author: UONNER, O. J.

text:
    GULF, C. & S. F. RY. CO. v. SULLIVAN et al.
    (No. 8456.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 4, 1916.)
    1. Abatement and Eevival &wkey;s54^-AcTiONS eoe Personal Injuries — Injuries Eesult-ing in Death.
    Though under the common law, actions for personal injuries abated on the death of the injured person, yet by specific provision of Eev. St. 1911, art. 5686, the action of an injured person whose injuries do not result in death survives for the benefit of his heirs or legal representatives.
    [Ed. Note. — For other cases, see Abatement and Eevival, Cent. Dig. §§ 255-258, 261-270; Dec.' Dig. &wkey;>54.]
    2. Abatement and Eevival <&wkey;75(l) — Cause of Death — Actions on Injuries — Questions for Jury.
    In an action by a pedestrian who died before trial, for injuries when struck by railway cars, evidence held to raise a jury question whether his injuries resulted in death or whether his death was from other causes, so as to permit revival under Eev. St. 1911, art. 5686, providing for revival of actions in the personal repres’en-tatives of persons whose deaths do not result from injuries received.
    [Ed. Note. — For other cases, see Abatement and'Eevival, Cent. Dig. §§ 441, 445-465, 467-473; Dee. Dig. &wkey;75(l).J
    3. Appeal and Error <&wkey;1048(2) — Prejudicial Error — Opinion Evidence.
    It was prejudicial to permit plaintiff’s brother, who was not a physician, to testify that after the accident plaintiff recovered and was in perfect health, such testimony being competent only from an expert witness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4140; Dec. Dig. &wkey;>1048(2).]
    4. Abatement and Eevival <&wkey;75(l) — Injuries Eesulting in Death — Question for Jury.
    On death of plaintiff suing for personal injuries, and petition of his parents to continue the action, it was defendant’s right to have the jury instructed that, on the issue whether death resulted from the injuries, proximate cause, is not necessarily that nearest in time to the result, and that although deceased after partial recovery fell and further injured himself, if the efficient cause of his death was the injury by the cars, there could be no recovery.
    [Ed. Note. — For other cases, see Abatement and Eevival, Cent. Dig. §§ 441, 445-465, 467-473; Dee. Dig. <&wkey;75(l).]
    5. Eailroads &wkey;>350(7) — Crossing Accidents —Question for Jury.
    Evidence held to present a jury question whether one injured by railway cars received due warning of their approach,
    [Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1161; Dec. Dig. &wkey;350(7).]
    6. Eailroads &wkey;^350(13) — Injuries to Person — Contributory Negligence — Question for Jury.
    Evidence held to present a question for the jury whether a pedestrian injured by railway cars was negligent.
    [Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13)J
    7. Negligence <&wkey;141(3) — Contributory Negligence — Instructions.
    Defendant has the right, on request, to have an affirmative presentation of facts well pleaded, and relied on by him in support of plea of contributory negligence, if the evidence fairly supports an inference of negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 384; Dec. Dig. <&wkey;>141(3).]
    8. Trial <&wkey;191(8) — Instructions—Assumption as to Facts.
    In' a pedestrian’s action for injuries when struck by railway cars, instruction," assuming that as a matter of law, if he attempted to cross the tracks without looking or listening and after warning, he was negligent, was' properly refused, when he testified that he did look.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 430; Dec. Dig. <&wkey;>191(8).]
    9. Eailroads <@^351(9) — Crossing Accidents — Instructions.
    In a pedestrian’s action for injuries when struck by railway cars, a charge that if the railway had no watchman on the cars and gave no signal by bell or whistle it was liable, even though it had exercised ordinary care in other respects, and even though the plaintiff adequately warned of the.danger in crossing the track, was erroneous.
    [Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1201% ; Dec. Dig. &wkey;351(9).] •
    10. Witnesses <@^394^-Impeachment — Corroboration — Evidence—Admissibility.
    Where on the third trial of a case one party impeached the witness by showing that on a former trial he had testified to facts in conflict with his testimony on the third trial, it was error to permit, in corroboration, a showing that on another former trial he testified as he did on the third trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259; Dee. Dig'. <@^394.J
    Appeal from District Court, Denton County; C. F. Spencer, Judge:
    Action by Lloyd Sullivan, by bis next friend, against the Gulf, Colorado & Santa FS Eailway Company. On plaintiff’s death, on the petition of G. W. Sullivan and wife, his parents, they were permitted to continue the suit. Judgment for plaintiffs, and defendant appeals.
    Eeversed and remanded.

      Lee, Lomax & Smith, of Ft. Worth, and R. H. Hopkins, of Denton, for appellant. Owsley & Owsley, of Denton, and J. W. Koons, of Sanger, for appellees.
   UONNER, O. J.

This case has1 been before us on two former appeals. See G., C. & S. F. Ry. Co. v. Sullivan, 168 S. W. 473, and G., C. & S. F. Ry. Co. v. Sullivan, 178 S. W. 615. The suit was originally brought by Lloyd Suliivan, through a next friend, to recover of appellant damages for pers'onal injuries sustained by him at Sanger, Tex., on May 19, 1913, as a result of being run over by a car attached to one of defendant’s engines engaged in switching at that place. After the reversal of the judgment in the second appeal, to wit, on December 23, 1914, Lloyd Sullivan died, and the present ap-pellees, G. W. and Lillie Sullivan, parents of the deceased, filed an amended petition, setting up the circumstances of the injury, alleging negligence,- and further specifically charging that the injuries so received by their son did not- result in his death, and that the cause of action in Lloyd Sullivan’s' favor, therefore, survived to them. Upon the trial on this amended petition, on September 9, 1915, a verdict was returned and a judgment entered in favor 'of appellees for the sum of $6,500, from which judgment this appeal has been prosecuted.

The deceased, Lloyd Sullivan, was injured, as alleged, while going along a pathway over which numerous citizens of the town of Sanger passed to and fro across- a switch track of appellant’s, by a backing train on May 19, 1913. On the first trial the cause was submitted upon the sole issue then presented of injury to the deceased after his perilous position had been discovered by the operatives of the train. On the appeal from the judgment which followed the cause was reversed and remanded, on the ground that the evidence failed to sustain the verdict and judgment on the issue of discovered peril, as will be more fully shown by a reference to our opinion on that appeal. See 168 S. W. 473. On the second trial, as well also as upon the last, the cause was submitted upon allegations of negligence on the part of the operatives of the train in failing to give warning of its approach, and of contributory negligence on the part, of the deceased, which was alleged by the appellant company. On the second appeal the verdict and judgment was again reversed for a number of -errors particularly specified in our opinion, and we now have, as stated, an appeal from the judgment in favor-of the present appellees.

