Prospective purchasers consider the hugh towers and cables unsightly and devalue a piece of property when it is bisected by towers and power lines, thus causing a reduction in the market value of a tract. These and other matters were testified to by witnesses in support of their testimony that the taking of the easement would damage the remainder of the property, especially the 3439-acre tract. These elements are properly to be considered in assessing values and damages. Texas Power & Light Co. v. Jones, Tex.Civ.App., 293 S.W. 885; Texas Electric Service Co. v. Etheredge, Tex.Civ.App., 324 S.W.2d 322; Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., 228 S.W.2d 925; South Texas Electric Cooperative, Inc. v. Beutnagel, Tex.Civ.App., 388 S.W.2d 447.

The witnesses for the Ranch did not testify as to any comparable sales. There was testimony that no comparable sales had been found. Appellant’s witnesses did testify as to comparable sales. But the Ranch in rebuttal offered the testimony of the witness Ferguson, who testified in lengthy detail about all of the alleged comparable sales referred to by appellant’s witnesses. He. undertook to show that they were not comparable.

Appellant’s points on appeal are overruled. The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    E. C. SUTHER et ux., Appellants, v. STATE of Texas, Appellee.
    No. 4368.
    Court of Civil Appeals of Texas. Waco.
    Oct. 21, 1965.
    Rehearing Denied Nov. 10, 1965.

      Mac L. Bennett, Jr., Normangee, for appellants.
    Waggoner Carr, Atty. Gen., Fred Spence, Asst. Atty. Gen., Claude Hodge, Jr., Asst. Atty. Gen., Austin, for appellee.
   McDONALD, Chief Justice.

This is a condemnation case instituted by the State of Texas to condemn for highway purposes 6.147 acres of land, together with an easement across 0.459 of an acre; and an easement across 0.516 of an acre; all out of a 60.25 acre tract owned by defendant. Trial was to a jury which, in answer to special issues, found: 1) The reasonable cash market value of the 6.147 acres taken was $1844.10; 2) The market value of defendants’ land not taken was not decreased in value as a result of the taking of the 6.147 acres. No issues were submitted or requested as to the value of the 0.459 acre or the 0.514 acre easements across defendants’ land. The trial court rendered judgment for the State for the fee simple title to the 6.147 acres, as well as for easements across the 0.459 and 0.514 acre tracts. Judgment was rendered for the defendant for $1844.10 as a full and complete compensation as a result of the suit. The court further found that the State had deposited $6420.10 in the registry of the court, being the amount of the Special Commissioners’ award and that defendant had withdrawn same on December 13, 1962; and entered judgment for the State for $4576.00 (the difference in $1844.10 and the $6420.10 deposited), together with interest at 6% from December 13, 1962 until paid.

Defendant appeals on 14 points, contending :

1) The trial court erred in entering judgment, since defendant denied that jurisdictional prerequisites of the County Court had been complied with, and plaintiff failed to prove the prerequisite jurisdictional facts.
2) The trial court committed fundamental error in rendering judgment for plaintiff for the 0.459 and 0.516 acre easements since no issues were submitted or requested, as to the value of such easements ; and such taking is without compensation to defendants and viola-tive of the Constitutional prohibition against taking of property without compensation.
3) There is no evidence, or insufficient evidence, to sustain the judgment as entered.

Defendants’ 1st contention is that the trial court erred in rendering any judgment (except a judgment of dismissal), since defendants denied that the jurisdictional prerequisite of the County Court had been complied with, and plaintiff failed to prove the prerequisite jurisdictional facts. After the Commissioners made their award, the State deposited such in the registry of the Court, and defendants withdrew the same. After an award had been made by the Commissioners, and the money deposited in the registry of the Court and the landowner has withdrawn the same, he cannot thereafter contend that the taking was unlawful. Therefore, no jurisdictional question is involved. State of Texas v. Jackson, Sup.Ct., 388 S.W.2d 924.

Defendants’ 2nd contention complains of the trial court’s rendering judgment for the State for the 2 easements when no issues as to their value were submitted. Defendants say this is fundamental error and is violative of the Constitutional prohibition against taking of property without compensation. The burden was on defendants to prove the value of the land taken and if dissatisfied with the issues submitted by the court, to request the issues deemed proper. This defendants did not do. State of Texas v. Jackson, supra; State v. South Main Baptist Church, CCA (n. r. e.), 361 S.W.2d 898; Jacobs v. State, CCA (n. w. h.), 384 S.W.2d 438; Rule 279 Texas Rules of Civil Procedure.

Defendants’ 3rd contention is that there is no evidence, or insufficient evidence, to sustain the judgment as entered.

The finding that the 6.147 acres taken were worth $1844.10 is supported by ample evidence. The evidence on the value of this tract ran from $1405 to $8458. We think under the evidence the jury authorized to find the value that they did, and that such finding is not against the preponderance of the evidence. The judgment contains no finding as to the value of the 2 easements, but as noted, it was defendants’ burden to request issues on the value of their property taken.

However the State in its brief indicates the evidence reflects such easements have a value of $175 and that it is willing to pay such amount.

All of defendants’ points and contentions are overruled. The judgment of the trial court is reformed crediting defendants with the amount of $175, and as reformed is affirmed.

