*1 any. “If benefit As is entitled to and we are unable to discover we this action from its contributions Roaz v. understand case White’s 481, Stores, it Railroad fund is Auto Retirement only, provided in statute. at page (7, set-off constitute the in- 8), to employer appear Without the an must aid of statute it struction reversible up mitigation unnecessary can not set that it is prejudice calculated to and is injured employee in- in a tort action one before the parties of the in- demnity source, from a collateral jury. might have charge We think the compensation or or under surance benefits properly been eliminated on Act, Compensation Workmen’s thought unneces- defendant. is It where the defendant has contributed sary determine whether the error fund.” reversible or another trial harmless. On question likely arise. will C.J.S., Damages, Court The cites § 648, 649, pages said, compen- is indicated, wherein it For the reasons heretofore Compen- sation received from Workmen’s re- of the trial will be sation, Vocational Rehabilitation Federal versed another and cause remanded Act, Employers’ Compensation Federal trial. Act, pension be out fund damages. mitigation deducted in directly case, supra, think Peeler We in au- virtue of introduced, cited, thorities and the was inadmis- prejudicial for which reversal sible and be directed. must alleged improper complains Plaintiff Inc., LINES, v. PRIETO. EL PASO CITY counsel, but defendant’s No. 4427. likely trial, it is not view of another again deem argument would occur we Appeals of Civil of Texas. El Paso. pass upon unnecessary to that issue. it July 12, 1945. Since we concluded Aug. Rehearing remanded, we Denied must reversed and case dispose com it deem advisable to charge. against the case plaint following special issues submitted on a case definitions the usual character, the court further jury as follows: regard- railway company is not to be “A safety em- an insurer of ed as ordinary compelled to ployees, use but reasonably providing care in safe places equipment, appliances employees their vo- their can follow where cation.” complaint gen- is this constitutes question charge. There is but eral it is a charge, but under general Rule Procedure, fact of Civil the mere Rules general charge consti- does not author- it reversible error. tute general giving of a izes special issue case charge in a neces- properly pass sary to enable verdict upon render a on the issues. suggests this instruction is Plaintiff apparent.
necessary. We think He suggests injury presumed. will be further suggest any probable injury, He does *2 Brooke, Paso, appel- Brown & of El
lant. Knollenberg Holvey Fred C. Wil- liams, Paso, appellee. both of El McGILL, Justice. Prieto, Appellee, appellant, Paul sued Lines, Inc., North, and R. B. personal injuries recover suf- by appellee’s fered wife while she was
passenger on one buses. The B. North such intersec- approaching between from collision injuries resulted North, tion from within such distance automobile driven bus and 26, 1944, colli- reasonably danger the to indicate a August negative. and sion was answered in the Yandell Boulevard Paso, *3 Campbell City in of El the Street Findings judgment against on the which and, based Trial was a Texas. prior (11) R. B. North is are: based Just issues, special answers collision, keep to the North failed to both appellee against entered was $2500 person a of lookout for other vehicles ap- has not North. North and kept ordinary prudence would have under pealed. circumstances; the (12) similar same or Campbell proximate Street such failure collision; cause of the Boulevard and was a Yandell City (13) fifty feet in width the of approximately bus the Paso are each Camp- respective Yandell entered curbs. Lines the intersection of between their is inter- bell Street B west and before the defendant R. runs east and Boulevard angle approximate right North’s automobile entered said intersec- sected at an tion; Street, (15) and runs north failure the Campbell which of defendant North a yield Appellant’s travelling right in the way bus south. of to the bus driver collision; proximate Boulevard was westerly on Yandell direction a cause of the and (16) operator driving from the east entered intersection the act the of the bus in which along North’s automobile the struck bus Yandell Boulevard was into the southerly direction Campbell a travelling was in intersection of Street was not the intersec- Campbell entered the proximate and sole Street cause of collision. automobile tion north. The