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(218 S.W.) in some places not quite to it. The right for six months before the track or rails were hand side of the track is out on level ground, placed upon it, and that it was constructed but there is a ditch on the left-hand side, of good, solid dirt, yet the reasonable safety and the engine ran off on the left-hand side of such roadbed so constructed is not conand turned over in the ditch. The trackmen clusive as a matter of law. And it must be had been working on the track all day until further considered as a circumstance in the 6 o'clock of the evening before the derailment, case that there was a new dump or roadbed and while not entirely had practically fin made the day the track or rails were laid, ished the work of changing the track. No' and the further fact must be considered that slow order or notice was given of the con- the evidence shows that the track or rails and dition of the track to the operatives of the ties were laid the day before the derailment train in question. After the trackmen quit occurred. This relaying of rails and ties rein the afternoon, and before the derailment, quired, it appears, some filling in of cinders three or four trains passed over this same and dirt under them, the raising of a part of track without any accident happening to them. the rails, the tamping of these cinders and The appellee was 63 years old and had been dirt, and an alignment of the track. And in the employ of the Texas & Pacific Railway it further appears as a circumstance thatcompany for a long time prior to the appoint

After the rails were placed on the roadbed, ment of the present receivers, and remained “after we throwed the embankment over, we as locomotive engineer when the government threw it further to the outside of the curve. took charge of the road on December 31, 1917. The track came about to the edge of the new There is involved in the verdict of the jury the embankment; some places not to it. I do not finding of fact that the defendant was guilty remember how it was at the place of the wreck. of negligence as alleged proximately causing We throwed the curve all the way from a foot the injury to appellee. It is concluded that the to four feet; most of it was thrown four feet verdict of the jury has support in the evi- over; throwed å distance to make the curve

perfect." dence and should be sustained and here adopted. The finding of the jury as to the

Whether or not the entire work of changamount of damages is sustained by the evi- ing the track and aligning it made the track dence, and is here adopted.

reasonably safe for use such as an ordinarily Prendergast & Prendergast and Hall, Brown prudent person would make it, considering & Hall, all of Marshall, for appellants. the use it was put to, was, we conclude, a

S. P. Jones and J. T. Casey, both of Mar- matter of fact essentially for the jury to de shall, for appellee.

cide; and it is thought that the evidence is

sufficient to support a finding of negligence LEVY, J. (after stating the facts as above). by the Jury. It is true that three or four [1] As the substance of the special charge trains passed safely over the track before complained of in the first assignment of error the derailment, but that is only a circumis, we think, fully covered by the court's gen- stance for the jury to consider. The jury eral charge in the ninth paragraph, the as- may have concluded, as in their province, signment, we conclude, should be overruled. that the passing of these trains with their

The special charge complained of in the weight on a newly laid track caused the track second assignment of error is substantially in its then condition and according to its conembraced in the fourth paragraph of the struction to be materially weakened or in court's charge, and the refusal to give this some weak condition for the passenger train special charge is not, we think, error. to pass over it with reasonable safety. There

The third assignment of error charges that is evidence that the appellee ran his train the verdict of the jury is excessive in amount. slowly over the track. The exact cause of It is believed that the finding of the jury the derailment does not positively appear; should not be set aside in this respect, in view but the circumstances in evidence tend to of the injury, since the assessment of the support the finding of the jury, as involved amount by the jury is supported by the evi- in their verdict under the charge of the court, dence before them.

that the cause of the wreck was, as alleged, [2] The fourth, tifth, and sixth assignments the insufficient bed and support under the of error are based on the contentions that the rails, or that the ties did not have sufficient evidence does not show any negligence on the support between them. The case does not part of the defendant, and that the plaintiff rest, we conclude, upon the doctrine of res failed to make legal proof of the negligence ipsa loquitur, but there is proof of negligence alleged. While it appears from the evidence by direct and circumstantial evidence. that the roadbed was constructed some five The judgment is affirmed.

involved, is inadmissible to raise an inference AMERICAN AUTOMOBILE INS. CO. et al. that he was negligent at the time of the acciv. STRUWE. (No. 6326.)

dent. (Court of Civil Appeals of Texas. San An- 9. WITNESSES Cw405(2) – PLAINTIFF CANNOT tonio. Jan. 14, 1920. Rehearing Denied BE CONTRADICTED AS TO IMMATERIAL AND Feb. 11, 1920.)