Reformed and affirmed.

      . The jurisdictional requirements necessary tó be proved by the State unless jurisdiction or State’s right to condemn admitted by defendant are: 1) Application; 2) Minute of Highway Commission; 3) Order of County Court appointing Special Commissioners; 4) Oath of Commissioners; 5) Notice of hearing issued by them and served on defendant; 6) Award of Commissioners; 7) Objections to award and prayer for trial by jury. See Sec. 84, p. 310, Rayburn, Texas Law of Condemnation.


author: WILSON, Justice.

text:
    Billy Earl LOPER, Appellant, v. Lula ANDREWS, Individually and as Next Friend for Charles Andrews, a Minor, Appellee.
    No. 4373.
    Court of Civil Appeals of Texas. Waco.
    Oct. 21, 1965.
    Rehearing Denied Nov. 18, 1965.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Thos. Bartlett and Jack Welch, Marlin, for appellee.
   WILSON, Justice.

This personal injury action, tried before a jury, resulted in judgment for plaintiff. We affirm.

Appellant groups ten points complaining of admission, under Art. 3737e, Vernon’s Ann.Civ.St., of a paragraph of a private hospital record made by Doctor Swetland, an agent of the hospital, which contained the following language concerning plaintiff: “I have referred him to Dr. Hutchings for examination, and again he finds a papel-ledema of the left optic disc of about 2 diopters. This, he believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure. This is probably attributable to the automobile accident suffered October S, 1963.”

The argument under these points is that no proper predicate was laid as required by Art. 3737e showing the entry was made in the regular course of business or was transmitted as required by that statute; that the entry constituted hearsay; that the entry contained conclusions and statements not shown to be within the personal knowledge of Dr. Hutchings or Dr. Swetland; and that the diagnosis was controversial.

We do not reach these contentions for the reason these objections now asserted were not made in the trial court, and the objection which was actually made does not preserve the points for review.

The admission of the hospital records developed as follows: Plaintiff called Dr. Swetland who testified he examined plaintiff after three other doctors had done so, and the results were in the hospital records. These records included the examination report of Dr. H. O. Smith and Dr. Hutchings. The entire record, Exhibit P-13, consisted of four typed pages. Defendant’s counsel thereupon suggested, “If he can connect up the one he is going to use, it might save calling Dr. Smith.” He then said, “With the exception of one thing, I would agree, and save calling Dr. Smith. I object to this as not being an opinion of the doctor himself. Just this one sentence here. I object to that one sentence; otherwise I don’t have any objection, and it would save calling Dr. Smith.” The sentence referred to is not identified in the record. Plaintiff’s counsel then said, “that is Dr. Hutchings.” Defendant’s counsel answered, “Dr. Hutch-ings, rather. I object because that is the opinion of another doctor.”

In the absence of the jury defendant’s attorney then read to Dr. Swetland the portion of Exhibit P-13 now complained of, establishing that “that sentence includes the opinion of Dr. Hutchings,” and objecting to “that portion” because it “includes the opinion of another doctor not here for cross-examination.” He then stated, “I have no objection to the rest of Exhibit P-13.”

Objections to admissibility of evidence not made in the trial court, where assertion of the grounds would afford that court an opportunity to pass on them, may not be first presented on appeal. Hill v. Baylor, 23 Tex. 261, 263; Coker v. Mitchell, Tex.Civ.App., 269 S.W.2d 950, Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W.2d 626, writ ref. n. r. e. The grounds specified may not be enlarged on appeal to include those not asserted. Bohanan v. Hans, 26 Tex. 445, 452; McCormick and Ray, Texas Law of Evidence, Secs. 22, 26, and cases cited.

Defendant’s counsel waived the laying of a predicate by assuring the trial court: “otherwise I don’t have any objection,” and “I have no objection to the rest of the exhibit.” Missouri Pacific Railroad Company v. Watson, Tex.Civ.App., 346 S.W.2d 640, 641, syl. 1, writ ref. n. r. e.

Complaint is made that the charge improperly permitted recovery by the parent for loss of value of future earnings and services of the minor plaintiff. No objection to this portion of the charge appears in the record presented except as to the quantum of evidence. The deficiencies argued are not preserved as required by Rule 274, Texas Rules of Civil Procedure, and the objections are waived.

Defendant says inclusion of an improper element of recovery in the charge on damages. presents “fundamental error,” obviating necessity for objection in the trial court. An error “which directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State, is fundamental,” as is a showing the court is without jurisdiction of the subject matter. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; See Tex. Emp. Com’n v. International U. of E. R. and M. Wkrs., 163 Tex. 135, 352 S.W.2d 252, 253; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609, 611. The interests contended for by appellant belong exclusively to the litigants in this case and the form of the charge on damages does not constitute “fundamental error.”

Appellant’s other points, including those contending the evidence is insufficient to support recovery for loss of the minor’s future earnings, and that the damages are excessive, have been considered and are overruled.

Affirmed.


author: GREEN, Chief Justice.

text:
    Adolph Edward PRASEK, Appellant, v. W. W. DUDLEY, Appellee.
    No. 122.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    First Rehearing Denied Oct. 21, 1965.
    Second Motion for Rehearing Denied Nov. 18, 1965.

