delivered the opinion of the Court.
Suit for damages was against Dallas Railway & Tеrminal Company, defendant, by Chester A. Oehler, the administrator of the estate of Benjamin A. Stephens, Sr., deceased, and by Stephens’ beneficiaries under thе wrongful death statute, as plaintiffs. Stephens was hit by a street car at a street intersection in Dallas, Texas, and died as a result of his injuries.
In response to sрecial issues a jury found that both Stephens and the operator of the street car failed to keep a proper lookout and that the nеgligence of each in that respect was a proximate cause of Stephens’ injuries. Both were otherwise absolved of negligent conduct. Thе jury found that the injuries were not the result of an unavoidable accident and that the operator of the street car did not discover that Stephens was in a position of peril prior to the collision. The trial court entered judgment on the verdict for the Railway & Terminal Company. The Court of Civil Appeals reversed the judgment and remanded the cause for retrial.
Immediately following the accident the opеrator handed to the passengers on the car slips of paper on which to write their names and addresses. Five passengers filled in and returned the slips to the operator. These slips passed through the hands of the claim agent and other company representatives and found their way into the file of the attorney representing the Company on the trial.
On the morning the case was to go to trial plaintiif’s attorney had a subpoena duces tecum issued for L. W. Tate, Executive Vice-President of the defendant company, commanding him to bring to the trial all records of the company reflecting the nаmes of passengers on the street car, "particularly all tickets turned in by passengers of said street car bear *490 ing their names and/or addresses.” Defendant’s counsel protested the subpoena and the court ruled that the witness need not appear. There is no reason to believe there wаs any occasion for the appearance of this witness except to produce the slips, and they were not in his possession.
When the trial bеgan plaintiff’s attorney called defendant’s claim agent as a witness. The witness testified he had seen the slips of paper handed to the operator and that they were then in the possession of defendant’s attorney at the trial. When asked to state, if he could, “the names of the people whо did turn in cards and that you all know about that were present at the scene of this acident,” defendant’s counsel objected on the ground that “those matters are privileged” and that the testimony sought was “irrelevant and immaterial.” The objection was sustained. Defendant’s counsel was then called as a witness and testified that he had the five slips of paper in his possession. He objected to producing the slips of paper on the ground of privilege, and the objection was sustained. The operator of the street car testified but he did not remember the names of any of the passengers. None of the рassengers were called as a witness.
Petitioner asserts here that the rulings of the trial court in respects above mentioned, whether tested by common law rules on discovery practice or by the provisions of Rule 167, Texas Rules of Civil Procedure, were correct, and that, in any event, respondent has not discharged his burden of establishing that the rulings, if erroneous, were “reasonably calculated to cause and probably did cause the rendition of an imрroper judgment” so as to entitle him to a reversal under Rules 434 and 503, Texas Rules of Civil Procedure. Respondent insists that the legal problem with which the court is confronted is not a problem of discovery but an evidence problem; that our only question is whether the evidence sought was material and admissible on the trial. This insistence may well stem from the fact that respondent made no effort, either before or during the trial, to secure the names of the witnesses or the sliрs of •naper on which they were written by complying with the proisions of Rule 167. For opinion purposes we will therefore ccept respondent’s contention that the problem is an evidence problem and will deal with it on that basis.
A trial court will not be held to have erred in excluding ■ roffered evidence unless its admissibility is established. To be imissible evidence must be relevant and material; it must tend *491 to prove or disprove some issue in the case. 17 Texas Jur. 338, Evidence Civil Casеs, Section 106. There is nothing in this record to establish the relevancy and materiality of the names of the passengers in the car. Respondent does not claim that a predicate was being laid for testing the credibility of the witnesses being questioned, or for impeaching them. Neither is any other reason suggested fоr contending that a mere list of names had any bearing on any issue in the case. What respondent hoped for, of course, was to require that the names of the passengers be divulged so that they could be called as witnesses in the case. The ends of justice might have been better served by calling all of the known passengers to the witness stand. As to that we cannot say, for we have no way of knowing whether any of such passengers could have or would have given testimony of value. The fact that the ends of justice might have been better served by calling all occurrence witnesses does not, however, make their names relevant and material as evidence.
In support of his position respondent cites Robertson v. Virginia,
On the record before us we cannot agree with respondent’s contention that the trial court erred in excluding the tendered evidence. We know from our own experience that testimony as to the names of persons present at thе scene of an occurrence which thereafter becomes the basis of a lawsuit is often admitted without objection, but that does not mean that а trial court errs when, in the absence of a showing of the relevancy and materiality of such testimony, it excludes it. Respondent has presented no othеr basis for reversal of the trial court’s judgment.
*492 We are not to be understood as holding that respondent could have secured the list of names by complying with the Rules on discovery. It has not been necessary to decide that question.
The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.
Opinion delivered November 21, 1956.
Rehearing overruled January 9, 1957.