COLLATERAL MATTERS. 1. APPEAL AND ERROR Om 890–ADDITION TO for injuries sustained when defendant's motor

Where plaintiff, in his action for damages PLEA IN ABATEMENT MADE BY ASSIGNMENT

car collided with his motorcycle, testified on OF ERROR CANNOT BE CONSIDERED.

cross-examination that he had never at any othA plea in abatement, the overruling of er time collided with an automobile while ridwhich was assigned as error, must be considered ing his motorcycle, defendant cannot contraas presented to the judge, and an addition at dict plaintiff by proof of another collision, for tempted to be made in the assignment cannot evidence of other negligent acts would be inadbe considered.

missible, and the matter was collateral. 2. ACTION Om 50(3)-INJURED PARTY CAN JOIN IN ONE ACTION MOTORIST AND INSURER.

10. TRIAL OW41(4)-COURT HAS DISCRETION

TO ALLOW WITNESS NOT UNDER BULE WHO One injured in a collision with a motorcar

HEABD PART OF TESTIMONY TO TESTIFY. may in the same action join the owner of the vehicle and an insurer, even though the insurer

It is within the sound discretion of the was liable only after judgment had been award-trial court to permit a witness not under the ed against the owner, and the cause of action rule, who had heard a part of the testimony, to against the owner sounded in tort and that testify. against the insurer was based on contract; the

11. APPEAL AND ERBOB C1051(2) — ERBOB two causes of action arising out of the same

CANNOT BE PREDICATED ON ADMISSION OF transaction.

TESTIMONY WHICH WAS UNQUESTIONER. 3. ACTION Om 47-JOINDEB OF CAUSES ON CON Where, in action for injuries sustained when

TRACT AND FOR TORT PROPER WHEN BASED defendant's automobile collided with plaintiff's ON SAME TRANSACTION,

motorcycle, a witness not under the rule, who Where the two causes of action arose out had heard part of the testimony, was allowed of the same transaction they may be joined, to testify as to the position of the vehicles though one was for breach of contract and the after the accident, error cannot be predicated other for tort.

on the admission of such testimony, where there 4. APPEAL AND EBROR Om683 - REFUSAL OF

was no question but that the vehicles were in

the position described by the witness. COURT TO SUPPRESS ANSWER IN DEPOSITION NOT CONSIDERED IN ABSENCE FROM BECORD 12. TRIAL m 62(1)-RIGHT OF PLAINTIFF TO OF TESTIMONY RELATING THERETO,

TESTIFY IN REBUTTAL. An assignment of error complaining of the

Plaintiff may testify in rebuttal of the tesrefusal of the court to suppress an answer in timony of witnesses introduced by defendant a deposition cannot be considered, where the bill of exceptions referred to to sustain the as- 13. LICENSES 11(1) — SOLDIER IN ACTIVE signment had no reference to the testimony

SERVICE NEED NOT PROCURE LICENSE AS complained of.

"CHAUFFEUR." 5. DEPOSITIONS 83(3) — CANNOT BE SUP An American soldier in active service, PRESSED BECAUSE WITNESS MADE CONTRADIC- though he is required to operate a motorcycle

with due care, is not a chauffeur within the That a witness testifying by deposition made state statute, and need not procure a state licontradictory statements does not warrant the cense as chauffeur. suppressing of deposition; the matter merely [Ed. Note. For other definitions, see Words going to the witness' credibility.

and Phrases, Second Series, Chauffeur.] 6. APPEAL AND EBBOB Om742(1)-ASSIGNMENT 14. HighwAYS m183–PLAINTIFF'S FAILURE OF ERBOR NOT FOLLOWED BY STATEMENT WILL

TO PROCURE CHAUFFEUR'S LICENSE NO EXNOT BE CONSIDERED.