      John H. Holloway and Richard Haynes, Houston, for appellant.
    Finis E. Cowan of Baker, Botts, Shepherd & Coates, Houston, J. J. Duckett, El Campo, for appellee.
   GREEN, Chief Justice.

Appellant Adolph Edward Prasek, plaintiff below, sued appellee W. W. Dudley, defendant below, to recover for personal injuries and property damages sustained in an automobile collision on July 24, 1961, at the intersection of Jackson (Highway 59) and Merchant Streets in El Campo, Wharton County, Texas. The parties will hereafter be designated as in the trial court. Both plaintiff and defendant were volunteer firemen, and it was stipulated at the close of the evidence in the trial court that both parties were, at the time of the accident, driving authorized emergency vehicles and that each was proceeding to a fire in response to an emergency call.

The jury found each party guilty of negligence proximately causing the collision. Based on such verdict, the trial court rendered judgment for the defendant. Plaintiff timely presented his motion for new trial, based in part on jury misconduct. The motion was overruled, and plaintiff has appealed.

The collision occurred about 8:30 o’clock P.M. Defendant was driving east on Jackson Street, a main thoroughfare in El Cam-po, which is also the highway leading from Victoria and points south to Houston. There is evidence that because of the alarm, the traffic lights on Jackson Street had been locked all four ways red by a control switch at the fire house, and defendant testified and the evidence showed that he drove through several red lights at a fast speed as he was proceeding to the fire.

Plaintiff approached and entered the intersection headed south on Merchant Street at a rate of speed variously estimated by witnesses at from 10 to 35 miles per hour. The evidence conflicted on whether he entered on a red or green light. The two cars collided near the center of the intersection, as a result of which plaintiff received serious injuries.

In response to issues submitted, the jury found that defendant (1) turned to right just before collision, but it was not a proximate cause; (2) that he did not fail to turn left just before the collision; (3) that he operated his vehicle at a high, dangerous, and excessive rate of speed, and that it was a proximate cause; (4) that he properly applied his brakes; (5) that he was driving at a greater speed than a person of ordinary prudence would have driven under the circumstances, and that it was a proximate cause; (6) that defendant kept a proper lookout; (7) that defendant failed to slow down as necessary for safety on approaching the intersection, and it was a proximate cause; (8) that defendant did not fail to yield the right of way to plaintiff; (9) that defendant did not discover the perilous position of plaintiff within time to avoid the collision.

The jury found that plaintiff (1) failed to keep a proper lookout, and it was a proximate cause; (2) that he failed to properly apply his brakes, and it was a proximate cause; (3) that he operated his vehicle at a speed which should not have been employed under the circumstances, and it was a proximate cause; (4) that he failed to yield the right of way to defendant, however, no proximate cause issues were submitted; (5) that the traffic light was “red” when plaintiff entered the intersection; (6) that plaintiff failed to slow down as necessary for safety on approaching the red light, and it was a proximate cause and negligence; (7) that he failed to slow down or proceed with caution past the red light, and it was a proximate cause and negligence; (8) and, that plaintiff suffered damages of $14,600.00, and property damage of $800.00.

The jury further found that defendant’s vehicle was equipped with a red light visible under normal atmospheric conditions from a distance of 500 feet to the front of the vehicle; that defendant’s vehicle was equipped with a siren emitting an audible signal which could have been heard by an ordinary person similarly situated as plaintiff; that just before the collision defendant was faced with a sudden emergency, and operated his vehicle accordingly, and that such sudden emergency was not the sole proximate cause of the collision; and, that such collision was not the result of an unavoidable accident.

Plaintiff’s first five points allege error in the trial court’s failure to disregard the jury findings that (1) the plaintiff failed to keep a proper lookout, and proximate cause; (2) he failed to make proper application of his brakes, and proximate cause; (3) he operated his vehicle at an excessive rate of speed under the circumstances, and proximate cause; (4) he did not yield the right of way, and (5) the traffic light facing plaintiff was red as he entered the intersection. His points are based on the proposition that there was no evidence to support such findings, and that they were against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust, and, as to issue No. 33 finding that plaintiff failed to yield the right of way, that no negligence or proximate cause issues were submitted to the jury. Plaintiff’s 15th, 17th, and 21st points complain of error in the court’s instructions on issue 19, inquiring whether defendant failed to yield the right of way, and on issue 33. Point 16 complains of the submission of issue 34, inquiring whether the traffic light was red, or was it green, facing plaintiff as he entered the intersection, and of the succeeding issues conditioned on a finding that the light was red.

Plaintiff testified by deposition that he did not see defendant’s car until it had actually hit him, although the evidence is clear, and the jury found, that defendant was coming noisily down the highway at a fast rate of speed with a red light flashing to the front, and there was nothing between plaintiff and defendant as plaintiff entered the intersection to prevent him seeing and hearing the other car and properly applying his brakes in time to prevent the accident. He testified his eyesight and hearing were good, and that he could see “quite a ways” to his right, the direction from which defendant was coming.