from the The amount fixed at of near end. struck bus its rear $2500. impact little east of was a to the of An City of of El ordinance about Campbell and line of Street center provides: in evidence. It introduced curb line of of north fifteen feet south Approaching “Section 20. Vehicles Boulevard. Yandell Entering Intersection. A. The of driver Findings, which form basis approaching a vehicle yield shall an intersection City judgment against appellant, El Paso right-of-way vehicle which to a Lines, defend- (2) are: As the bus already entered the intersection from has Lines, ant, approached the El Paso highway.” provides pen- a different And a and Yandell Boulevard intersection of for violation alty thereof. Street, rea- Campbell have been it should operator of the bus apparent to the sonably Appellant presents points the ef high degree of of care in the a exercise found negligence fect of acts North, approach- R. B. negligence remote and the within ing right intersection from the in entering North in of a reasonably indicate such distance as to city in violation ordinance and of cautious, collision; danger (3) very a right way the bus were yielding the competent prudent person operating and producing direct” acts and “the last approached intersection would bus “last direct” cause and collision and North; yielded right way ap- resulting injuries thereof and of pellee; operator (4) part failure on bus the bus driver act of yield right way North a was remote connection with accident proximate collision; (7) cause of the therewith, had no causal connection prior collision, to the driver failed being broken such new the connection keep lookout for other vehicles as independent of North. intervening acts cautious, very prudent competent per- a points. The substance overrule kept son would have under the same or findings is that of the above circumstances; (8) similar such failure keep for other a lookout the bus driver collision; proximate cause of and his just prior to the collision vehicles (17) driving the act of North in his auto- way right to North yield failure to Campbell along mobile Street the in- into proximate negligence which was tersection Yandell Boulevard and that fail the collision North’s cause of proximate the sole cause of the collision. lookout for vehicles keep a ure to collision and Question just prior to the inquiring No. whether as the way right approached yield the the intersection it was rea- ordinance, city apparent in violation of bu# sonably operator R. G2‘. that “the last cause before nearest the intersection entered having leads” it, and a connected succession of events negligence automobile entered elemen it. That such is not the law proximate cause of the collision. tary cited the above is demonstrated defining charge portion That reason, bus driv For like authorities. cause specifies “proximate cause” negligence yield right er’s failing to “unbroken proximate cause must be a way proxi North have been independent intervening new though mate cause of the collision any new plead Appellant did not cause.” negligence prior to North’s a de independent cause as intervening and negligence failing yield Im request any thereon. issue fense nor un to the bus driver. fact cause, plicit findings proximate in the *4 city der the ordinance the bus driver proxi court, and on sole defined right way of relieve him cause, any new mate is the exclusion of negligence failing keep in lookout to a any If independent cause. intervening and to failing yield right way or of in to independent intervening of new issue North, when have discovered he should evidence, is such raised cause was yield right going that North was to adversely to determined sue was Martin, way of him. Tex.Civ. to Lewis v. was findings. The evidence by the above App., (W.R.); 120 American S.W.2d 910 findings that both ample to sustain the Abraham, 94 Grocery Co. v. North driver and negligence of bus (W.D.). S.W.2d 1231 An act accident. proximately caused the findings that both the driv bus cause may proximate be the negligence of negligent er in the North were not the nearest injury, although it is of indicated, respects negligence and that such of connected succession cause in a last proximate a of the col of each was cause Texas which lead to a result. events findings lision are tantamount Bigham, 38 S.W. Tex. R. Co. v. 90 P. negligence concurring prox each was a Tips, 162; Co. v. 125 Refining Phoenix the accident which result imate cause Page injuries appellee’s in wife and ed Sec. question. foreclose