A reference to our former opinions will disclose fully the circumstances of the case. But we should, perhaps, here restate the circumstances for the sake of clearness. The injury to Lloyd Sullivan was inflicted in the town of Sanger in Denton county. Appellant’s railway extends through the town in the direction of north and south. Its depot is on the west side of its main track; on the west side of the depot is what is termed a house track, which extends in a northerly direction some 250 or 300 feet where. it curves to the left or west and continues to a mill and some elevators. Immediately north of the depot is a public road or street. North of the depot and between the main line and house track, approximately 150 or 175 feet, is situated a pumphouse, to which people from the northwestern part of the city frequently and constantly resorted over and across said house track for the purpose of getting water. A few feet north and a little west of the pumphouse, say some 10 or 15 feet, is situated a coal bin. ' This coal bin is some 6 feet from the east line of the house track. Immediately opposite the coal bin and across the house track is situated a gate leading into appellant’s stock pens. The south line of the stock pens, if extended across the switch track to the coal bin, would bisect the coal bin. The passage of citizens to the pumphouse, as stated, resulted in a well-defined, frequently traveled path or roadway leading from the pumphouse in a northwesterly direction. This pathway passed the northeast corner of the coal bin, and, extending in a northwesterly direction, entered upon the house track about midway of-the stock pens, this point, as we estimate, being some 50 or 60 feet north of the south line of the stock pens and some 25 or 30 feet from northeast corner of the coal bin, and some 250 or 260 feet north of the depot. This pathway, after entering upon the house track, continues in its northwesterly direction on and by the northeast corner of the stock pens. On the day in question it was shown that a person by the name of June Teacle had some mules in the stock pens for shipment, and that a freight car had been spotted in front of the stock pens for the purpose, of receiving them; that Lloyd Sullivan left appellant’s depot from a door in its east side, and from thence, as he testified, traveled north until he came to the road mentioned. He then found, as he stated, that a train of cars on the switch track blocked the roadway, and he therefore continued his walk until he arrived at the coal bin where he stopped and leaned up against its west wall about 6 feet south of its northwest corner. At this point Ll'oyd Sullivan must have been within 6 feet of the house track. As he testified, he then looked to the south along the house track, and saw the train or the engine, but- the evidence leaves it somewhat uncertain which, down about the depot. After looking south, according to his testimony, he then turned in the direction of the pathway, and proceeded to and along it just north of the standing stock car until he arrived at the center of the track, at which point June Teacle,-who, together with a colored helper by the name of Joe Warren, was standing upon the stockyards platform, holloed to him to go back; that he attempted to do so, but was caught by the car before he could get away and his right leg run oyer and crushed. Other circumstances will be stated from time to time as we may deem necessary in illustration of our rulings.

The appellees alleged the facts we have stated, and charged that appellant’s servants, operatives of the switch train, were negligent in suddenly approaching without blowing a whistle or ringing the bell, or otherwise giving warning. These allegations the defendant denied, and alleged in turn that Lloyd Sullivan was guilty of contributory negligence in attempting to cross the switch track at the time and under the circumstances he did. Appellant further alleged that one of its switchmen, named J. C. McGuire, was, at the time of the accident, at or about the pumphouse for the purpose of giving signals to the operatives of the locomotive backing the train, and that he observed Lloyd Sullivan approaching the track and holloed to him, warning him against doing so, at the same time running towards Lloyd Sullivan in the effort to catch and stop him, which, as McGuire testified, he almost, but not quite, succeeded in doing. The verdict of the jury upon all issues was in ap-pellees’ favor.

Addressing ourselves to the questions and related questions in the order of importance, rather than in the order of presentation, we will first notice the questions presented under appellant’s seventh assignment of error.

Under the common law, actions for personal injuries abated upon the death of the injured person, but we have a statute which so alters the rule as that such action, not resulting in death, survives the death of the injured party for the benefit of his heirs or legal representatives. See Revised Statutes 1911, art. 56S6. It was under the operation of this article alone that appellees could have hope of a recovery, for it is undisputed that Lloyd Sullivan was an afflicted dependent, because of which the father and mother were without right of recovery on account of loss in wages or other contribution. It is also undisputed that Lloyd Sullivan died as a result of abscesses which formed upon the bone of the injured leg, the leg having been amputated soon after the injury by the ear. But the controverted issue was whether the bone abscesses were caused by the injury inflicted by the railway company in May, 1913, or by a fall from a wheel chair in May, 1914. On the second trial in September, 1914, while the suit was being prosecuted in the name of Lloyd Sullivan, the plaintiff’s petition contained the following allegation:

“That by reason of the injuries so inflicted upon the plaintiff by the carelessness and negligence of the defendant, its agents, servants, and employés aforesaid, the plaintiff was confined to his bed for a period of two months, and had to have his leg amputated three times, and the plaintiff was thereby rendered a hopeless and helpless cripple for life, and the stump of his leg has never healed, and he is still suffering therefrom, and has been compelled to have several surgical operations performed thereon, and has ever since, by reason thereof, suffered intense pain and mental anguish.”

This petition was sworn to by the appellee, G. W. Sullivan, and his testimony upon that trial, as also the testimony of the other ap-pellee Mrs. Lillie Sullivan and of the attending physician, who was a relative, Dr. Rice, all supported the allegations so quoted. That trial resulted in a verdict and judgment-in favor of Lloyd Sullivan for ,$6,500. After Lloyd Sullivan’s death, appellees presented an amended petition, upon which the last trial proceeded, and in which, after describing the injuries to Lloyd Sullivan, etc., it was further charged:

“That the injury so inflicted upon the said Lloyd Sullivan as aforesaid, was one not resulting in death, and he died from another cause. * * * That the plaintiff George W. Sullivan is the father of the said Lloyd Sullivan, deceased, and that the plaintiff Lillie Sullivan is his mother, and the said Lloyd Sullivan died without issue, and the plaintiffs are his sole heirs at law.”

The testimony of appellees and of Dr. Rice on the last trial also supported the amended allegations, and appellant insists under one of its assignments that the verdict and judgment, supported by sources so discredited and upon witnesses who in giving their testimony are so manifestly influenced and controlled by what the immediate necessities of the case demand, should not be permitted to stand. On the last trial it was shown by a number of witnesses that in May, 1914, Lloyd Sullivan had a fall from a wheel chair, with which he had been provided, and which at the time and later seemed to cause him very much pain, and which, as indicated by the testimony of Dr. Rice and also by Dr. Sullivan, might have caused the abscesses from which Lloyd Sullivan died. On said second trial appellee Mrs. Lillie Sullivan, in answer to a question, testified:

“Yes; we had a rolling chair for him, and then his limb began to pain him and, rise, and he got so he couldn’t go in it any longer. Q. When was it that the limb began to pain him and rise? A. In February the first time. Q. Of this year (meaning 1914) ? A. Of this year; yes, sir. Q. Now, how has he been since that? A. Well, from February to May he didn’t suffer continuously, but just maybe a few days and at night, and maybe a few nights at a time, but after about the 20th of Majj of this year he hasn’t seen a well minute; he has suffered constantly ever since the 20th of May.”

On 'the last trial she thus explains the testimony just quoted:

“Will say I made that statement that the trouble began in February, but I never had been on the witness stand before, and I was nervous and confused and worried and grieved and told Mr. - (one of her counsel) after I got off the stand that I had madei a mistake. Yes; I made those answers, but I told Mr. - right away after I went off the stand, and I told him about it, and Ee said it would not be necessary for me to go back on the stand again, that it was not material. As to my condition at the time I told you that I had made a mistake and wanted to correct it, will say I am naturally nervous, and when anything is mentioned about my poor boy it is almost more than I can stand —we tried so hard to save him. Yes; I am nervous and broken down now.”

We do not find that this explanation was corroborated by the testimony of her counsel. Appellee G. W. Sullivan, on the last trial, testified, among other things:

“After I fixed that rolling chair for him he was improving and seemed to be in good health. As to whether or not his leg had recovered, will say it was all healed up, and we used no bandages nor nothing on it at all. It healed all right. To look all right; it looked to be sound and well. No; he did not suffer any from it then. * * * Yes; there was something happened, to him after that. He turned his chair over; that was some time in May, 1914, that he turned his chair over. * * • When I got there they had the wagon off of him and he was sitting down on the ground there with both hands around his leg like this (indicating, holding leg with both hands), gripping his leg, and I asked him if he was hurt, and he said that he was. * * * I don’t believe he was ever out on his chair any more after that.”