Although plaintiff testified he applied his brakes and slowed down to about 10 miles per hour as he entered the intersection, other eye witnesses testified he never reduced his speed from the time he approached the intersection until the occurrence of the collision. Two witnesses testified to the effect that the light facing plaintiff was red at the time of the collision, although other witnesses gave testimony that it was green. Other testimony, to be discussed later, was introduced to show that the traffic lights on Jackson Street were locked on four way red when the fire alarm was sounded. Whether the rate of speed at which the plaintiff entered the intersection was greater than that at which a man of reasonable prudence in the exercise of ordinary care would have entered under the same or similar circumstances was a fact issue under the testimony to be determined by the jury. The same is true with reference to the matter of proper application of the brakes, proper lookout, and the question of the color of the light facing plaintiff as he entered the intersection.

The right of way issues were submitted under the provisions of Vernon’s Ann.Civ. St., art. 6701d, § 75(a), subdiv. 1, to the effect that upon the immediate approach of an emergency vehicle equipped with at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of 500 feet to the front, and when the driver of every other vehicle shall yield the right of way, etc.

The evidence is abundant that defendant’s car was so equipped, and that the siren was being loudly sounded. Plaintiff’s car was not equipped with a red light or siren. The court’s instructions on these issues copied almost verbatim Art. 6701d, § 20, § 75(a), § 75(a) (1), and § 75(b).. Such submission of the right of way issue under the facts of this case was proper. Watkins v. Goolsby, Tex.Civ.App., 337 S.W.2d 363; Craker v. City Transportation Company of Dallas, Tex.Civ.App., 316 S.W.2d 447, writ ref. n. r. e.

However, since the jury found plaintiff guilty of several other acts of negligence proximately causing the accident, any error as to issue 33 concerning plaintiff failing to yield the right of way would not affect the entry of judgment against plaintiff. Rule 434. Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806. For like reason, it is not necessary for us to determine whether the omitted issues of negligence and proximate cause following special issue no. 33 should be deemed as found by the trial court in such manner as to support the judgment. Rule 279, Texas Rules of Civil Procedure.

Points 1, 2, 3, 4, 5, 15, 16, 17 and 21 are overruled.

Plaintiff’s objections to the submission of the sudden emergency issues become immaterial and fail to show reversible error in view of the jury’s finding that such emergency was not the sole cause of the accident, and because of the specific findings of negligence of the defendant. Stephens v. McCarter, Tex.Civ.App., 355 S.W.2d 93; City Transportation Company of Dallas v. Vatsures, Tex.Civ.App., 278 S.W.2d 373; writ dis.; Williams v. Voight, Tex.Civ.App., 264 S.W.2d 454, writ ref. n. r. e. Because of such findings, the court could not use the answers of the jury on the sudden emergency issue to defeat plaintiff’s cause of action, if any. However, other findings of the jury of contributory negligence and proximate cause were sufficient to prevent plaintiff from securing a favorable judgment, and his points 6, and 19 concerning the submission of sudden emergency issues are overruled.

By his 18th point, plaintiff alleges error in the submission to the jury of the special issue of unavoidable accident. The issue was answered favorably to plaintiff, and he is not justified in making such complaint here. “A party may complain in a reviewing court only of errors that injuriously affect him. He may not complain of errors that are favorable to him.” 4 Tex.Jur.2d, Appeal and Error — Civil, § 763, p. 268. The point is overruled.

Plaintiff’s 13th point reads as follows :

“The Court erred and abused its discretion in admitting the hearsay testimony, conclusions and speculation testimony of the witness, Mr. Turner, that the traffic lights were mechanically locked on four way red at time of the collision, and other testimony relating thereto, over Plaintiff’s objections contained at pages 386 to 390 of the Statement of Facts together with other objections made, all as reflected by the record in this case.”

Marvin Turner, whose job was to remain at the fire station, take fire calls, sound alarms, and operate the switch for the purpose of locking traffic lights on four way red during emergencies, was called by defendant to testify by deposition. Plaintiff objected to his evidence on the grounds that (1) the testimony would be hearsay and immaterial since he could not verify the lights or controlling devices were in proper working order; (2) no predicate to show he could distinguish between sirens on various vehicles so as to say he was still hearing Dudley’s siren at the time he had the switch on; (3) witness testimony is speculative and invades the province of the jury as to fact issue as to color of the light facing plaintiff; (4) that witness, being several blocks away from the scene of the collision, could not have any knowledge of the actual color of the traffic lights during the times involved. The objections were overruled, and plaintiff permitted to take his bills of exception to Turner’s testimony in the absence of the jury. Objections were also made when the testimony was offered in the presence of the jury, and exception taken by plaintiff.

Turner, over such objections, testified to his duties as stated above, and about his knowledge of and experience with the switch and pilot light, the purpose and functions of which were to lock the traffic lights on red as aforesaid during emergencies. He stated that after the fire alarm was given, he took the action necessary to lock all the traffic lights on Highway 59 (Jackson Street) red on all four sides, and left the switch on as long as he heard any sirens on vehicles moving along the highway. He testified that from his position, he could clearly hear the noise made by the sirens on such cars. After all sirens on vehicles moving on Jackson Street had become silent, he operated the switch in such manner as to place the lights back in normal operation.

