*1
(Tes.
exemption
thorities,
ters
not
attempted
municipality.
passed
provision
proviso
consistent
(cid:127)out constitutional
itself
a'
spect
ner v.
had the
islation
ing
power
cal
Antonio,
power
sarily
they might accept
itation
appellee’s
named
Constitution as
visions of
ineffective.
the
applied
the
ception
adopt
consider this
While
ers
have stated.
ered
orously
sought
toas
“Providing
Since the Constitution
Reversed
Since
take
we
ordinance,
its
of the
court was
pleaded
concern
for their
would
In the motion for
is to
some
legislation,
City
in our
we have concluded
contended
judicial
to the case
claimed to
matters
right,
110 Tex.
inconsistent
is true that
claim
to make a
confer on
with the
immunity.
article
grant
adoption
laws or
exercise a
inhabitants of the
matters.
and remanded.
undoubtedly
seen,
that no
would,
matter of
into
said
government, it contains a lim
not of such
state
would
in error
in so far
Our
petition,
contained
cognizance
that are not of
power
or
passing
618,
323. But
not of
authority
our
furnish
regulation
Legislature
plaintiff.
Constitution,
of the amendment
charter,
.general
The
law,
reject.
under
changes
with the Constitution of
the cities
Johnson
discretion
Legislature
§
Spears
state.”
it confers broad
to whether
It is
case.
we did
opinion,
our
that of the
vests the
rehearing it is
cities
Legislature
sustaining
the character
on the
thereof.
character,
shall contain
adoption
clear that the
legislation in
of the ordinance
consideration,
Legislature, any
Tex.
holding
legislation,
laws enacted
This
to
to confer
effected
merely provide
assent
cities therein
ally
power which
Constitution.
legislate
sought to
basis of the eral
City
power here
not consid-
22,
quoted
Martin,
exemption.
is without
legislative
purely
demurrer,
repeat
ordinance
give due
city,
fatal
We did
has
merely
be in-
in the before and after
neces-
fram
event
char
Wer
pow
and,
pro
vig
San
leg
au-
not
ex-
W.
it:
lo-
do
ing
ion, although
ligence.
ing
though
he states the facts on which he
pecially
3.
those
petent
value of the ear before and after the
damages awarded, as
2.
the
knows
favorably
harmless.
resulting from
damaged
held insufficient
and on this
damaged
be
automobiles renders him
opinion.
automobile
that
essary
voted
1.
which based.
tify to its
facie
mobile held
not error.
admissible when
@=184(2)
Highways Evidence
Evidence
Evidence
ineffective.
Evidence
An
In an action for
from an
propositions,
FOSTER v. BURGIN.
June
issues have'
damaged
to
he
witness to
the market value of new and
he could not
to
amount of his
where
admission of
in a collision
on'certain
discuss them
28,
as to a matter not before the
theory
@=474(19)
collision as
<&wkey;501(7)Opinion
value.
elaboration
in an action
he could not
insufficient.
<&wkey;489—
a collision on
prejudicial
in a
1922.
Oct.
Our
not before
a fact renders
to establish
appellant, or,
of driver
accompanied by
of error
testify
the owner of an automobile
qualify
highway
qualify
@=1050(2)
issues
11,
@= 1052(6)
so
original
—Evidence
determined
—Owner
we
owner of an
accident is
Unequivocal
determined
low, compared
may testify
collision
of the
further.
to such matters.
if he is familiar
of Texas. Amarillo.
qualify
in defendant’s favor.
do
in the admission of
collision
it.
a witness
unfounded,
not think it
to an
opinion
—Admission
a witness
—Admission
public highway,
foregoing gen-
of an automo-
jury, and es-
on a
Denied
error,
favorably
error,
bases
admissible,
automobile
automobile
as to the
nonexpert
contribu-
damaged
damaged
highway
the car
result-
where
where
prima
auto-
opin-
com-
neg-
stat-
with
Jury
nec-
tes-
Digests Key-Numbered
in all
topic and KEY-NUMBER
see same
<&wkey;>For other eases
*2
v BURG-IN
.
FOSTER
(244 3.W.)
!