CUSE FOR DEFENDANT'S NEGLIGENCE IN BUNAn assignment of error not followed by a

NING HIM DOWN. statement will not be considered.

That plaintiff, who was operating a motor7. TRIAL m96—WHERE PART OF WITNESS' cycle, had not procured a state license as a

ANSWER WAS ADMISSIBLE DENIAL OF MOTION chauffeur will not excuse negligence of defendTO STBIKE THE WHOLE IS NOT ERROR.

ant in running down plaintiff with motorcar. Where a part of a witness' answer was

15. APPEAL AND ERBOR 994(2) - QUESTION clearly admissible, the denial of a motion to

OF CREDIBILITY OF WITNESSES FOR JURY AND suppress the whole answer and to strike out

NOT APPELLATE COURT. the same is not error.

In an action for injuries suffered by plain8. NEGLIGENCE C132(4)—EVIDENCE OF OTH- tiff, who was struck by defendant's motorcar

ER ACTS OF NEGLIGENCE OF PLAINTIFF INAD while riding on his motorcycle, where there
MISSIBLE
SHOW CONTRIBUTORY NEGLI-

was conflicting testimony as to whether plain

tiff bad a light on his motorcycle, the question Evidence of other negligent acts on the of credibility of witnesses was for the jury, and part of plaintiff, unconnected with the accident their verdict will not be disturbed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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TORY STATEMENTS

TO

GENCE.

(218 S.W.) 16. DAMAGES 132(1)-AWARD OF $4,500 IN | Zunker. On the overruling of that plea is

FAVOB OF ONE WHOSE SKULL WAS FRACTURED, based the first assignment of error, which, JAW BROKEN, AND GENERALLY BRUISED NOT however, seeks to add to the plea in abateEXCESSIVE.

ment the further ground thatAn award of $4,500 damages in favor of plaintiff, a healthy young man who suffered "The suit is an improper joinder of a suit injuries in a collision with defendant's motorcar, for damages arising from a tort against said A. consisting of a fractured skull, concussion of the F. Zunker with a suit upon a written contract, brain, broken jaw, loss of teeth, general bruis- to wit, said contract, policy, or bond of insuring of the body, and a permanent destruction ance executed by said insurance company alone." of hearing in one ear, is not excessive.

Of course, the addition to the plea cannot Appeal from District Court, Bexar County ; be considered, even if it were meritorious, R. B. Minor, Judge.

but the plea must be considered that was preAction by C. L. Struwe against the Amer- sented to the trial judge. That plea was ican Automobile Insurance Company and A. properly overruled, because under the laws F. Zunker. From a judgment for plaintiff, of Texas a dual suit will always be avoided defendants appeal. Affirmed.

whenever all parties can have a fair trial

when joined in one suit. Appellee, had he so Wm. Aubrey and H. M. Aubrey, both of desired, could have prosecuted his claim to San Antonio, for appellants.

judgment as against Zunker and then have Perry J. Lewis, H, C. Carter, Champe G. sued on that judgment against the insurance Carter, and Randolph L. Carter, all of San company, but the law does not make it imAntonio, for appellee.