Defendant further put in evidence Turner’s testimony that from where he was stationed, he could not see the lights and had no knowledge from personal observation that all traffic lights along Jackson Street were on red at the time of the collision; that he did not know whether the switch panel and all operational controls relating to the traffic lights were properly working; that he was about three blocks from the scene of the accident, with windows and doors open and could hear the noises coming from Jackson Street; and that he did not know the color of the light facing plaintiff as he entered the intersection.

The effect of Turner’s testimony was that after sounding the fire alarm and hearing the sirens of emergency vehicles headed toward the fire, he performed his duty of pulling a switch the normal effect of which would result in locking the traffic lights on Jackson Street on red on all four sides, and that after the noise of the emergency vehicles had died down, he released the switch, which would normally, if everything was in mechanically proper working order, place the lights back in normal condition. He did not attempt to tell the jury that the lights actually were red on all four sides at the time of the accident, or that plaintiff entered the intersection on a red light. It is not necessary that he be able to state with scientific certainty that the mechanical processes of the emergency traffic light system were all in perfect operation; his testimony as to the normal effect of his throwing the switch, with his admission that he could not testify, not being on the street to see, what actually happened, would be relevant and material as some evidence that plaintiff’s light was, in fact, red at the time he entered the intersection. 23 Tex.Jur.2d, Evidence, § 124. Other evidence that the four-way lock system was working was provided by the testimony of eye-witnesses Howard and Sarino.

Plaintiff’s point No. 13 is overruled.

By his 7th, 8th, 9th, 10th, 11th, 12th, and 14th points, plaintiff complains of argument of defendant’s counsel in addressing the jury, and says such argument was improper, prejudicial, and inflammatory.

Defense counsel, in speaking of plaintiff’s attorney, made the remark, * * * “In this ease I think you are trying to punish Mr. Dudley for doing his duty as a conscientious fireman and citizen * * * ”, Plaintiff’s objection was sustained, and the trial court instructed the jury to disregard the statement. Error, if any in the argument, was cured by such instruction. Texas Employers’ Insurance Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Younger Brothers, Inc., v. Myers, 159 Tex. 585, 324 S.W.2d 546.

Another remark of same counsel was,

* * * “I can’t believe you would want to saddle Mr. Dudley with $81,-000 on the word of witnesses who fell out of a beer joint that night.” * * *

Plaintiff’s objection was that this was highly prejudicial, and that there was no evidence that any of them had been drinking. Defense counsel, in reply to the objection stated to the court and jury:

* * * “I didn’t say drinking.” * * *

The objection was properly overruled. Several of plaintiff’s witnesses had come out of a cafe where beer was sold when the fire alarm had sounded. The misuse of the words “fell out” was perhaps improper, but no harm can be shown to have been caused plaintiff thereby. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Other remarks made by defense counsel in their jury arguments included within plaintiff’s points of error are:

Mr. Duckett: * * * “Again Mr. Pra-sek made a mistake, in his deposition he said twenty miles an hour, and then told you only five or ten, and it is impossible for me to believe any fireman in a sound mind would be going to a fire in low gear. That is how impossible your case is, Mr. Holloway.”
Mr. Holloway: “I am going to object to him, and I want to ask the Court to ask him to refrain from personal remarks about me or my case, it is not my case, it is highly prejudicial an attack upon me as an officer of the Court for representing this man.”
Mr. Duckett: “We will say Plaintiff’s case.”
Mr. Holloway: “I appreciate that.”

The court made no ruling on the objection. No error is presented by the point.

Mr. Cowan (for defendant) : * * * “Whether or not this case —the plaintiffs have presented a case that is legitimate or one based on inaccuracies and false allegations, let’s think about the testimony of the witnesses and see which testimony makes sense, which testimony seems believable, and which testimony doesn’t.”
Mr. Holloway: “I would like to make a motion to Court. We object to Counsel’s statement about the facts and allegations in the case as being false, it is direct reference to a statement of fact that is not based upon any evidence in the case, we ask the Court to instruct the Jury to disregard such statement, it is a reflection both on myself for representing this man as an officer of the Court, and it is a direct reflection on plaintiff’s character.”
The Court: “Overruled.”
Mr. Cowan: “We are not reflecting upon the Plaintiff’s character. Mr. Prasek did not put this case together, we have told you and we are telling you again we think Mr. Prasek is a good man and simply made a serious mistake * * * ”
Mr. Holloway: “Your Honor, we object to the statement of Counsel that Mr. Prasek had nothing to do putting the case together, and pointing to Counsel as being the person directly responsible. We consider it an attack * * * ”
The Court: “Sustained, and I direct you, Ladies and Gentlemen of the Jury, not to consider it in the trial of the case.” * * *

We find no error here. As to the first part, counsel was merely expressing his views of the testimony, which is one of the purposes of argument. The court’s action in instructing the jury not to consider the next statement of defense counsel eliminated error, if any, as to that remark. Younger Brothers, Inc. v. Myers, supra; Aultman v. Dallas Railway and Terminal Co., supra; Greeson v. Texas & Pacific Railway Company, Tex.Civ.App., 310 S.W.2d 615, writ ref. n. r. e.