$1,000.
for
sum of
In addition to
demur-
rer, special exceptions,
general denial,
and
Appeal
&wkey;>835(2)
and error
defense
—A
appellant pleaded contributory negligence
the'
urged for the
first time on motion for
in that
fail-
hearing is not available.
give
ed
signal
one-half of the road or to sound
In am action for
an automo-
approach,
plaintiff’s
of his
and that
that
the defendant’s
wife,
inexperienced,
charge
who was
witness’
value of the
qual-
driving
ear,
and was
was inadmissible because he had failed to
ify
testify,
and but for such
negligence
to so
ques-
and was not
the collision would not
oc-
any
not in
manner raise the
to furnish the
jury
curred. The case was submitted to a
tion
er
failure
of the witness’
upon special
issues,
the substance
the market on which he based his
locus of
findings being
(1)
material
as follows:
That‘
opinion,
first
and
cannot
plaintiff’s
the collision
de-
between
rehearing.
for
accident;
(2)
fendant’s ears was
ah
that
Appeal
&wkey;>232(2)Appellate
guilty
negligence
defendant
in the
review evidence is confined
court in
operation
car;
(3)
of his
that such
objections
.
saved.
proximate
was the
cause of the
rulings the trial court’s
review of
(4)
plaintiff’s
that
market value of
evidence,
or exclusion of
the admission
appellate
immediately
$1,550;
before the collision was
court is confined
(5)
immediately
that such
after
in the court be-
made
$500;
(6)
plaintiff’s
collision was
that
low.
any physical
(9)
injury;
wife did not suffer
294(1)
<&wkey;209((),
—Want
did
mother-in-law
not suffer
or
unless
evidence not
any
sion;
reviewablei
physical
injury
reason of the colli-
is raised below.
(12)
received
insufficiency of evidence to
want or
mother-in-law were not the
is not
the verdict
death;
(14)
plaintiff
of her
guilty
was not
by an
can be considered
fundamental error as
appellate court,
signment
of a
as-
the absence
operation
handling
of his car
at the time
excep-
aom bill of
of error based
of the collision.
for new trial.
or a motion
tions
[1-3]
first
contention in the brief of
appellant
is not
is that the
sufficient
Court,
Carson Coun-
from District
sustain
to
damages
the verdict as
the amount of
Judge.
ty;
Ewing,
W. R.
to the car fixed
Burgin against R. T. Fos-
Action
Fred
sum of
stated twice
testify
plaintiff,
From
ter.
able to
he knew
appeals. Affirmed.
fendant
immediately
of his car
the market value
be
immediately
fore and
Kimbrough
Kimbrough and Underwood
&
testimony on cross-examination is:
Jackson,
Amarillo,
appellant.
&
all of
Tru-love,
Madden,
Ryburn
Pipkin,
&
“Yes, sir;
I have
testified that
know the
Amarillo,
cars,
value
knew
and I still
hand
know
market value of cars.”
HALE,
Appellee,
appel-
J.
sued
Foster,
lant,
damages growing
rule is
witness states
to recover
out
market value he is
a collision between the automobiles of the
parties,
Ap-
N.
to state such value. P.
T.
&
turn
road.
(Tex.
267;
alleged,
App.)
pellee
substance,
Porter
Co. v.
Civ.
that about
Byrd
Smyth
Irrigation
(Tex.
day April, 1920,
Civ.
2d
were
traveling
opposite
country
v. Fain
157 S. W.
App.)
Davis
directions on a
county,
R.
road in Carson
biles
sion
careless,
their automo-
I. G.
and as
&
Co.
approached
turn in
v.
Paso, etc., Ry.
Jones
El
road a
reckless,
Smith,
App.
occurred
was due to
50 Tex. Civ.
negligent driving
988. These
authorities hold
appellant,
in that he was
faster
that a
who is familiar
than is allowed
and was
on with the
road, cutting
although
corner; opinion
qual
the left side of the
he-
not be able to
plaintiff
child,
wife,
ify
peculiarly
had his
and mother-
The first cases cited are
car,
applicable
in-law in his
and as a result of
to the facts of
in
lision,
negligent
not,
caused
the careless and
stant case. The
on cross-
appellant,
examination,
his wife and mother-
court,
injured,
in-law were
moth-
to his
from which the
Burgin
determine
resulting
death;
er-in-law
her
that he
know
tes
values
expenses
to-;
funeral
his mother-in-
tified
was not
asked as to the source
$200;
knowledge;
and doctors’
inquiry
bills in the sum
or means of
no
$1,-
investigated
his car was
the sum of
as to whether he had
suffered,'damages
purpose
ascertaining
in the the
of sec-
Digests
@=oFor other
cases'see
all Key-Nfimhered
KEY-NUMBER
and Indexes
(Tex..
pellant’s
the total amount was
$305.”
there.
back
tire,
bill. Since
the
frame of
inner
that.the
tion gin
not warrant
upon
worth,
$1,050
admissible.
accepted
gears
sion
course there
flooring,
after
very much,
er;
amount
paired
quite
wind
bent one
the
ones,
state the
the
seemed that there was
value was
a
purchased
only
long,
value of
it is based.
cident
as
market
what I
lows :
ondhand cars
the
TIis
giving
opinion.
had
aged
ther
ards,
G.
ders
new car.
sled.