This witness manifested considerable hesitation in identifying his signature to the verified petition upon which the second trial proceeded. He testified:

“As to whether I made affidavit to that petition which contains the following allegations (the allegations from the petition upon which the second trial proceeded and hereinbefoi'e quoted), will say I don’t remember. As to whether I did not make affidavit in the petition that this case was tried on and appealed, that the stump of Lloyd Sullivan’s leg had never healed, will say I don’t remember. Yes; I remember swearing to the petition. Yes; I remember holding up my right hand and solemnly swearing the allegations in that petition were ' true. As to whether I swore to it without knowing that was alleged, will say I signed it because they asked me to, and I thought it was all right. As to whether I signed it and swore to it without knowing what was in the petition, or whether the allegations in it were true, or not, will say, of course, I didn’t know it all. As to whether I didn’t know about those allegations, will say I don’t remember about it. No. I don’t know anything about that. I know I never read the petition. * * * Certainly, the petition which you say contains 10 pages, 21 paragraphs, was not written by me; it was written by my lawyers.”

He further testified that the petition had been signed at the instance of his attorneys, and that he signed it to the best of his “knowledge and belief,” and that he was “not a lawyer.” He further testified that this was his first lawsuit, and he depended upon his counsel; that they told him to “swear to it, and he swore to it.”

Dr. Rice’s testimony upon the last trial is too lengthy to set out. It is perhaps susceptible, however, of the construction that when he testified upon the second trial he had not had his attention definitely called to the second injury of Lloyd Sullivan’s injured limb in May, 1914. He testified to the effect that in the absence of a history of such injury, he would yet be inclined to the opinion that Lloyd Sullivan’s death was caused by the original injury, and that in testifying, if he did so, upon the second trial, to the effect that the abscesses then shown were a probable result of the original injury, he meant that the original injury was indirectly so.

It cannot be said that this change of base on the part of appellees is calculated to create a favorable impression; and, if the verdict and judgment rested alone upon the testimony of appellees, we might feel inclined to support appellant’s contention relating to the subject. For on the second trial the evidence that Lloyd Sullivan’s injury continued to inflict pain was undoubtedly material on the issue of the amount of damages to be awarded, but otherwise than as material in the way of augmenting damages, the question was immaterial, and the jury may have thought that -the particular issue upon which the case was made to turn upon the last trial was only incidentally in mind of the witnesses, and not emphasized by counsel, and therefore may- have credited the explanations given by appellees. Moreover, upon the last trial Dr. Sullivan for the first time testified. While it seems that he was distantly related to one of the appellees, G. W. Sullivan, who was the doctor’s great-uncle, we find nothing to cast suspicion upon his testimony, and he testified to the effect that he had seen and observed Lloyd Sullivan after he had been first discharged by Dr. Rice, about a month and a half after the original injury, and that he had then apparently recovered from the effects of the wounds caused by the car “as far as a man could that had his leg off.” He further testified that:

“The condition of his health was good as far as I could see after he recovered as I say.”

He also testified that in June, 1914, he had been called in to see Lloyd Sullivan, and that:

“My diagnosis of it was that he had an abscess, and it was my opinion at that time that he had bruised it in some way — bruised the stump— • * Lloyd Sullivan is dead; he died along about Christmas, I believe the 23d of December, 1914. I believe his death was caused by septic troubles — septicaemia or absorption from that abscess. In my opinion the abscesses were caused by a bruise received at some time subsequent to the accident.”

He further testified that:

“If the railroad injury had left septic poisoning, or an injury to the bone that would have produced it, in my opinion it would not have taken this length of time to develop. I think it would have come in a very short while. When I first formed my opinion that some injury had intervened and caused it, I did not have any history about the subsequent injury at all. Nobody had told me that he had received an injury or bruise when I examined him — I hadn’t been told that at all.”

A Mrs. Smith', sister of appellee Mrs. Lillie Sullivan, for the first time also testified, to the effect that:

After Lloyd Sullivan had returned home from the sanitarium (about a month after the original injury), “he appeared to be perfectly well after he got out. I examined Ms limb after he got out. It appeared to be well. I do not think he suffered any after he got out after he went to going around in his wheel chair. He never complained. After lie got to going around in his chair, his general appearance and health seemed to me to be better. * * * He was never able to be out any more after he fell and hurt that limb.”

A Mr. T. S. Wheeler testified to the effect:

That he had been living at Sanger since 1887 and knew the deceased in his lifetime, and remembered the occasion of his being hurt on the railroad in May, 1913; that he knew “that he recovered and got out after receiving that injury; I seen him in town after that with his chair, riding over town. Sometimes I would see him maybe for three or four days straight along —I would be in town, and he would be down there at the store, come down by himself.”

The witness then testified to Lloyd Sullivan’s subsequent injury in May, 1914, in the overturning of his chair which he, Wheeler, witnessed, and further testified that he never thereafter saw Lloyd Sullivan out on his chair.

Gordon Sullivan, 20 years old and a brother of the deceased, Lloyd Sullivan, also for the first time testified upon the last trial. He said:

“After he, Lloyd Sullivan, came back from Gainesville he recovered from the effects of that injury in about a month. He got out and went to going around. He had a rolling chair fixed up for him to get around. * * * He was in perfect health after he got out and went to riding in that chair. I know that Lloyd received another injury after he got his health, and went around, when he turned over he bruised that limb again. * * * It hurt him a great deal. After that the limb began to rise, and we called in Dr. Sullivan and Dr. Bice, and they kept lancing it, and it kept rising, and it never healed any more.”

On the whole, therefore, we think the subject was properly submitted as an issue for the jury’s determination, and this was done by the court in the following language:

“If you find and believe from the evidence that the death of the original plaintiff herein, Lloyd Sullivan, was proximately caused by the injuries he received when he was struck by the car at Sanger, about which evidence has been introduced before you, then these plaintiffs cannot recover anything, and you will find in favor of defendant.”

The contradictory statements of appellees and of Dr. Bice, if any, were before the jury, together with the explanations given by these witnesses, as also the evidence of other witnesses, and we cannot say that the verdict of the jury thereon must be set aside on the grounds urged by appellant as stated in the beginning of this discussion.

In this connection, however, we desire to call attention to an objection made to the testimony of Gordon Sullivan. By referring back to his testimony as already quoted, it will be seen that, among other things, he testified that after Lloyd Sullivan returned from the sanitarium and got to riding in his wheel chair “he was in perfect health.” To this statement appellant objected upon the ground that it was the expression of an opinion and conclusion of a nonexpert, and irrelevant and incompetent. The court, however, overruled the objection. Without determining whether or not of itself the error was sufficient to cause a reversal, we think the ruling was wrong, and perhaps prejudicial under the circumstances of this particular case. The testimony of the physicians tended to show that the abscesses causing the septic poison which resulted in Lloyd Sullivan’s death were induced by a diseased or injured condition of the bone in Lloyd Sullivan’s injured leg, and whether the original or the subsequent injury caused the abscesses was the closely contested issue, and it was going beyond the province, of a nonex-pert witness to state that Lloyd Sullivan had, soon after the first injury, regained “perfect health,” which, in view of the issue, comprehended the idea that the bone of the leg had entirely healed long prior to Lloyd Sullivan’s injury in the fall from his rolling chair. Such an Opinion, we think, was admissible only on the part of an expert. Gordon Sullivan was a nonexpert, and as such could only properly testify, as did several other witnesses to whose testimony no objection was urged, as to Lloyd Sullivan’s apparent general health, absence of complaint, and to other circumstances within the range of common observation, which, together with expert testimony, if any, would be proper for the consideration of a jury in determining whether Lloyd Sullivan’s death was in fact the proximate result of the first or of the second injury. See Jones’ Blue Book of Evidence, vol. 2, § 359, and 11 B. C. L. p. 590, where the subject is discussed.