Again, Mr. Duckett (for defense) : “The only sign of any chance I can see, if they actually had a green light, or Mr. Prasek had a green light. If he had a green light, it wasn’t the fault of Mr. Dudley, it was the city’s fault.
Mr. Holloway: “I object to that, Your Honor, it is evidence outside the record, and I ask the Jury be instructed to disregard his last statement.”
The Court: “Overrule the objection.”
Mr. Duckett: * * * “And if it is the City’s fault, you have the wrong boy in Court, and in spite of Mr. Holloway’s objections during the time I was talking, I will gladly join you, Mr. Holloway, in a suit against the city.”
Mr. Holloway: “I object to the last statement of Counsel.”
The Court: “Sustain the objection.”
Mr. Holloway: “And ask the Jury be instructed to disregard it.”
The Court: “You are so instructed.”

The first part of this argument was a fair deduction from Turner’s testimony that it was his duty to pull the switch to lock all lights on Jackson Street four way red. In the event the mechanism failed, this argument implied that the fault would not be Dudley’s who testified he knew of the rule requiring the switch to be on during emergencies, and relied on it, but those who had charge of the mechanism. No error appears. If there were error in the last statement, it was cured by the court’s instruction. Younger Brothers, Inc. v. Myers, supra.

Plaintiff took objection to a number of other remarks of defense counsel, which are covered by points 10, 11, 12, and 14. In the interests of brevity, we state that we have carefully studied the statements, arguments, and authorities contained and cited in the briefs of both parties, and have read the complete jury arguments of defense counsel filed with us. We have found no error presented by plaintiff’s points addressed to the arguments of such a nature as to have probably influenced the jury in reaching a verdict, nor do we find that the nature of the arguments complained of was such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., Tex.Sup.Ct., supra; Younger Brothers, Inc. v. Myers, Tex.Sup.Ct., supra; Greeson v. Texas & Pacific Railway Company, supra. All of said points are overruled.

Plaintiff’s 22nd, 23rd, and 24th points concern alleged jury misconduct resulting in injury to plaintiff’s cause, in three particulars: (1) that jurors from El Campo gave testimony in the jury room during the deliberations concerning the manner in which the traffic lights in El Campo were mechanically operated during emergencies to support Turner’s testimony, which information was given during the time the jurors were deliberating on all of the issues of plaintiff’s contributory negligence, and that such discussion influenced juror McVey in his vote on issues of contributory negligence; (2) that El Campo jurors stated in the jury room from their personal knowledge that the witnesses who testified concerning the color of the traffic light when plaintiff entered the intersection would have been able to see, from the positions they testified they were in, the color of the traffic light; (3) the jurors agreed that since both parties were guilty of negligence, plaintiff’s damages should be reduced as a penalty for his negligence.

Only two jurors were placed on the witness stand at the hearing. Juror McVey testified that when the jury reached issue No. 34, inquiring whether the light was red or green, he was undecided as to whether to answer “red” or “green”. Prior to the vote on the issue, according to McVey some jurors from El Campo volunteered information of their personal knowledge as to the working of these lights during an emergency fire call in order to bolster Turner’s testimony, and McVey said that such statements influenced his vote. Mc-Vey did not say specifically what was stated by any of the other jurors, saying only in general terms that information was furnished about how the lights were operated during emergencies. McVey’s testimony was inconsistent as to at what point in the deliberations the voluntary statements of the El Campo jurors began. When questioned by plaintiff’s attorney, he stated as follows:

“Q Mr. McVey, 25 was the lookout question, now I understand from what you just told Counsel the red light in all probability came up during that issue, wasn’t that right ?
A That is right.
Q That was the first issue relating to Mr. Prasek. Now, it is also your testimony today that your best recollection the Jury could have been discussing the red light situation in connection with his lookout because — if he had a green light he would have a different lookout than with a red light?
A Yes, sir.
Q So your recollection is that is where the jury started discussions with the El Campo about what they knew about the light?
A That’s right.
Q You discussed it in connection with other issues, and it culminated with the issue on the red light?
“A Certainly.”

However, on being questioned by defense counsel, he testified:

Mr. Cowan: “Is it your best recollection, however, understanding nobody made a record of what you said, but is it your best understanding and recollection all the discussions with reference to the experience of the El Campo jurors with reference to the light locked on four way red did take place with reference to Special Issue 34?
Mr. Holloway: “I object to leading, he has him on voir dire, but at the same time his questions are leading.
The Court: “Overruled.
“A Yes, sir.
Mr. Cowan: “Now, at the time you answered 34, had you answered all of the previous issues down to there?
“A Yes, sir.

Plaintiff also placed juror Brost on the stand. A definite conflict exists between the testimony of these two jurors concerning what statements were made by the El Campo jurors on the proposition raised by plaintiffs first contention, stated above. On this point Brost testified:

“Q Do you recall the El Campo jurors telling anyone there in the jury room about their knowledge concerning this traffic light?
A Yes, in during cases of emergency the lights were supposed to be locked on red, in that respect.
* * *
Q All right. Also in that connection, did you hear the El Campo jurors tell the panel in the presence of all the jurors as to how the lights mechanically operated in that connection, that they were four way reds, and when turned on and under what conditions they were four way red?
A That was brought out at the trial, that wouldn’t be particularly the El Campo jurors.
Q Did you confirm that fact with the El Campo jurors?
A I wouldn’t think it would be confirmed with the El Campo jurors.”