the in negligence fail bus driver’s Appellant’s remaining points com keep vehicles ing a lookout for other plain it a grant the court’s failure to proximate may been cause of the have improper argument because of new trial though negligence even oc collision ver plaintiff’s and because the counsel prior fail negligence curred in to North’s Knollenberg, one Mr. dict excessive. way yield right ing to the bus counsel, argu opening in plaintiff’s already which had entered the ment said: ordinance, city in violation of headaches all “Suppose you were to have failing keep a negligence in North’s you there.” Suppose your were life. been lookout other vehicles collision, im highly proximate that it cause of the The court stated jury suggest to the though negligence prior proper occurred for counsel to place in the situation failing to themselves negligence they bus in driver’s jury yield injured party right way The fal and instructed to North. any purpose. lacy proposition the remark causal con not consider obviously a direct negligent nection between the remark was Such the case from keep jury either the North viewpoint, put i. themselves improper lookout and the collision is broken e. is and answer the place plaintiff’s mere intervention of the other’s failure to in the favor, they if proximate them her keep a which in lookout was a sues submitted to in apparent. issues the collision her to answer cause of Such would want reversed positions were proposition recovery in if their defeat their favor the members jury every negligent case she was This plaintiff the case. party jury a lookout of one keep collision of in Fam subsequent appeal was condemned negligent fail sort of S.W. Wagley, 140 Tex. keep lookout, brough ure in that opinion is stated latter 2d 478. It proximate if such failure were a such a not of cause that such recognize collision. It would case effect could not harmful proximate
only one
cause
nature that
of the collision
Williams,
said:
of time and
would have been
yield
to such
there was no
Such instruction was
ment of counsel.
promptly given.
termine
the case.
court
highly
there
consideration
would
him to
effect
tention
constituted
torney, stated:
of the bus
sustain the
that unless
sel.
Mrs. Sanchez
entirely, that counsel
to North was
to him.”
regard the statement as
“I
The court
Whereupon, Mr.
“Their own
On
“There is
give it after
Puckett,
witness
jury
object
the court’s
talking
talking to the
standing
not so
been
that such
recalled
objection,
bear him out.
improper. We
During
that
Mr.
and that
instruction
record.
proceed.
instruction.
from the
Williams then
they
been
such
another
removed
Obviously, such statement
finding to effect
reversible
the bus
Williams also stated:
inflammatory that its
they recalled
thereupon
negligence.
absolutely no evidence
there, holding
I have never seen
there
evidence
witness,
should
that
him
proper
evidence
here a considerable
statement was
testimony,
The instruction
be and was
plaintiff’s
the court
Appellant makes
required
testimony and instructed
manner
Appellant’s
more
evidence whether there
and refusal
bus driver is
Appellant
closing
driver.)
standing there
Brown, appellant’s at-
effect,
yield the
by proper
was no
*
given here.
error.
The court
His
disregard the
request
Mrs.
instructed
plaintiff's
coming from
think, however,
that
**
stated that
anyone.”
effective had the
not a
they would
testimony from sel.
that
basis
that
counsel’s state-
statement
argument,
on to the
such evidence
Mrs. Sanchez
Sanchez,
”
However,
insufficient
form of
disregard it
jury
would have
instruction.
highly
the record
witness
(referring
instructed
borne out
no doubt
removed
harmful
counsel,
entitled
talking
he
length
to de-
state-
coun-
court
their
jury you
con-
who
rail,
that
that
dis-
felt
im-
to
ment.
indicated
in the
ter
harmful
duct of
that bus whose names
have, or the names of those whom we
not
to.
tify
men,
ed
contrary to the evidence.
thermore, there
fact that
didn’t
evidence is in that
respect.
man more
we have the names
for
good substantial business
gument
this evidence it shows there were
any
evidence in the record. You
objections ?
respect,
for
it.
say
conducting
standpoint
When the court instructed Mr. Williams
“Mr. Brown: “The
“Mr.
“Mr. Williams:
“Mr.
“The Court:
“Mr. Brown:
“Mr. Williams:
“Mr. Williams:
proceed,
this,
people
yourselves
office than
yourselves
evidence
with
must
Tipton
* * *
kind
any
form,
[*]
from a
produce here,
please.
the erroneous
be whole lot better
absence of
We think the instruction as
you
and I haven’t seen them here.