In this connection also we are inclined to the view that the following special instruction, requested by the defendant and refused by the court, should have been given:

“You are instructed in this case that by proximate cause is not necessarily meant the cause or condition which is nearest in time or space to the result which follows; and, even though you may believe in this case that after the injury sustained by Lloyd Sullivan in having his leg cut off he thereafter fell and injured the stump of such limb, still, if you further believe that the effect, if any, of the injury received by the said Uoyd Sullivan at the time he fell, if he did so, after the original injury was inflicted, was slight only, and that the active and efficient and procuring cause of the said Uoyd Sullivan’s death was the injury received at the time he was run over by the defendant’s cars, you will find for the defendant without reference to any other issue in the case, and so say by your verdict.”

As it seems to us, it was the right of the defendant to have placed before the jury in an affirmative form the law arising from the specific circumstances recited.

Under another assignment appellant insists that the court erred in refusing to give a peremptory instruction on the ground that it conclusively appears from the testimony that Lloyd Sullivan was guilty of contributory negligence in entering upon appellant’s track at the time and under the circumstances of his injury. Under substantially the same evidence appellant on its second appeal presented under its seventeenth assignment of error the same proposition, and it was then overruled. At that time we did not ■discuss the testimony, but contented ourselves with stating that we did not think the evidence “on either of the issues of defendant’s liability or of plaintiff’s contributory negligence” such as to require the peremptory instruction to find in appellant’s favor, as was requested. Under such circumstances, it would be rare indeed that an appellate tribunal would feel called upon to declare a ruling of the court erroneous which, on appeal, had been approved and which later the trial judge followed, and we probably would be entirely justified in disposing of the assignment under consideration without further reference, except for the earnestness with which the contention is presented, and the fact that the discussion will probably illustrate conclusions hereinafter announced. We will therefore briefly present our view upon the state of the evidence relating to the issue of contributory negligence.

Appellant’s contention is to the effect that Lloyd Sullivan either did not look for the train before he started from the coal bin to cross the house track, as he testified, or that if he did so, he voluntarily and heedlessly approached and attempted to cross the track immediately in front of the approaching train. While appellant’s witnesses testified to a state of facts tending to show that Lloyd Sullivan received warning of the approaching train, both from the switchman, McGuire, and by the ringing of the bell and blowing of the whistle, yet this testimony was either directly or inferentially refuted by witnesses in behalf of the plaintiffs, and the conflict was clearly for the jury’s determination. Assuming, therefore, as in aid of the verdict we should do, that no warning was given, and that Lloyd Sullivan did look for the location of the switch train before leaving the coal bin, it cannot be said as a matter of law that a jury might not reasonably infer that at the particular time Lloyd Sullivan turned toward the pathway leading from the pumphouse in the direction of his home, the engine and train were standing still, as one construction of Lloyd Sullivan’s testimony perhaps indicates, and that, therefore, in the absence of any warning Lloyd Sullivan might, in the exercise of ordinary care, have concluded that he could safely cross the track, which at most was but 15 or 20 feet away. It is true, as appellant contends, if the testimony be so construed, it is, apparently at least, altogether improbable that the train from below the depot could have traversed the intervening 255 feet, as shown by the testimony, in time to have run over Lloyd Sullivan had he continued bis journey with reasonable care and diligence, but, as stated-in the beginning of this opinion, it is not very clear from Lloyd Sullivan’s testimony that it was not the engine that Lloyd Sullivan saw down about the depot. If it was the engine instead of the cars to which he referred, then there was some seven or eight cars attached to the engine that extended north from the depot along the switch track, which would bring the train much closer to the car, which had been spotted in front of the stock pens, and which ran over Lloyd Sullivan. But even in that phase of the testimony, if the train in fact was standing, as is, perhaps, not an unreasonable inference from Lloyd Sullivan’s .testimony, which was reproduced upon the last trial, and there was no warning given, it would still be for the jury, we think, to say whether Lloyd Sullivan was guilty of contributory negligence in not again looking to see whether, or not the train was approaching, for the evidence tends to show that in turning towards the pathway across the- house track, he necessarily left the depot and the train, whether standing or in motion, to his left and a little behind, and the proof shows that he was afflicted in his limbs so as to deprive him of the free and rapid motion; his walk, as some of the testimony indicates, was slow and somewhat difficult; there was a slight curve also from the depot to the path crossing, and the engine could not be seen from where Lloyd Sullivan entered upon the track.

Then, too, it is not impossible that after his entrance upon the track, his forward progress was arrested by the exclamation of June Teacle to “go back; go back!” This exclamation and 'the resultant effort on the .part of Lloyd Sullivan to retrace his steps may possibly have been the immediate cause of his being run over. These were all, as it seems to us, theories presented by the evidence, and we think it was for the jury rather than the court to determine the issue of whether or not Lloyd Sullivan was guilty of contributory negligence under all of the circumstances at the time. It is a rule established by many of our authorities that, in order to authorize the court to withdraw the case from the jury by a peremptory instruction, the evidence tending to establish contributory negligence, must, in the absence of a statutory violation, be of such character as that there is no room for ordinary minds to differ in the conclusion to be drawn therefrom. See Hancock v. G., C. & S. F. Ry. Co., 99 Tex. 613, 92 S. W. 456, and cases therein cited. It has also been held that the mere failure to look and listen for the approach of a train is not negligence per se, and cannot be treated as such by the court, though it may be so declared by a jury under the circumstances of the ease. See El Paso Electric Co. v. Kendall, 78 S. W. 1081; S. A. & A. P. Ry. Co. v. Long, 4 Tex. Civ. App. 497, 23 S. W. 499. We are of opinion, therefore, that the court did not commit reversible error in submitting the issue of contributory negligence.

In this connection we should mention the fact that the court submitted the issue of Lloyd Sullivan’s contributory ■ negligence in general terms only, and that appellant requested a special instruction, attempting to apply tlie law of cpntribútory negligence to tlie facts as pleaded by it. It is too late to now question the right of a defendant upon request to have an affirmative presentation of the facts wed pleaded and relied upon by him in support of a plea of contributory negligence, if the evidence tends to show a state of facts as so alleged, which fairly supports ,an inference of negligence. See Wells Fargo Express Co. v. Benjamin, 119 S. W. 513; F. W. & D. C. Ry. Co. v. McCrummen, 133 S. W. 900, and cases therein cited.

The court, however, is not required to give a charge that is inaccurate, and an examination of the special charge, to the refusal of which error has been assigned in this case, shows, as we think, that it was objectionable in that it assumed, in the first instance, that Lloyd Sullivan did not look and listen for the train that approached, as he testified that he did. It further assumes, in effect, that if Lloyd Sullivan attempted to cross the track under the circumstances pleaded and recited in the charge, it would constitute negligence, whereas this was for the jury to determine from all of the evidence before it. The special charge further assumed that, if Lloyd Sullivan approached the track and was run over under the circumstances recited, the result was the proximate cause of his negligence; whereas this also was for the jury; particularly in view of the testimony hereinbefore referred to, possibly indicating that Lloyd Sullivan’s progress was interrupted by the sudden exclamation of June Teacle, and that this act on the part of Teacle, co-operating with the negligence of the operatives of the train in failing to give warning of its approach, may possibly have been the proximate cause.