Thus, according to Brost, the only statement made by any juror from El Campo from his personal knowledge as to how the lights were mechanically operated during a fire emergency was that they were supposed to be locked on red. This was not in contest, for plaintiff Prasek testified, as shown on page 267, statement of facts, as follows:

“Q Now, did you know Mr. Marvin Turner ?
A Yes, sir.
Q Was it or not Mr. Turner’s job with the Fire Department upon the sounding of an emergency call to throw a switch locking the lights on red on all four sides?”
A Yes, sir.”

Several of plaintiff’s witnesses, including Johnny Macha and William Kossler, gave similar testimony.

Plaintiff shows no injury to himself by the only statement made by the jurors concerning the emergency locking of the lights, according to juror Brost, when it coincided almost exactly with plaintiff’s own testimony, and the testimony of plaintiff’s witnesses. Rule 327, T.R.C.P.

Juror McVey’s testimony is inconsistent and contradictory within itself as to whether the jurors had already answered all issues preceding issue 34 when the discussion by the El Campo jurors first occurred. Thus, this was an issue of fact to he determined by the trial judge. If the jurors had already answered the preceding issues, as McVey said at one stage of his testimony, they had found the plaintiff guilty of negligence proximately causing the accident in several particulars, i. e., failure to keep a proper look-out, failure to properly apply his brakes, excessive rate of speed under the circumstances, any one of which would have prevented plaintiff from securing a favorable judgment. Under such circumstances, no injury can be shown to have been suffered by plaintiff, and the misconduct of the jury does not present reversible error. Rule 327, T.R. C.P.; State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217; Roy L. Jones Truck Line v. Johnson, Tex.Civ.App., 225 S.W.2d 888, 895, writ ref. n. r. e.; McClenahan v. Byrum, Tex.Civ.App., 307 S.W.2d 117; McDonald, Texas Civil Practice, Vol. 3, § 14.16, page 1254.

The discrepancy between the testimony of the two jurors as to what was said also created an issue of fact as to whether the misconduct occurred as testified by McVey, or as testified to by Brost. In the absence of express findings of fact and conclusions of law, it is presumed on appeal that the trial court found all controverted facts in support of the judgment. Brawley v. Bowen, Tex.Sup.Ct., 387 S.W.2d 383; Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546.

As to the second contention of misconduct juror Brost testified that one or more of the El Campo jurors stated from personal knowledge that persons standing in the locations that the eye witnesses who testified to the color of the light said they were standing would have been able from such locations to determine the color of the light facing both parties as they entered the intersection. Brost further stated that he did not recollect at what stage of the jury deliberation these remarks were made. McVey did not give any testimony of this matter.

On the trial, four witnesses in addition to plaintiff testified that the light facing plaintiff was green as he entered the intersection. These witnesses placed themselves on the sidewalk of Jackson Street at various distances from 90 to 120 feet from the intersection and, as shown by the transcript of defense jury argument, defense attorneys argued strenuously to the jury that from the spots where plaintiff’s witnesses were standing, they would have been physically unable to see the color of the light facing Prasek as he entered the intersection.

Both of defendant’s eye witnesses who testified concerning the color of the light at the time of the collision placed themselves at the corner of the intersection where the collision took place, where no question could be raised as to whether they could see two sides of the light as they testified. Nowhere in the record does there appear any indication of any contention that they could not do so.

It therefore appears clear to us that these remarks made by El Campo jurors, although error, could not have caused injury to plaintiff, but that on the other hand, were more likely to be helpful to his cause. It was not the type of misconduct to make it reasonably appear that considering the evidence both on the hearing of the motion for new trial and the trial of the case, and from the record as a whole, probable injury resulted to plaintiff, or that an improper judgment was rendered as a result thereof. Rule 327 and 434; Allan v. Materials Transportation Company, Tex.Civ.App., 372 S.W.2d 744. Also, it does not appear that this information was given pri- or to the time the jurors had answered the issues of plaintiff’s contributory negligence which in the court’s charge were prior to the issue of the color of the light. Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S.W.2d 646.

Plaintiff complains of jury misconduct also because both jurors who testified stated that in answering the damage issue, the jury took into consideration the fact that plaintiff, as well as defendant, was guilty of negligence proximately causing the accident, and that the damage figure was accordingly materially reduced as a penalty to plaintiff for his negligence. Since the damage issue became immaterial upon the answering the liability issues in the manner they were answered, misconduct, if any relating to the damage issue could not have caused injury to plaintiff, nor could it have led to the entry of an improper judgment. Rules 327, 434, T.R.C.P.; Navar v. State, Tex.Civ.App., 344 S.W.2d 188.

Points Nos. 22, 23, and 24 alleging reversible error as a result of jury misconduct, are overruled.

The trial court did not commit error in refusing plaintiff’s request to file findings of facts and conclusions of law relating to the hearing on plaintiff’s motion for new trial on alleged jury misconduct. Warner v. Plummer, Tex.Civ.App., 355 S.W.2d 817, writ ref. n. r. e.; Eichelberger v. Rankin, Tex.Civ.App., 278 S.W.2d 278, writ ref. n. r. e. Plaintiff’s 20th point, contending that it did, is overruled.