Brown:
Williams: All
and will
Court: You must recall
satisfactory
and unless there is
effect that
reference
statements made
the court’s
there were
disregard
on that
some of those must
admitted he had more
affairs
people
[*]
proposition than
and do
used to
practicable
I
what the
what the evidence is in this
following
is no
Gentlemen, you
call
There is no evidence
surely
sufficient to
take
We
bus and
I
I
whose
respect
17 he had
the statement of coun-
to him.
are
[*]
* * *
your
say
want make
statement.
handling
evidence to show that
at least
except
the facts.
pass
judging speed
right,
evidence is in
occurred:
supply
responsibility
common
have been creat-
people,
men
attention to
names
position
have.
on such
*5
for
you
[*]
such evidence
remove
witnesses
I
I am
counsel
here,
must
are
that.
that,
must
its manner
yourselves,
practicable
that under
have been
people
what
and,
got
we don’t
premises
want of
cards
* *
sense a
used to
my
to tes-
[*]
given,
things
lovely
and I
going
if the
recall
recall
away
mat-
It is
least
con-
Any
that
that
fur-
are
for
ar-
*
dence,
guess out
which it
would be and I venture to
was.
court’s refusal
ladies
of 35
good
on
request
unqualifiedly
some
people
found
in-
they
could
jury
structed the
they had tried to.
it would
substantial man if
have constituted error. The instructions
that.”
“Mr.
Brown:
given required
jury
to determine from
argument,
At the
close of
the evidence whether
statement found
duty
there was
support
in the record before
con-
could
City
defendant,
part
on
Lines,
sider
and were
sufficient to remove
wit-
bus as
passengers on its
to call
harmful effect may
have had.
pas-
produce
nesses
failure to
and its
sengers should
be considered
Both the argument of Williams
ar-
disregard the
purpose
to the effect
people
some of the
on
sought
gument
counsel which
plaintiff’s
prac
must have
from a
been men who
matters
impression that
create an
standpoint
pass
tical
were more used to
them
should
defendant,
considered
such things
he
whom had not seen at the
City
The court
Lines.
El Paso
trial and
remark (apparently
addressed
exception
qualified appellant’s bill of
appellant’s counsel):
objections?”
“Any
plaintiff’s
stating
argument
improper.
in
only
reasonable
counsel, Williams,
it related
in so far
ference from the
was that there
pro-
production
or the
pass
were men on the
“more
used to
defendant,
passengers on
duce
El Paso
things
this” whom
witnesses,
Lines,
City
produced
and would have
their testi
part
plaintiff’s
effort on the
obvious
mony
subsequent
been favorable to
it.
argument of coun-
reply to the
counsel to
sel
“good
referred to such men as
Lines,
* *
*
El Paso
substantial
men
used
business
evidence estab-
this issue to effect
speed
conducting
judging
affairs of
passengers
lished that in addition to
*6
(who) would be a whole lot
wit
better
witnesses
who testified as
proposition
nesses in
kind
this
than
wit-
of some other
it had the statements
lovely
would
no
ladies
be.” There was
fully
accounted
whose absence
nesses
thirty-five
evidence that
pas
from
not have
statements
and did
the
i.t
sengers
testify
men
qualified
were
better
names it had
passengers
whose
than the
who
that
testify
did
witnesses
the
the
of all
it did
names
that
their testimony was available.
Inferences
riding
occasion
passengers
on its
on the
indulged
as to
facts
would have to be
question.
to warrant the further inference
that
testimony would have
ap
been adverse to
appel
There
no evidence that
pellant.
thirty-five people who
lant
the names of
had
Co.,
the
were on
at
time of
accident.
Proctor v.
& N. E. R.
Cisco
Tex.
Com.App.,
that he did' not
The bus
testified
65
Co.,
preju
Equipment
making
and was
in Smerke
Office
v.
236,
302,
Sproles
138
Rob
Metropolitan
Ry. Co. v.
Tex.
S.W.2d
dicial.
Str.
Freight
not Motor
erts,
Long, 140 Tex.