A further special instruction on the issue of contributory negligence was requested by appellant, which embodied circumstances included in the special charge just disposed of, and also included a reference to the alleged warning given by the brakeman, McGuire, but this charge also, as we think, was likewise objectionable, in that it assumed that Lloyd Sullivan, at the time he started towards and across defendant’s track, did not look and listen, nor did the charge require a finding on the part of the jury that .the circumstances recited did constitute negligence, but assumed, in effect, that if Lloyd Sullivan did attempt to cross the track under the circumstances recited, that it would constitute negligence as a matter of law. The charge was therefore properly rejected.

Error has been, assigned to the following portion of the court’s charge:

“Now, if you find and believe from the evidence that at the time alleged in plaintiffs’ petition, that the deceased, Lloyd Sullivan, was passing over the defendant’s track at the place where people generally passed over the same in going to and from the water plant, as mentioned in paragraph 6, if you find that the people did so pass over said track as so explained therein, and you further find that in so passing over the same that he was struck by a car being backed or moved by the train which was being switched at such place of Sanger, and you further find that defendant company did not have a watchman on said backing cars to discover any person or persons who might be on said track at the place passing across the same, or if you find that said employes operating said train failed to give any signal of the backing of said train, such as ringing the bell, or blowing the' whistle, just prior to the accident, and you further find that deceased, Lloyd Sullivan, was not guilty of contributory negligence, as explained in section 8 hereof, or section 6 above, and you further find that either the failure to keep a watchman on said cars so being backed, if they did so fail, or failure to give some, signal of the approach of the train, such as ringing the bell or blowing the whistle, if they did so fail, was negligence on the part of the operatives of said train., and yon further find that such negligence, if any, was the proximate 'cause of the deceased Lloyd Sullivan’s injuries, and you further find that said injuries, viz. having his leg run over by said train, did not proximately cause his death, then you will find in favor of the plaintiffs, unless you further find for the' defendant under other sections of this charge.”

We think this charge is erroneous, in that its effect was to inform the jury that, if the defendants had no watchman on the cars or gave no signal by bell or whistle, the defendant would be liable under other conditions there stated, even though the defendant had exercised ordinary care in other respects, and even though Lloyd Sullivan may have had sufficient warning through other sources. It was undisputed that there was no watchman upon the backing train, and it may be true that the operatives of the train failed to give any signal of its backing, such as ringing the bell or blowing the whistle, just prior to the accident, yet if in fact the brakeman, McGuire, as he testified, warned the deceased as he started towards the track and deceased heard him in time to have availed himself of the warning, all of which was for the jury to determine, then the fact that there was no watchman on the ear, and that no warning signal had been given by bell or whistle, would not necessarily be material. The defendant had the right to have the jury determine from all of the facts whether the defendant exercised ordinary care to give warning, in any way in which it might be done, of the approach of the cars, and the charge objected to is affirmatively erroneous in excluding the effect that might have been given to the warning, if any, given by the brakeman, McGuire.

We are of the opinion that there was error also in permitting the introduction of a part of the testimony of appellees’ witness Joe Warren. On the trial, Joe Warren, the negro helper of June Teacle, standing upon the platform of the stock pens, testified that he, as well as June Teacle, holloed to Lloyd Sullivan. He further testified that he did not hear the brakeman McGuire halloo to Lloyd Sullivan; that he never heard the brakeman say a word, and that he had not theretofore so testified. On cross-examination, and for the purpose of impeachment, the defendant offered the following portion of the testimony of Joe Warren, given upon the first trial of the case in 1913:

“Q. How did yon tell him to go back? A. I said ‘The train is going to back up here; you had better look out.’ Q. Did you halloo at him? A No, sir; not in a disti’essing way, because I thought that he could get out of the way. Q. Didn’t you see the brakeman there at that time? A. The brakeman was on the same side he was on. Q. On the same side Lloyd Sullivan was on? A. Yes, sir. Q. Did he run towards Lloyd Sullivan? A. He did' after the train had very near caught him; he run toward him. Q. You saw him run toward him before he was struck? A. Yes, sir. Q. Did you hear the brakeman halloo at him? A. Yes, the brakeman said you are going to get hurt, or something like that. Q. Was he running? A. Yes, sir; he was running then. Q. He told him he was going to get hurt if he didn’t look out? A. Yes, sir. Q. Could you see the brakeman standing out close to the coal bin just when Lloyd Sullivan started? A. Yes, sir. Q. Did you see the brakeman give the stop signal then? A. No, sir. Q. Were'you looking at him? A. No, I wasn’t watching him; I was watching Lloyd Sullivan. Q. You don’t know whether he gave the stop signal then or not — the only stop signal you saw him give was after the train had struck him? A. It was just before it struck him. Q. You saw the brakeman give the stop signal just before the train struck him? A. Yes, sir.”

Thereafter the plaintiffs, in corroboration of the witness, offered, over the appellant’s objection, the following portion of the testimony of Joe Warren, given on the second trial of this case, in September, 1914:

“I always try to remember things. Yes; I tried on the last trial to remember. No; there is no reason that I should remember any more now than I did then. I don’t undertake to say whether I did or didn’t make that answer on the last trial. As to whether I was asked this and made the following answer: ‘Did you hear the brakeman holler at him ? A. Yes; the brakeman said, ‘You are going to get hurt,’ or something like that; will say that was Mr. Teacle. If I made that answer, I was trying to repeat what Mr. Teacle said; not the brakeman, but Mr. Teacle. You got that wrong there; not the brakeman — -Mr. Teacle, I meant to say.”

To the testimony so given in corroboration the defendant objected, to the effect that it was irrelevant and incompetent, and as indicated, we think the objection should have been sustained. It is said in 40 Cyc. 2787, that:

“As a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony, and the rule is the same whether the previous statements were made verbally or in writing, and applies equally to statements under oath and unsworn statements.”

On the same subject our Supreme Court in the case of Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863, said:

“Upon the subject of admitting the testimony of the former declarations of a witness in support of his testimony given upon the trial, there is a great contrariety of opinion as to the circumstances which render such admission proper. But two rules are reasonably well established: (1) That in the absence of evidence impeaching the credibility of a witness, such testimony is never admissible. Moody v. Gardner, 42 Tex. 414. (2) That whenever a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him upon the trial, and the tendency of such impeaching evidence is to show that the testimony of the witness is, by reason of some motive existing at the time of the trial or of some influence then operating upon him, fabricated, it is proper to admit evidence of his former declarations which corroborate his testimony, provided such declarations were made at a time when no such motive or influence existed.”

As it seems to us, it is quite clear that the corroborating evidence offered is not brought within the exception indicated in the quotation we have just made, and which is supported by numerous authorities, that is to say, Joe Warren, having been impeached by the introduction of contradictory statements given by the witness on the first trial, could not corroborate the testimony given by him upon the last trial to the contrary by proving that upon the second trial he had testified in harmony with his evidence upon the last trial; it not appearing in any way that the motive, if any, which induced the witness to testify falsely upon the last trial, if he did so, did not exist with like force at the time of his testimony upon the second trial when the corroborating evidence was given. It further appears in the evidence that Joe 'Warren was an employe of the appellee G. W. Sullivan at the time of the accident to Lloyd Sullivan, having temporarily been loaned to June Teacle for the purpose of loading the mules. What other or later connection, if any, between the witness and ap-pellee G. W. Sullivan does not appear, but we think the testimony of the witness upon the last trial, together with the impeaching testimony, and such explanation, if any, as the witness could make at the time of impeachment, should all be left to the jury, without the supporting aid of the fact improperly proven that he gave a consistent explanation a year before. See Vicars v. G., C. & S. F. Ry. Co., 37 Tex. Civ. App. 500, 84 S. W. 286; F. W. & D. C. Ry. Co. v. Stone, 25 S. W. 808.

