Yellow Cab Co. v. Treadwell

BICKETT, Chief Justice. This is an appeal by Yellow Cab Company, Incorporated, defendant below, from a judgment in favor of Phil E. Treadwell, plaintiff below, for $1,775, for damages for alleged personal injuries and property damage resulting from a collision of automobiles on February 10, 1931, in the city of San Antonio. There were the usual issues of negligence, discovered peril, and contributory negligence, all of which were answered by the jury in favor of plaintiff. A brief description of the occurrence will suffice. West Josephine street, a thoroughfare, runs from east to west. Euclid street runs into Josephine street from the south practically at right angles, but does not cross it. On the night of the date mentioned, plaintiff was driving his car westward, and defendant’s driver was driving the cab in the opposite direction on Josephine street, when at the point of the opening of Euclid street plaintiff’s car, turning southward into the latter street, and defendant’s cab, proceeding straight ahedd, collided. The two drivers were the only eyewitnesses. The testimony of each of them was such as to exonerate himself, and to convict the other, of negligence. The physical condition of the two cars, with the principal external damage to the left front fender and wheel of plaintiff’s car and the left side of the cab, also gave rise to diverse contentions as to the cause and manner of the accident. Plaintiff claimed that the cab struck his car just inside the left fender in a sort of half head-on collision; while defendant asserted that plaintiff’s car struck the cab with the left front end of the car ramming into the left side of the cab. Those conflicts in the testimony, as well as in the physical circumstances, were resolved by the jury, as indicated. In the light of the foregoing statement, the assignments of error and propositions with reference to the sufficiency of the evidence to warrant the overruling of defendant’s motion for a peremptory instruction and the submitting of the special issues on negligence to the jury are overruled. The submission of the issue of discovered peril and the form thereof do not present reversible' error, because, if erroneous, the judgment would be sustainable, *278 if otherwise free from error, upon the findings of negligence. Upon another trial, however, care should be taken to embody all of the elements under that doctrine. The special issues tendered by defendant on the contributory negligence of plaintiff, with regard to having his car under proper control, yielding the right of way, and observing the law of the road, were properly refused because substantially .embodied in other issues. The witness Schodts, who repaired plaintiff’s car and testified to the damage thereto, was erroneously permitted, over objection, to testify from a picture (not displayed before the jury) of another wrecked automobile as to the nature of a head-on collision. But the error was not subsequently relieved by the trial court striking out the testimony and instructing the jury hot to consider it. The subsequent ruling and instruction of the court did not in itself constitute error; but it failed to neutralize the error of originally permitting the questions to be asked and answered. And the fact that 36 hours’ time intervened between the giving of the testimony and the ruling and instruction only tended to accentuate the original error. Defendant complains of the closing argument of plaintiff’s counsel to the jury, in discussing the testimony of one of defendant’s witnesses 'who had testified as to the appearance of the cab after tire collision, wherein he put the question: “Well, did he see this car, or was he thinking about another wreck he had seen, another yellow cab he had seen, that is what I want to know, was he talking about this particular wreck or another yellow' cab in a wreck he had seen?” The court, on prompt objection, ruled: “The reference to any other wrecks is improper and will be stricken out.” The effect of these remarks of counsel was, undoubtedly, to suggest that there may have been other cabs of defendant in wrecks. And this suggestion is to be considered in the light of the testimony elicited by plaintiff’s counsel from the witness Schodts, whose testimony from a picture in his hand with reference to some other head-on collision was before the jury for a time. The trial court properly ruled that both the testimony and the argument were improper. But the question remains as to whether we can' say affirmatively that the argument was without prejudice. This we cannot do after having read the entire statement of facts of 260 pages. Upon the contrary, with the issues closely drawn, there is every reason to believe that the matters improperly injected 'had an effect favorable to plaintiff and prejudicial to defendant. Texas Indemnity Ins. Co. v. McCurry (Tex. Com. App.) 41 S.W.(2d) 215. Other alleged errors, not necessary to be discussed here, will probably not arise upon a future trial. The judgment of the district court is reversed, and the cause remanded.