Northern Texas Traction Co. v. Caldwell

SPEER, Associate Justice. This is a damage suit instituted by Helen Caldwell, a minor, through her next friend, against Northern Texas Traction Company and St. Louis and San Francisco and Texas Railway Company, to recover for personal injuries received by her in a collision between a car of the traction company and a train of the railway company at a public crossing in North Fort Worth. It was the same collision out of which grew the case of St. Louis and San Francisco Railway Company v. Knowles, decided by us on November 10, 1906 (99 S. W. Rep., 867), which case see for a statement of the details of the accident. It will be unnecessary to discuss all of the assignments of error of the appellant St. Louis and San Francisco and Texas Rail *377 way Company in this case, since most of the questions raised were decided in the ease referred to. In the present, case the plaintiff recovered a judgment against both defendants and both have appealed. James, the conductor of the traction company’s car upon which appellee was riding at the time of the collision, was permitted to testify over the objection of the railway company, that before approaching the crossing he was on the rear platform and remarked to a passenger, “I will go to the front and see that everything is all right so we will get across the railroad.” Another witness was also permitted to testify that he was sitting in the back vestibule of the car on a stool, and just as James, the conductor, was about to go forward, he said to witness: “I must go through to the front of the car and look out for headlights and engines.” It is insisted, and such was the objection to the evidence, that this constituted no part of the res gestae. But we think otherwise. If the remark of the conductor was made it was within a few feet of the crossing, and within a few seconds of the time when the accident occurred, and was, therefore, a verbal act descriptive of the conduct of the conductor in going forward to look for trains. The very nature of the remark excludes the idea of fabrication. The railway conductor, Davis, while upon the stand was asked, “When a street car is approaching a crossing, when will it appear that it is going to stop? When would it become apparent that there was danger of a collision when the street car, coming on Main Street, like this?” It was objected that this called for an opinion of the witness, and we think it did. The answer was properly excluded. The same may be said of the proposed testimony of the witness Boyd. This witness and others were sent by the railway company to make a test at the scene of the collision for the purpose of testifying in the case, and upon the trial was asked to state “whether or not it would be possible for a man standing thirty feet from that crossing, as you and Mr. Vinson were standing, listening for the train, and not hear it as it approached the crossing.” The witness and others had been permitted to detail every fact connected with the experiment and this was quite as far as it was proper to permit him to testify. Whether or not it was possible for a man not to hear the train is certainly a highly speculative opinion. The following rulings are made upon the appeal of the Northern Texas Traction Company. The court committed no error in sustaining an exception to the traction company’s plea over against the railway company seeking reimbursement, in the event of its being held liable to tile plaintiff. This is one of those cases -in which the liability of both wrongdoers appears to be primary and concurrent, and one in which neither should be entitled to contribution or reimbursement as against the other. The verdict imports a finding that the negligence of each of the appellant companies proximately caused or contributed to cause appelleé’s injuries, and each is therefore primarily liable. Indeed, such was the ease made both by appellee’s petition and the traction company’s plea over. (Galveston, H. & S. A. Ry. Co. v. Nass, 94 Texas, 255.) We do not consider appellant’s second assignment of error, complaining of the admission in evidence of a statement made by the witness Reddick on the day following the accident corroborating his statement *378 on the trial, for the reason that we do not know what objection was made and sustained. Neither the brief nor the bill of exceptions in the statement of facts informs us. There was no error in permitting the witness Davis to testify that a street car can be stopped ip a much shorter space than a steam locomotive or a number of cars, as against the objection that it was a conclusion, since the witness was an experienced railroad man and his conclusion was upon a question about which he might properly express an opinion. Besides, the fact is one so obviously true that his answer could hardly strengthen it before- any intelligent jury. The same witness was asked: “State whether or not in your experience as a railroad man, when a railroad train, is approaching a crossing and a street car is approaching the same crossing, so that it would appear that one or the other would stop, you ever knew the train to stop to let the street car pass.” To which he answered, “No.” We think there was no error in permitting this question and answer. The witness had testified to the general custom in this particular, and the testimony quoted serves only to emphasize the custom by showing that the witness never knew of an exception. It is not proving a custom by testifying to isolated instances, as appellant insists. We think it was proper to allow the railway company to prove that it was the custom, when a train and a street car were both approaching the crossing, for the street car to stop for the train. At any rate, the objection made to this testimony “that the witness had shown that he never saw the car until it had passed across and therefore could not answer the question,” was hardly applicable and was properly overruled. The traction company sought to have the court to instruct the jury that as between themselves that company owed toi the railway company the duty to exercise such care to avoid the collision as a person of ordinary prudence would exercise with reference to a similar matter under similar circumstances. This was properly refused, since there were realty no issues between the two defendants. Neither sought a judgment against the other, nor owed the other any duty whatever. The liability of each depended upon its breach of the duty it owed to the plaintiff in the case. It is next insisted that the court erred in charging the jury as to the mental pain and anguish to be suffered by appellee in the future, for the reason that there was no evidence to warrant such charge, but we rule against appellant upon this point. It is unnecessary to detail the evidence upon which we malee the ruling, but there was testimony tending to show that appellee had not entirely recovered from her injuries, and that she might, and probably would suffer both physical and mental pain in the future. Neither do we find any fault in the court’s definition of proximate cause. There is ample evidence in the record' to support the verdict of the jury, both as to the negligence of these appellants and the amount of damages awarded to appellee. The judgment of the District Court will be corrected, however, so as to direct that the money, when paid into court, shall be held until the minor becomes of full age, or has a guardian. (Texas Central Ry. v. Stewart, 20 S. W. Rep., 962.) *379 As reformed, the judgment of the District Court is in all things affirmed. Reformed and affirmed. Writ of error refused.