Appellant urges a number of assignments presenting other questions, but they have no such applicability to the case, nor such importance, as makes it necessary in our opinion to discuss them. All assignments, except as hereinabove indicated, are therefore overruled. But for the errors noted the judgment will be reversed, and the cause remanded.

Reversed and remanded.
      igz^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    COKER v. MOTT et al.
    (No. 5743.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1916.
    Rehearing Denied Jan. 3, 1917.)
    1. Appeal and Ebboe t&wkey;>1011(l)- -Review— Findings of Fact.
    The trial judge’s findings as to the facts have the same effect as findings of a jury, and if the evidence is conflicting, a mere preponderance against the finding is not cause for reversal.
    [For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. &wkey;1011(l).]
    2. Appeal and Ekbob &wkey;>856(l) — Review— PBESUMPTIONS FAVORING JUDGMENT.
    When the judgment of the court can be supported by any reasonable theory as to the evidence and there are no conclusions of fact and law, the judgment must be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3408; D-ec. Dig. <&wkey;856(l).]
    3. Appeal and Ebrob &wkey;>1011(l) — Review-Findings of Fact — Weight of Evidence.
    The fact that the trial judge accepted testimony of defendant alone, as against that of plaintiff and his witnesses, is not ground for a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. <&wkey; 1011(1).]
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Suit by J. C. Coker against W. C. Mott and another, to recover on a note and foreclose a chattel mortgage given as security therefor. From a judgment against the maker for the amount of the note, but denying foreclosure, plaintiff appeals.
    Affirmed.
    Suttle & Todd, of Corpus Christi, for appellant. Pope & Sutherland, of Corpus Christi, for appellees.
   FLY, C. J.

Appellant sued W. C. Mott on a promissory note for $194.40 and to foreclose a mortgage on a certain automobile, executed by Mott to appellant. W. E. Wo-mack was made a party to the suit on the ground that he was in possession of the automobile and claiming the same. The cause was tried without a jury, and judgment rendered in favor of appellant as against Mott for the amount of the note, but in Jiavor of W. E. Womack for the automobile.

Womack swore that he was the owner of the Star Theater, and that on March 27, 1913, Mott, as his agent, sold the same to Tyler & Co., taking the automobile in part payment, that he (Womack) took possession of the automobile, and always retained possession as the owner of the same, and that Mott had no interest whatever in the automobile. Appellant showed that on March 27, 1913, Mott sold the Star Theater, and gave a written transfer in his own name, and received a bill of sale from Tyler & Co. to him for the automobile; that, on April 2, 1913, Mott gave him the note for $194 and a mortgage on the automobile. The transfer of the Star Theater was not filed for record until April 10, 1916, and the bill of sale to the automobile was not acknowledged or recorded. Appellant swore that Mott told him that he traded the theater to Tyler & Co. and that he had taken the automobile as part pay for the theater; that he saw the automobile a number of times in the possession of Mott, and that Mott had represented that he was the owner of the automobile, and had tried a number of times to sell the same to appellant. Two witnesses swore that the Star Theater had been listed with them for sale by Mott.

The evidence showed that Mott left Corpus Christi after the sale of the theater, probably immediately after giving the note 'and mortgage. He could not have had possession of the automobile more than six days before he gave the note and mortgage, and yet appellant swore that he, during that time, saw Mott in possession of the automobile a number of times and that he “tried numbers of times to sell same to plaintiff.” Womack flatly contradicted appellant as to Mott ever having possession of the automobile. No one else testified that Mott was ever in possession of the automobile. Womack did nothing to cause appellant to think Mott owned the automobile. Appellant did not state that he saw the bill of sale before the note and mortgage were executed.

When a cause is tried by the judge, his findings as to facts have the same force and effect as the findings of a jury. If the evidence is conflicting, a mere preponderance in favor of the losing party is not cause for a reversal. Mann v. Wallis, 75 Tex. 615, 12 S. W. 1123. The trial judge was in a much better position to pass upon the credibility of the witnesses and the weight to be given their testimony than this court could be. The bills of sale were given and received by Mott without the connivance of Womack, and the court may have deemed them a part of Mott’s scheme to get money from appellant. Womack’s positive testimony was not shaken by the words and acts of a man who got money from another and then fled from the community. Whenever the judgment of the court can be supported by any reasonable theory as to the evidence, it must be affirmed, where there are no conclusions of fact and law. Tinsley v. Penniman, 8 Tex. Civ. App. 495, 29 S. W. 175.

Because the trial judge preferred to believe Womack as to his ownership and possession of the property, rather than the testimony of appellant and his witnesses, can form no ground for a reversal of the judgment, and none of the decisions cited by appellant sustains any such contention. We can readily conceive of a case in which a judge could properly and wisely reject the testimony of 20 witnesses and take that of one witness, even though the evidence of the 20 be supported by written testimony for which the one witness was not responsible. No effort was made by appellant to show by Tyler, that he really bought the theater from Mott or really sold him the automobile. Womack swore the theater was his, and that Mott acted as his agent in selling it and taking the automobile as part payment, and the bills of sale did not destroy that evidence.

The judgment is affirmed.
      <te>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    GORDON v. TEXAS & PACIFIC MERCANTILE & MFG. CO.
    (No. 8449.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 21, 1916.
    Rehearing Denied Nov. 25, 1916.)
    1. Master and Servant <&wkey;302(2) — Injuries to Third Persons — Liability oe Master.
    The owner of an automobile who was not present at the infliction of the injury cannot be held liable except it be shown that the person in charge was not only the agent of the owner, but was at the time engaged in the business of his master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. &wkey;302(2).]
    2. Master and Servant <&wkey;302(2) — Injuries to Third Persons — Authority oe Servant.
    While authority to use an automobile in exceptional ways might be implied by circumstances which would warrant the inference that the employer knew of such uses, the commitment of a car to the custody and control of an employé for the special purpose of delivering merchandise would not alone authorize the conclusion that the employé was at liberty to use the car for other purposes. ',
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dee. Dig. &wkey;302(2)J
    3. Master and Servant <@=3332(4) — Injuries to Third Persons — Triai>-Instructions.
    In an action for injuries caused by an automobile driven by defendant’s servant, where it appeared that the automobile was in the general control of the servant for commercial use during the daytime, and that the accident happened at night, while the servant, after his employment had finished, was taking persons having no control over him to a fire, the court properly refused a requested instruction that, if the machine was defective and dangerous to use upon the road at night, and that the defects and danger were within the knowledge, actual or constructive, of the defendant, and the driver was one of its employés, defendant would be liable for the consequences, even though the driver was not using the car in the business of his master or with his knowledge.
    [.Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1277; Dec. Dig. <&wkey; 332(4).]
    4. Trial <&wkey;252(8) — Instructions—Evidence to Support.
    In an action for injuries caused by defendant’s automobile driven by its employé, where there was no evidence of incompetency or recklessness of the driver or knowledge on the part of the defendant of such incompetency, an instruction that, if defendant owned the automobile and the driver had been employed regularly and was incompetent or reckless, and the incompetency or recklessness was known to defendant, and the driver was thereafter given control of the car, the retention of the driver under such circumstances constituted negligence, was properly refused.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 603; Dec. Dig. &wkey;252(8).]
    5. Evidence &wkey;>106(5) — Intoxication — Admissibility.
    In an action for damages caused by defendant’s automobile, driven by its servant, where there was no evidence tending tq show that the servant was habitually intoxicated or defendant ever knew or heard of his being in an intoxicated condition, testimony that the driver on one occasion had appeared intoxicated when he came to -deliver merchandise to the witness was incompetent.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. § 187; Dec. Dig. 106(5).]
    6. Master and Servant <&wkey;330(3) — Injuries to Third Person — Evidence—Sufficiency.
    In an action for damages caused by defendant’s automobile while driven by its servant, evidence that the servant was acting outside the scope of his employment held sufficient to justify a verdict for defendant.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 1272; Dec, Dig. &wkey;> 330(3).]
    7. Master and Servant &wkey;>330(l) — Injuries to Third Person — Evidence—Burden of Proof.
    In an action for damages caused by an automobile driven by defendant’s servant, although proof that an automobile is being driven by a servant will support a finding of fact that he was employed in the business of his master, in the absence of countervailing proof, the burden of proof as a matter of law remains upon the plaintiff to establish the material allegations upon which recovery must rest, since while the weight of the evidence may, from time to time, shift, the burden of proof as to the essential elements of the plaintiff’s cause of action does not.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1270; Dec. Dig. <&wkey;> 330(1).]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Suit by Mrs. R. N. Gordon against the Texas & Pacific Mercantile & Manufacturing Company. Judgment for the defendant, and plaintiff appeals.
    Affirmed.
    Alexander, Baldwin & I-tidgway, of Ft, Worth, for appellant. John W. Wray, of Ft. Worth, for appellee.
   CONNER, C. J.