perative that he should do so, but would per

mit him to dispose of the whole matter in FLY, C. J. This is a suit for damages in one suit. stituted by appellee against the insurance The rule has often been announced in Texcompany and A, F, Zunker, in which it was as that when two causes of action are conalleged that appellee had been injured nected with each other, or grow out of the through the negligence of Zunker in causing same transaction, they may be properly a collision between an automobile operated joined, and in such suit all parties against by the latter and a motorcycle operated by whom the plaintiff asserts a common or an appellee. The grounds of negligence were alternative liability may be joined as defendthat the automobile was operated at an 11- ants. Clegg v. Varnell, 18 Tex. 294; Love v. legal and dangerous rate of speed, that is, Keowne, 58 Tex, 191; Jones v. Ford, 60 Tex. in excess of 25 miles an hour; that the au- 127; National Bank v. Texas Investment tomobile was operated on the left side of the Co., 74 Tex. 421, 12 S. W. 101; Mathonican street, in defiance of law; and that in pass- v. Scott, 87 Tex. 396, 28. 8. W. 1063. Even if ing the motorcycle the automobile was mov- appellants had presented any plea in abateing in an opposite direction to that in which ment ås to joinder of damages arising from the motorcycle was moving, and went at a a tort with those arising from a contract, it higher rate of speed than 15 miles an hour. could not, under the facts of this case, be The insurance company was sued as liable sustained, for the rule is that a suit may inunder a bond or policy of insurance which clude an action for breach of contract and bound the company to pay for damages in one for tort, provided they are connected with curred by the negligence of Zunker in the each other or grew out of the same transacsum of $5,000. The cause was submitted to tion. Peoples v. Brockman, 153 S. W. 907. a jury on special issues, and upon the re To the same effect is Insurance Co. v. Beneke, sponses thereto judgment was rendered in 53 S. W. 100, and various other authorities favor of appellee as against both of the par- cited in the Peoples-Brockman Case. ties defendant, here as appellants, in the sum Cases cited in which reference to insurance of $4,500.

on the part of the defendant is condemned There was evidence to sustain the findings during a trial have no applicability to a case of the jury to the effect that a collision oc in which misjoinder is being urged. Those curred between an automobile operated by cases condemn any reference to an insurance a driver for Zunker, the same being a service company where it is not joined in the suit, car, and a motorcycle operated by appellee, on the ground that it might increase the damand that appellee was damaged in the sum ages against the defendant as to whom an found by the jury.

action is being prosecuted. Under the clear [1-3] Appellants filed a plea in abatement provisions of the policy in this case it operon the grounds that th su had been pre- ated for th benefit of any injured person, maturely brought against the insurance com- and appellee was authorized to sue the inpany, and that it had been improperly joined surance company, and the proposition that with Zunker, as said insurance company, un such suit could only be maintained by a suit der the terms of the policy, was only liable separate from the party who was insured and after judgment had been awarded against who inflicted the injuries cannot be enter

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tained under our system of judicial proce-, bile while riding a motorcycle, and appellants dure.

sought to prove by one Victoria Clark that [4] The third assignment of error com- she had, while riding in an automobile in plains of the action of the court in refusing December, 1918, collided with appellee while to suppress the answer of W. H. Henry to he was on a motorcycle. The evidence was direct interrogatory No. 7, in his deposition rejected by the court. The bill of exceptions taken in February, 1919, which was in regard discloses that the trial judge asked counsel to the rate of speed at which the automobile for appellants on what ground he thought was moving when it collided with the motor- the evidence admissible, and he replied cycle. The only statement under the assign- | "Nothing, except plaintiff testified he had ment is as to an answer to a cross-interroga- never had any other accident with his motortory propounded to the witness, and is not in cycle. I don't know whether it is worth anyregard to the speed of the automobile, but as thing or not." The collision about which to whether Zunker turned to the right or left evidence was sought occurred, it seems, after about the time of the collision, and the record that one on which this action is based, and shows that even the answer set out in the it is stated in the brief that "The evidence brief is not the one approved in bill of excep ught to be elicited attacked the memory tions. Bill of exceptions No. 7, referred to and credibility of plaintiff.” The evidence of by appellants to sustain the assignment, has Victoria Clark was objected to by appellee beno reference to the testimony complained of cause it had no connection with the accident in the assignment. The assignment cannot and was as to a collateral matter brought be considered.