Appellant’s counsel did
v.
supra.
Lines
494,
642,
objections to
168 S.W.2d
specify
of his
while each
ground
press
complained
sepa
he
matters
nor
argument or the remark
did
of considered
error,
procuring
rately might
regarded
exception
harmless
yet
whole,
waived
Appellant
when
ruling
therefore
considered
thereon.
harmless;
argu not be
objectionable
treated
character
other words
Ft.
indicated.
record
ment
above
of in
and remark
shows
number
Tex.
Ry.
Bryant,
improper argument,
stances of
v.
in
Worth
R. G.
Co.
one
no
v.
being
reversal,
Holt
stance
Civ.App.,
(W.R.);
210 S.W.
sufficient to call for a
yet
(W.
Collins,
all
Tex.Civ.App., 131 S.W.2d
together may
instances taken
do
D.);
Pages
825 and
Sec. so.
Also,
shown
affirmative error is not
In
opinion,
our
verdict
objections
court’s failure to
excessive.
carefully
We have
considered
specifically in
ruling
since
thereon was
all
point.
the evidence on this
To
it all
set
El
Compensation Ins. Co. v.
voked. Texas
unduly
opinion,
out would
prolong this
al
lison, Tex.Civ.App.,
loc. cit.
ready
long.
Suffice it to
too
Tex.Jur., supra.
314 (W.D.);
appellee
evidence was sufficient to show that
remark were
Unless
forty
healthy,
was a woman
years
age,
inflammatory
in
prejudicial
that no
so
employed
operator
as an
a bookkeeping
cured
from
struction
machine
able
to do work
her
around
error
waived such
house
accident;
at
time of
*hereto,
interpose objections
its failure to
accident,
a result of
received
she
specifically pointing
the court
out to
on the
bruises
left
of her
about
side
head
grounds
it now relies.
error
ear,
her
suffered
severe headaches for
Acker, 134
138 S.W.
Ramirez
time,
long
and had
rotating
trouble in
her
2d 1054.
pain
arms and
in her back and shoulder
the error could
have concluded that
anything
could not
heavy
lift
at the
instruction;
by proper
been cured
;
(February
1945)
time
trial
the close
that the instruction
also
she
changed
pain
job
her
because the
effect,
harmful
cure its
prevented
in her back
her
operating
*7
especially
qualifica
in view
of the
the bookkeeping
machine
she
argument
tion
of the bill to effect that
heavy objects
not lift
or work
around
was invited. We have
concluded from
also
house
since
accident. While
there
an examination of
entire record that
x-ray
medical
effect that
error
no reversible
is
bill
shown
injury
showed no broken bones
exception.
disapprove
ribs,
also
effect that there
appellee’s
re
conduct
injury
be
cartilage
where the
and ribs
reaching
flected
the bill.
In
our con unite,
x-ray
which the
would not show
clusion,
are not
we
unmindful of the nu
that examination
rigidity
showed
Supreme
merous decisions
Court
neck;
cartilage
muscles of
that the
holding
procured by improper
that verdicts
point
lung
and in
left
was bent
permitted
nor
will
be
to stand
jured;
may
symptoms
she
get
over her
we overlooked the
enunciated
soon or
not.
In
of all
view
the testi
Blackwell, Tex.Com.App.,
Bell v.
283 S.W. mony,
light
appellee,
in a
most favorable to
long
and adhered to in
line
of de
we
re
cannot
verdict was the
Employers’
cisions as recent
American
passion, prejudice
improp
sult of
or other
Kellum,
Ins.
(W.R.),
Co. v.
motive,
er
Page
Sec.
improper argument
effect that
has
when
support
or without
in the record. Texas
made,
been
complaining party
the adverse
McKinney,
Motor
Coaches v.
is
entitled
a reversal of
TEXAS, OKLAHOMA MEXICO NEW Inc., COACHES, WILLIAMS.
No. 4424. Appeals Paso. of Texas. El Civil
Aug. 2, 1945.
Rehearing Oct. Denied