*1 Goslin, indisputably to an due “The death of opium morphine self-adminis- overdose tered, theory explained of ac- must is true It cident or intentional suicide. presumption attaches of law that former theory, presumption cannot hut this contrary.” prevail against Heath, su Ins. Co. v. American Central “Presump pra, language: the court used disappear [of suicide] tions when confronted with facts.” carefully rec- We have examined entire light for re- ord motion hearing, and reason revers- we find no trial court. Appellant’s rehearing over- motion for ruled. TRACTION CO.
NORTHERN TEXAS et al. THETFORD
No. Appeals Fort of Texas. Worth. Civil
Court of 22, 1930. March 10, 1930.
Rehearing May Denied
907 up ed her automobile -to 18 miles an about doing hour. her the left wheel of just automobile extended either on over and, just the tracks, west of line the car Cantey, Hanger McMahon, & of Fort passing point she was indi- the Worth, appellant. for point collision, cated car, the street the the of speed, having came checked its Oraik, F.S. Houtchens and both J. Harold line, onto the main the street ear the of northwest corner Worth, appellees. of Fort for of au- the back end the tomobile about where the back fender was CONNER, O. J. located, -boy and the car knocked off of the against This suit was instituted North- the street, very seriously onto the where he was Company by ern Texas Traction injured. B. Thetford wife, Thetford, and his Eena for themselves plaintiff, alleged, among The and as- next -friends Thet- of Freddie Arthur part operator on the of of the the ford, boy years age, a nine dam- of to recover traveling street car in at an unlawful rate injuries ages a be- received at collision speed, failing keep proper lookout, tween an automobile driven Mrs. Thetford operator and further that the discovered the company. and a street car of The defendant ears from the business defendant the plaintiffs condition of the failed company operates line apply to exercise due care the means at city district his command to avoid the collision. along outlying of Fort Worth to the districts Hemphill company extends pleaded, over The street.' line The defendant besides south, question general north denial, contributory and the accident in demurrers Hemphill part parents occurred in the 2500 on block street. on the" of the of the boy permitting In that block there is a switch constructed running him ride on the purpose permitting (cid:127)board, pass for the cars street car pass opposite they did, etc., pleaded directions to one another. as and also that the boy negligent evidence Plaintiffs street was the effect that riding minor was run- north, question proceeding ning board, failing mother, car was to warn his automobile, -it proceeded approach entered the south end the switch the driver of the along north the tracks the of the street etc. point where where side until it reached east the special- The was submitted to a line, again entered main ear “negli- issues. The court defined the terms time, the accident occurred. At the same the gence,” “ordinary care,” “proximate cause,” Thetford, plaintiffs, Mr. Mrs. accident,” appropriate and “unavoidable -with years age, young daughter, 12 or 14 of in were charges upon proof, burden in- riding loaded with they structed the were exclusive goods; son, Freddie household judges credibility of the witnesses-and Thetford, riding running on the board weight given testimony, etc. pro- on the east side. The car was the car ceeding 'The answered motorman was speed át a south 15 miles using ordinary keep care to a lookout as hour. A short distance north and west point the he drove the street car out the switch for street ear where the entered north, vehicles store, grocery main line there was located a in front of which proximate failure cause parkway. From injuries Thetford; to Freddie that the boundary along parkway line south being rate of the street car driven Hemphill curb of street were num- (cid:127)the west as it went out -of the north end of the switch parked, leaving distance ber of automobiles proximate was the parked automobiles and between the injuries; cause of that the motorman saw the street car west line of tracks about- plaintiffs’ automobile before the contact feet. it, car of motorman saw the did not use street after the plaintiffs’ plaintiffs’ automobile, effect that is. passed ordinary parkway the time at about care use all the means grocery store, yards some 30 or 40 command from at his consistent with his own and safety point passengers’ collision, the switch where entered the main his to avoid the line, ford, automobile, the driver of the Mrs. and that such failure to use Thet- entering switch; saw the street car cause of was a point boy. within that when the middle some 30 feet further answered that Mrs. Thetford, driving the street car was collision about who was the automobile coming north, accident, prior switch and she exercised stop approach keep a lookout for the she to de- swing left, ear; have time miss street fendant’s that Freddie Thetford automobiles, get beyond riding parked running the was not point line, immediately prior collision; of intersection of switch and main board making speed- parents and in the effort do so act of the of Freddie in al- mention, many which, ings lowing Mm to ride on tlie board too numerous to question prox- however, by proper tbe occasion in was not tbe sole become immaterial dis- position- following questions, cause of thrown wit: imate *3 neg- tbe Mrs. that Thetford (1) Does the material record disclose ligent pass point col- of relating error to the issue submitted or evi- lision in which at the time and the manner relating dence fense that the guilty de- introduced did, negligence was not but that such minor, Thetford, Freddie collision; proximate sole that