out on the cross-examination. Clearly the [5] In assignments of error Nos. 4 and 5 only object in the testimony sought to be incomplaint is made of the testimony of the troduced was to impeach the witness on an witness Henry as to the location of appellee | immaterial and collateral matter; immateri. when struck, because the witness in former al because it is the rule that other acts of neg. answers had testified that his view of appel- ligence separate and distinct from the one lee was obstructed when the collision took connected with the action cannot be proved, place. There was no error in the action of and merely collateral because it was in no the court. No tenable ground of objection to way connected with the points at issue. It is the evidence was made. A deposition cannot said by the Supreme Court in Railway F. be suppressed merely because a witness has Johnson, 92 Tex. 380, 48 S. W. 568: contradicted other statements made by him.

"We think the rule is well settled that, when That was a matter that went to his credi- the question is whether or not a person bas bility, and not to the competency of the evi- been negligent in doing or in failure to do a dence.

particular act, evidence is not admissible to [6] The sixth assignment of error is not show that he has been guilty of a similar act

of negligence, or even habitually negligent upon followed by a statement and will not be con

a similar occasion." sidered. [7] The eleventh assignment of error is

The evidence as to a subsequent act of neg. overruled. At least a portion, if not all, of ligence was consequently on an immaterial the answer of the physician of which com- collateral matter, about which appellee could plaint was made was clearly admissible, and not be contradicted. As said by the Court of as the motion was to suppress the whole of Civil Appeals of the Fifth District in Rail. the answer it was not error to refuse to way v. Matthews, 89 $. W. 983: strike out all of the answer. The question "It is a well-established rule of practice that asked was: "Please state whether or not, a witness cannot be contradicted upon an imin your opinion, the injuries you have de- material matter. This is true whether the matscribed are serious and permanent." The ter upon which the contradiction is sought was answer was: "The injuries that have been elicited upon the examination in chief, without described are capable of being permanent and objection, or upon cross-examination of the witwere quite serious.” The bill of exceptions

ness." shows that the only objections urged to the A case might become interminable if every answer were that the “part of said answer immaterial collateral matter could be fol. which states that said injuries were capable lowed up into its possible numerous ramiof being permanent was irrelevant, immate- fications. rial, and incompetent and not sued for in this (10, 11] It is a matter of the exercise of case.” However, other objections are placed sound and reasonable discretion on the part in the assignment which, of course, cannot of a court to permit a witness not under the be considered. The objections made are not rule who has heard a portion of the testitenable. The answer was not open to objec-mony to testify. In this case C. R. Santee, a tions made to it. It was material and rele witness for appellee, came into the courtroom vant and supported by the allegations.

while the case was being tried and heard ap[8, 9] Upon the cross-examination of appel- pellee testify. He then stated that he had lee by appellants he testified that he had visited the scene of the collision shortly after never collided at any time with an automo-l it occurred and viewed the wreck and he gave

. Tex.) ÆTNA ACC. & LIABILITY CO. V. TRUSTEES OF FIRST CHRISTIAN CH. 537

(218 S.W.) the position of the automobile and motor- | witnesses under the circumstances of this cycle, that the former was partially on top case. of the latter and both were on the right-hand [16] The evidence showed that appellee side of the road going south from San An- was a healthy young man, physically strong tonio. There was no question but that the and vigorous, and that the collision caused car and motorcycle were where they were serious concussion of the brain, fractured placed by the witness. The driver of the skull, a broken jaw, loss of several teeth, automobile admitted that he was in the mid- general bruising of the body, badly injured dle of the road coming toward the city and knees, and that the hearing in one ear was that the collision carried his autoinobile over completely and permanently destroyed. A to the left, which was to the right of any one verdict for $4,500 cannot be deemed excessive going from the city of San Antonio, and that as claimed by appellants. The thirty-first the motorcycle was under his front wheel. and thirty-second assignments of error are The evidence of Santee could not have in- overruled. jured appellants, had it been inadmissible. The thirty-third assignment of error is The court did not err in admitting the testi- based on the proposition of a misjoinder of mony.