Mrs. R. N. Gordon brought this suit in the district court of Palo Pinto county against the Texas & Pacific Mercantile & Manufacturing Company on February 15, 1915, for $25,000 damages because of personal injuries received by her on the night of March 24, 1914, in an automobile collision. She alleged that the defendant company was a corporation engaged in a general mercantile business at Thurber, Tex., and owned and operated an automobile truck that it used in and about its business and between the towns of Thurber and Mingus in hauling merchandise and transporting men between said towns and in protecting and looking after its property. She further alleged that on the night mentioned she, with her children and brother, was driving a one-horse buggy along the public road from Mingus to Tburber, when she met the defendant’s automobile truck, driven by one of its agents and servants, and that without fault on her part, and through the negligence of said servant, the automobile ran into the buggy, threw her out upon the ground, and seriously injured her, the particulars of which we need not here specify. It was alleged that the automobile truck at the time was defective in particulars set out in the petition, and “was, at the time of the accident, being used for defendant’s business.” It was alleged that the defendant was negligent in permitting said automobile to be used upon the public road at night with'the defects specified, and that the machine in its condition was a dangerous one, which the defendant knew, or could have known by the exercise of ordinary care. As a further-ground of negligence it was alleged that the defendant employed and permitted said Car to be operated by a careless, incompetent, and reckless driver. The defendant answered by general demurrer, general denial, and plea of contributory negligence. Upqn the trial, which was on October 12, 1915, the case was submitted to a jury upon special issues, in answer to which the jury returned the following verdict:

“We, the jury, find that Charley De Witt (the driver of the automobile at the time in question) was not engaged in the defendant’s business at the time of the accident, and was not acting within the scope, nor apparent scope, of his employment.”

The jury had been instructed that in event they so answered that isssue, other issues need not be considered by them, and thereupon the court entered judgment in favor of the mercantile company, from which the plaintiff has duly prosecuted an appeal.

Error is assigned to the refusal of the court to give the following special instruction:

“Gentlemen of the jury: You are instructed that though you may. believe from the evidence that at the time of the accident in question the auto truck causing the accident was not being used for any business of the defendant, yet, if you believe from the preponderance of evidence that said ear was owned by defendant, and that it was being driven by an employé of the defendant, and that said car was in a bad state of repair and defective, and that such defects or bad state of repair, if any, rendered said car a dangerous machine to use on the public road in the nighttime, and that defendant, or those of its agents or employés who had control and management of said car, knew, or by the exercise of ordinary care could have known, of such defective condition, if any, and knew of tbe danger to the traveling public incident to the operation of said car upon the public road in its defective condition, and that such use and operation of the car in such condition at said time and place was negligence, and that plaintiff was injured, and that such negligence of defendant, if any, was the proximate cause of ber injuries, if any, then you will find for plaintiff.”

It seems evident that the requested charge authorizes a recovery without a finding that the appellee company, through some authorized agent or source, knew, or by the use of due care should have known, that the driver of the car was using it for the purpose shown in the evidence. The charge proceeds upon the assumption, and appellant so urges, that if the machine was defective, as alleged, and as there was evidence to show, and that it was dangerous to use it upon- the road at night, as was being done, and that said defects and danger Were within the knowledge, actual or constructive, of the appellee company, and that the driver was one of its employés, then appellee would be liable in damages for the consequences, even though at the time in controversy the driver was not using the car' in the business of his master, but for purposes of his own, or of others with him without any knowledge on the part of the master that it was at the timé being so used.

The evidence substantially shows that De Witt, the driver, had for a number of years served the defendant company in the capacity of a driver of the automobile in question; that the automobile was used in the delivery of merchandise in and about the town of Thurber and on monthly trips to the town of Mingus, on the railroad a few miles away; that ordinarily deliveries of merchandise were made in the daytime, although there was evidence that occasional deliveries were made as late as 8 or 10 o’clock at night. De Witt had been furnished and kept a key to the garage in which the automobile was kept at night. The evidence is silent as to whether or not any other person had such a key. On the night in question De Witt completed his deliveries about 6:30 o’clock, housed his automobile, and thus completed his labors for the day. Some time later, between 8 and 9 o’clock, it was discovered that a fire was raging in the town of Mingus, at which point there is evidence tending to show that the defendant company owned some property, although its location and character seems not to be specified in the evidence. Upon the discovery of the fire several persons, including the chief of the fire department at Thurber, a cashier of the defendant company employed in its mercantile establishment, and perhaps one or more other employés of the defendant company induced De Witt, the driver, to go to the garage, bring out his automobile, and take a company of men, some 20 or 25, to Mingus to aid in putting out the fire. The auto was defective; it had poor lights, and possibly some defect in its steering gear, and on the journey the collision occurred of which the plaintiff complains, and the evidence leaves no doubt of her serious injury. The evidence was to the effect that Mr. Williams, one of defendant’s vice presidents, and Mr. W. K. Gordon, its general manager, were the agents of the defendant company having authority and control over De Witt. It does hot appear, however, that either of these agents knew on the night in question that De Witt had, or intended to take, the automobile out of the garage and mate the trip to Mingus, nor is there any evidence tending to show that either of these officers ever knew of De Witt’s so using the automobile in the nighttime for any like purpose. Nor does the evidence show that the chief of the fire department, or the defendant company’s cashier, or physician, or other employé, that went to Mingus on the night in question, had any authority or control over De Witt whatever. Nor does the evidence show that it was within the scope of the duties of the driver named, or of any one of defendant’s employés, who went to Mingus, to go there even in the protection of property belonging to the company. Under the evidence they certainly were not so directed on the night in question; or rather there is no evidence that they were so directed. The evidence further showed, however, that the defendant company owned the automobile truck, kept it in repair, and furnished the gasoline, oil, and ail equipment for its use; and the evidence fails to show that any other of defendant’s employés had been given custody or control over the automobile at either day or night. But Mr. Gordon, the general manager, testified without contradiction that:

“As driver, it was part of De Witt’s duty to put the truck up at nights the same as it is the duty of the teamster to put his teams up at night and take them out in the morning. De Witt owed the company absolutely no duty after his day’s work was over; after the day’s work is done he is free as far as the company is concerned.”