Judgment affirmed.

ON MOTION FOR REHEARING

Appellant, in connection with his motion for rehearing, has filed a 43 page instrument styled “Appellant’s Exceptions to Insufficiency of Fact Findings, and Motion under Rule 453 for Conclusions of Law and Findings of Fact on All Points of Error.” Appellant, in addition to Rule 453, also invokes Rule 455, Texas Rules of Civil Procedure, and asks that we make certain further supplemental findings upon the points concerning the jury’s findings of contributory negligence of appellant, of the admissibility of the testimony of the witness Turner, of the jury arguments of counsel for appellee, and of the alleged jury misconduct.

In our original opinion, we passed on and stated our findings as to all points of error contained in appellant’s brief. We expressly found that the findings of the jury concerning the contributory negligence of appellant, together with the accompanying issues of proximate cause, were in each instance supported, both legally and factually, by the evidence. While we did not cite in re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we were guided by that opinion in determining the factual sufficiency of the evidence. We adopt as our own all of the jury findings that we held to be material to the judgment of the trial court.

We discussed the testimony of the witness Turner, and expressly announced our findings concerning such evidence when viewed as a whole, and found that no reversible error was committed by the court in permitting its introduction.

We considered and ruled on every point concerning alleged error in the jury arguments of counsel for appellee. The fact that we did not copy the several pages of such argument that appellant would have us place in our opinion does not deprive appellant of his opportunity of assigning any alleged error of this Court in a petition for writ of error.

We passed on each point of appellant’s concerning jury misconduct, and expressly found that, in view of the trial court’s order overruling the motion for new trial, no reversible error was shown. Appellant insists that we should copy in further detail the testimony given by the two jurors in the hearing on his motion for new trial, and make findings conflicting with those contained in our opinion.

Appellant also asks that we recite in our opinion much testimony of plaintiff and his witnesses which conflict with conclusions made in our original opinion, and some of which relate to matters claimed to he reflected in undisputed testimony. It is not the duty of the Court of Civil Appeals, on a motion for additional findings of fact, to find facts that are undisputed, or recite evidence or make legal conclusions which may conflict with findings made. Nowlin v. Hall, 97 Tex. 441, 79 S.W. 806; Houston & T. C. Ry. Co. v. Davis, Tex.Civ.App., 32 S.W. 163, writ ref., 88 Tex. 593, 32 S.W. 510; McGill v. Castleberry, Tex.Civ.App., 111 S.W. 662, writ ref.; Wisegarver v. Yinger, Tex.Civ.App., 128 S.W. 1190, writ ref.; Order of United Commercial Travelers of America v. Roth, Tex.Civ.App., 159 S.W. 176; O’Fiel v. First Nat. Bank of Beaumont, Texas, Tex.Civ.App., 152 S.W.2d 475, writ dis. con. judg.; Gregory v. City of Garland, Tex.Civ.App., 333 S.W.2d 869, writ ref., n. r. e.; Thaxton v. Reed, Tex.Civ.App., 339 S.W.2d 241, writ ref., n. r. e.

While many of these decisions were made years prior to the adoption of the present Rules of Civil Procedure, they in such instances were based on statutes very similar to our Rules 453 and 455 as shown in such opinions.

In Nowlin v. Hall, supra, the Supreme Court, in discussing the statutes then in effect, similar to our Rules of Civil Procedure 453 and 455, said:

“ ‘The conclusions of fact,’ which it is the duty of the Court of Civil Appeals to file in a proper case, does not mean the conclusions made by every issue raised by the evidence upon the trial, but the conclusions upon the issuable facts, made by the pleading and evidence. For example, let us take the ordinary case of a suit for damages for personal injuries, in which the plaintiff pleads that he has been injured, that his injuries were caused by the negligence of the defendant, and alleges his damages, and in which the defendant pleads the general issue and contributory negligence. A judgment is rendered for plaintiff, which is affirmed upon appeal. It seems to us that when the Court of Civil Appeals finds that there was negligence on part of the defendant, as alleged in the petition, and no contributory negligence on part of plaintiff, and that the amount of damages assessed by the jury is sustained by the evidence, they have announced every conclusion of fact which is required of them under the law.”

The Court then proceeds to set out the points upon which the Court of Civil Appeals were requested to file its conclusions, and states:

“Some of these matters are shown by the undisputed evidence in the case, and some are found by the verdict which the court declined to set aside. Besides, these questions seem to be more in the nature of a cross-examination than of a request to file conclusions- of fact. We think the court did not err in refusing to answer them.”

We here repeat and confirm the findings and conclusions stated in our original opinion. We find that the evidence supports the jury’s findings of contributory negligence of appellant proximately causing the accident in question, as held in our original opinion. We find that the trial court did not err in overruling appellant’s motion for new trial due to alleged jury misconduct. We find no reversible error in the admission of Turner’s testimony, nor in connection with any of appellant’s points concerning jury argument. Other than that, appellant’s request for supplemental findings and conclusions is denied.

Appellant’s request for oral argument on his motion for rehearing is overruled.

Appellant’s motion for rehearing is overruled.