causes and parties and has been disposed of [12] The fourteenth assignment of error is adversely to appellants in the discussion of overruled. Appellee had the legal right to other assignments. The contention that the testify in rebuttal of the testimony of wit- joinder of the parties caused the jury to benesses introduced by appellants.

lieve that Zunker was merely a nominal par(13, 14] The fifteenth assignment of error ty is not borne out by the record. There is is without merit. The evidence disclosed no evidence of any passion or prejudice. that appellee was an American soldier in the There was no question raised in the trial active service of the army, and of course it court as to the validity of the bond given by was not necessary for him to take out a state the insurance company, and there is no merit license as a chauffeur. He was not a chauf- in the contention made through the thirtyfeur as defined by statute. Matthews v. fifth assignment of error that the bond was State (Cr. App.) 214 S. W. 339. If he had not not valid because the evidence did not show been a soldier and was running a motorcycle that it was accepted or approved by the city without a license, that would not justify the of San Antonio. The bond was binding and automobile driver to negligently collide with valid and formed sufficient basis, with the his motorcycle and injure him. The failure other testimony, for the verdict and juag to get a license had no connection with the ment. collision and did not excuse the negligence of The judgment is affirmed. appellants or mitigate their offense. Mumme V. Sutherland, 198 S. W. 395; Railway v. Vaughan's Administrator, 118 Va. 692, 88 S. E. 308, L. R. A. 1916E, 1222, Ann. Cas. 1918D, 842; Stovall v. Land Co., 189 Ala. 576, 66 ÆTNA ACCIDENT & LIABILITY CO. v.

TRUSTEES OF FIRST CHRISTIAN South. 577; Lindsay v. Cecchi, 3 Boyce (Del.)

CHURCH OF PARIS. (No. 2179.) 133, 80 Atl. 523, 35 L. R. A. (N. S.) 699; Arm. stead v. Lounsberry, 129 Minn. 34, 151 N. W. (Court of Civil Appeals of Texas. Texarkana. 542, L. R. A. 1915D, 628.

Jan. 15, 1920.) [15] The seventeenth, twenty-first, twenty- 1. APPEAL AND ERROR ww281(1), 719(1)–FAILsixth, twenty-seventh, and twenty-ninth, as

UBE TO MOVE FOR NEW TRIAL AND TO FILE signments of error assail the verdict on the

ASSIGNMENTS OF ERROR LIMITS REVIEW TO ground that the preponderance of the evidence ERROR OF LAW APPARENT ON FACE OF RECORD. showed that the collision occurred through a

Where appellant not only did not file a mofailure of appellee to have a light on his mo- tion for a new trial, but also failed to file torcycle. He testified that he carried a light assignments of error in the trial court as reon his motorcycle, and he was corroborated quired by Vernon's Sayles' Ann. Civ. St. 1914, by circumstances detailed by Santee and Rob- arts. 1612, 2113, appellant was not entitled inson. The jury gave credit to that testimo- to complain of the judgment except for error ny, and this court has no authority to disturb "in law apparent on the face of the record,”

under article 1607. their verdict based thereon. No objection was interposed to the submission of the cause 2. APPEAL AND ERROR Om843(4)—QUESTION to the jury, nor was a peremptory instruction

WHETHER OVERRULING EXCEPTION TO

TION WAS ERROR UNNECESSARY WHERE IF ERfor appellants requested. Upon what theory appellants base an argument that the man driving Zunker's car and his chauffeur friend trial court erred in overruling a special excep

It is unnecessary to determine whether the were disinterested witnesses is not apparent. tion to appellee's petition on the ground of ipThe fact remains, however, that the jury did definiteness, where, if held error, it must be not credit their testimony, and this court has treated as harmless within rule 62a (149 S. no authority to pass on the credibility of the W. x).

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PETI

ROR IT WAS HARMLESS.

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