Appellant’s contention, in substance, is that the mere fact that the automobile was defective and dangerous for driving at night, and known to be so by the defendant, and that at the time it was being driven by one of defendant’s servants, having been given power to take it from the garage, creates a liability on defendant’s part for the consequences. We cannot approve so broad a ground of liability on the part of automobile owners. The authorities seem uniform to the effect that the owner of a car who was not present at the infliction of the injury cannot be held liable, except it be shown that the person in charge, not only was the agent or servant of the owner, but also was engaged at the time in the business of his master. See Hill v. Staats, 187 S. W. 1039, 189 S. W. 85 (No. 8416), by this court not yet,officially reported; Christensen v. Christiansen, 155 S. W. 995; Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; Lotz v. Hanlon, 217 Pa. 339, 66 Atl. 526, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 599; Evans v. Automobile Co., 121 Mo. App. 266, 101 S. W. 1132; Patterson v. Kates (C, C.) 152 Fed. 481; Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946; Clark v. Buckmobile Co., 107 App. Div. 120, 94 N. Y. Supp. 771; Howe v. Leighton, 75 N. H. 601, 75 Atl. 102; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338.

If it be conceded that the automobile under consideration was defective, and that it was dangerous to drive it upon the public roads at night, as the evidence tends to show, yet something more is required in order to create liability than a mere showing that the automobile was owned and furnished by the defendant and had been placed in the general control of the driver for a special purpose. There is nothing in this case to show that the driver’s control was general in the sense that he had the right or authority to take or use the car for any purpose other than for the delivery of merchandise, or to go to Mingus once a month with guards to get the money with which to pay the defendant’s em-ployés. The commitment of the car to the custody and control of De Witt for these purposes will not alone authorize the conclusion that he was at liberty to use the car in visiting fires or places of amusement in a neighboring village. Of course authority to so use the car might be shown by direct evidence, or might be implied even by proof that De Witt had used the car for such purposes with such frequency as to warrant the inference that some agent of the defendant corporation having control knew, or by the exercise of ordinary care could have known of, and consented to, such exceptional uses of the car by De Witt. But the record discloses no such proof, direct <h- circumstantial. The evidence, indeed, negatives any such state of affairs. Gordon, the general manager of defendant corporation, testified that he never knew De Witt to use the car later than 8 o’clock at night. One or more witnesses testified that they had seen De Witt driving the car to Mingus, visiting picture shows, etc., but the number of times, or the time of day or night that such uses occurred is not made to appear. Nor has it been made to appear that any officer of the defendant corporation having control over De Witt over the car in question knew of any such use.

There is also testimony that When De Witt was urged to take the car out on the night in question, he replied that he was not authorized to do so without the consent of Williams, the vice president, or a Mr. Creighton, but nevertheless finally went to the garage and took the car out, and we find no evidence that either Williams, Creighton, Gordon, or other agent of the defendant company having any right of control over De Witt, or over the car, either knew of or consented to De Witt’s taking, and to the consequent use of, the car on the night in question ; and, while there is evidence that the defendant company owned the property in Mingus, the evidence fails to show with any degree of certainty that it was in danger, or that it was any part of the duty of De Witt, the driver of the car, or of any one of defendant’s employés who accompanied him, to go to the fire in question in an effort to save property of the defendant corporation. Indeed, the vital issue, as submitted by the court, and the answer thereto as given by the.jury, seems broad enough to preclude all reasonable inferences arising from the evidence upon which a judgment in appellant’s favor could be predicated. We, accordingly, find that the court properly refused the special charge requested.

Error is also assigned to the rejection of a special charge, to the effect that if the defendant owned the automobile in question and De Witt had been employed as a regular driver, and that De Witt was an incompetent or reckless driver, and that such incompetency or recklessness was known to the defendant, and De Witt thereafter given the management and control of the ear and to drive the same, and that the retention of the driver under such circumstances constituted negligence, they would find for the plaintiff. We find but little, if any, evidence of substantial weight tending to show incompeteney or recklessness on the part of the driver, De Witt, or that, if any such incompeteney there was, such incompeteney was known to any agent of the defendant corporation having authority to act. Por these reasons, and for reasons above given in disposing of the first assignment, the second assignment, complaining of the action noted, will be overruled.

Complaint is also made of the exclusion of the testimony of Henry Bernard, to the effect that one night about 11 o’clock about one month before the accident in question, De Witt came to his, the witness’ house, to deliver some feed stuff, and that he appeared to be intoxicated at the time. The testimony was offered on the issue presented in the pleadings of De Witt’s incompeteney, but we find no error in the court’s ruling in this respect. We do not understand that an isolated condition of the kind indicated is competent proof to establish incompeteney, and there is no evidence tending to show that De Witt was habitually intoxicated, or that the defendant, through any authorized agent, ever knew or heard of his being in an intoxicated condition.

The remaining assignments complain that the verdict and judgment are not supported by the evidence, and that the court erred in placing the burden of proof upon the plaintiff on the issue, among others, of whether or not the driver, De Witt, acted with authority in driving the car. What we have already stated of the evidence we think sufficiently disposes of the contention that the evidence is insufficient to support the verdict and judgment, and several authorities have been cited to the effect that when it is shown that when an injury has been negligently inflicted by a servant of the owner of the car, it will be presumed, in the absence of countervailing proof, that the servant was at the time employed in the business of his master. See Studebaker v. Kitts, 152 S. W. 464; Long v. Nute, 123 Mo. App. 204, 100 S. W. 511; Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59; Kahn v. Home Telephone & Telegraph Co., 78 Or. 308, 152 Pac. 240.

We think, however, that the inference arising from the facts stated are, properly speaking, inferences of fact, and not of law. That is, it may be true that upon proof that the car of an owner is being driven by one of his servants is sufficient as a matter of evidence, in the absence of explanation that the driver at the time was engaged in the master’s business, and would support a finding to that effect. The inference, however, we think is one of fact. The burden of proof as a matter of law, as we understand the rule, yet remains upon the plaintiff to establish upon the whole case the material allegations upon which his right of recovery must rest. While the weight of the evidence may, from time to time, shift, the burden of proof as to the essential elements of the plaintiff’s cause of action does not do so. See Clark v. Hills, 67 Tex. 141, 2 S. W. 356; Railway Co. v. Johnson, 92 Tex. 591, 50 S. W. 563. We are therefore of opinion that the court’s charge was correct. A contrary charge, indeed, would, under the circumstances of this case, have been misleading, and the evidence to the effect that, when the car was housed for the night, De Witt’s duties were ended seems undisputed. His ordinary hours of employment in the business of the master began in the morning, and, with the exception of a few instances shown, ended in the evening. On the night in question it is undisputed that his duties for the day had ended. His car had been housed, and the use thereafter made was in the night and exceptional, and, as it seems to us, one of the vital propositions of the plaintiff’s case was to show -that at ■ the time of the accident in question De Witt was engaged in the business of his master, or at least acting within the apparent scope of authority given him by the master. The plaintiff so alleged, and, as we conclude, the burden was Upon- her to support the allegation. But even if mistaken in this view of the law, we consider the evidence on the issue so preponderating in appellee’s favor as to render the error of the court, if any, without probable prejudice.

On the whole, we conclude that all assignments of error must be overruled, and the judgment affirmed.
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