“The
findWe
[4]
good
front
accident.
footboard;
-and
time
bought
810 miles.
in fact
on
X familiar with the reasonable market
Appellant
tube burst.
it
shield,
him
doubled
cars,
of its
Burgin
admissible
83
all
I
after it was
am
value of it
bit
car had been driven
the facts
I had
had
as
is further contended that
the seat. One
wind
favor.
the ear before the
inner
did not drive
fender
Faulkner
reasonable
spring
the time.
probably
it new.
of
witness,
ground.
testimony
Hupmobile
and I
or knew of
new,
Immediately
it
radiator;
admission
tore one
or sold
was no
tore
G.,
the
us
running
testified at considerable
court
as
It
cracked
shield;
he knew the market
tube—
testimony
urges
jury,
up,
kinked
loose,
to the amount of his
it and the car had
never
get
C.
states
It broke
repaired.
accident. His
when,
my
shifting gear right up
get
was
Immediately
18
I
such market value is
repaired,
erred
excessive,
& P.
We
bent the front
reversing
wood
market value
a new
car
Yes, sir;
costing
considered it
in the record
vicinity,
X
hanger
tends
had to have
S. W.
stated
of mine
was,
tire
kind
guided
that his evidence
$1,760,
pull
believe
a
the
after the
fixed
think
which he
good
away from
having
secondhand
was harmless. As
competent
about
lights put
quite
right
punctured,
frame;
on
just
it with
It
it was
permitting
connection with
$260. The
altogether
such sales
off the
had
glass
by the
nor whether he
because
but
was
was
it,
the reasonable
before the
I am
been run that
think,
submitted
810 miles. X
it
it
good,
grind
back
'
all
as
car
bit,
hanger
as
reasonably
except
this
judgment
practically
new
out of the collision
not worth lision
did before accident.
axle,
$305,
the scene
that the
been
it
proposi-
radiator,
in;
get
team
or dam
witness.
up.
good
was re-
the
and the
and the
able
R. &
as fol
length,
was a
that is
in the 10 miles an hour at
up
lacked
and it he
about
fend-
Rich
Bur-
tore
new
evi-
new right angles
I.
into accident was within
fur
ren
the
ap-
put
run
car 10 miles
ac-
Of about
on
as
remanded because the
Burgin,
jury
negligence
point
lision
and was on the
horizon.
collision the ears were locked
from the corner
it
kind of shifted
it
car was
side
hardly any,
but
and it
my speed
run
fore
more
drive,
left wheels
center
hold of
16 feet.
3 feet of
far to
prior
accident,
driving north,
of
turned
Burgin
and the
to the
*3
appellant’s
so,
dence with reference to the
“I was
[7] It
close
As
put
around;
[6]
the road. The
hit
was
center
way everything
around the
of the road. So
point
time
been; on the
stated,
than that.
3 or
my
and I
denied that
find no reversible
to the time of the
us,
my
corner,
wife
testified:
almost to the corner.
south
and to her mother
got
per hour,
harmless,
On Motion
He turned the corner
is not contended that
My
on
where,
was
I
My
car
on the left side
because
not base a
only remaining
right
insufficient
were,
thought
because I had
favor
had
insisted
steering
fence;
to the south. The
and mother-in-law
the
toad;
feet from
car
was
of
reduced
closer to the
from 40 to 60 feet in
and I
at
turf
corner for
back
post.
of
right-hand
My
Foster himself.
be reversed and the
but must
had
sideways,
Burgin
road,
I
really
had been
is affirmed.
of
practically
I could
I would
the center of the road
I
looked
contrary,
about
had
comer,
was,
quite
wife was
end
wheel about
would take the wheel and
by appellant
facts,
I
finding
the sun was near
very
at
bank.”
I
time. Prior to the time
time
When his
at
the corner
right-hand
the issues of
and from his stand-
not want to have
not been
had been
error in the
move
her,
at
establish
3 feet
reached the
not tell
thq
it was
contentions are as
was
judge
accident,
cause.
side of the center
if
driving,
fence. After the
the
was
my
of
the center.
the time of the
have been 15
he had
time
stopped,
just learning
Must have been
because I knew
of
brakes
together.
kind of turned
practically
my
driving west,
of
stopped
ear
I was
car hit mine
the
going
30 feet
exactly
appellant’s
post
even from
width.
side
it should
According
but
car back
found in
little bit
but had
crossed
record,
the col-
road at
—south
on,
corner,
and at
2%
of
fence,
I
right
mar-
about
west
over
Mrs.
was
how
but
had
the-
be-
my
at
It
oi
to'
If
OF
CITY
HOUSTON v. LITTLE
(244 S.W.)
just
just
App. 167,
Ret values of
before and
Tex. Civ.
writ of
it,
refused,
he failed to
error
<SE=For *Writ o£ error refused November