cause of the negligence, of evidence suffi- is the Mrs. Thetford rate of at which jury’s he cient to sustain the that verdict driving question was was not cause of the was not the occasion guilty negligence? was not of proximate nor was it (2) guilty of If the minor himself was not collision; Thetford that Mrs. negligence proximately contributing his driving nearer not injury, ents, par- negligence his then was Hemphill place of west collision; street at the curb particularly Thetford, that of Mrs. an was not and that the collision jury, imputable found to their minor accident. unavoidable son, Freddie, deprive right so as to him of a rendered, Upon the verdict so the court recovery? to a judgment plaintiffs, entered Mrs. Mr. that (3) peril, Was the issue of discovered Thetford', nothing by take reason of their objectionable? submitted, independent against of action asserted cause (4) appellant present any Does material company, next the defendant but that as objection'relating to -the issue of discovered Thetford, son, friends of their Freddie peril, and is the sustain- company evidence sufficient to for defendant and recover of the the verdict of the on that issue? $7,500, the with interest day of Freddie the sum of benefit legal at the rate from the 9th It seems evident if the minor inwas February, 1929. From operator if of the street car dis- entered, Texas Traction so pany the Northern Com- perilous position in covered his duly appeal. prosecuted has the accident the exercise of ordi- avoided nary command, with the with a behalf of means at We are confronted brief in alleging questions relating negligence propositions appellant presenting alone to part proceedings of tlie brief has the of Mr. and Mrs. Thetford and error below. So, boy wholly ably prepared presented, himself become immaterial. but been questions properly too, apparent immaterial if that cannot dis- do such become seems negligence propositions dispose with- -the of Freddie’s of all the true that cuss and in reasonable it be him, urged imputable parents is not limits. appellant, true that it be further Appellant insists that court should have presented find- been to the issue or error has ing guilty request granted for an verdict its instructed that himself was ground undisputed (1)on that evi- negligence. ad- We will therefore plaintiff, minor Fred- dence discloses that particularly an en- more ourselves dress deavor Thetford, negligence guilty of in rid- die questions properly dispose of the parents’ upon running ing board indicated. . last danger there- full realization ear with to, proximately negligence contrib- and that is We will first address ourselves injuries; (2) that un- uted to cause Objec boy’s alleged negligence. sue of the disputed discloses that father definitions are made the court’s tions plaintiff guilty tlie were of minor mother proximate ordinary care, negligence, cause, permitting -negligence in Freddie to ride of on the connection ap charges think these are but we running board, which when taken objections may form, proved and that the negligence with the of the particular discussion. We overruled without himself, proximately and was the contributed further that it cannot be are said gence ques- proximate cause of tlie sole negli the minor son was that wholly ; (3) failed tion riding run on the a matter law. asi injdries damages show ning and under the at the'time circum board plaintiff were -the result of minor any negligence true, testifying did. It is while stances he as a operator stated, among witness, he other wholly car; (4)that the evidence dangerous ride knew it was he plaintiff was that the minor to show failed certainly board, running an but he intelligence possessed and dis- of sufficient opportunity age, had immature dangers attendant understand cretion ap him, manner, or his actual to observe running riding board of the auto- questions pro parent pounded, reactions to mental mobile, etc. further showed etc. The evidence riding presented towards face are the that Numerous There is no evi charge, the automobile. the action of the court the inside court’s previous he had requested, refusing special occasions instructions evidence, to the dence permitted proceed- board ride on to' and other introduction
9Ü9 finding, being passing with a contention in collision come had ever he vehicle, negligence automobile, or that the definitions of street that erect top, standing objectionable, too broad He was ever fallen off. had specific finding did call for automobile’s as to holding to the frame boy’s intelligence injured, and discretion. concluded and the consequences, dangerous court’s .boy’s definitions ordi- fear nary apply particularly possibility care were made any, because of a arose minor, operation, read follows : own the car thrown from mother, who testified “Negligence was the case she is a failure to use boy dangerous for the to ride care, knew and the a child danger she running board, measured the standard of care which *4 off, falling apprehended prudent in ordinarily age child of similar swiped.” “side of his had exercise. a Automobiles, Cyclopedi on In Blashfield’s “Ordinary person care is that care which charge 1064, 2, page “To vol. child with it is said: ordinary prudence under exercise contributory it must same or similar circumstances and to a only capacity, to know have had the ordinary child is that care which child of ordinarily al danger in the conduct involved prudence age of that would exercise.” ap leged prehend to realize and but charges Under these it seems to us that in in circumstances risk under the passing upon negli the issue of the minor’s judg placed, exercise the and to which it was gence necessarily were called necessary it.” to avoid ment discretion and intelligence, circumspection, to consider the and care of the minor 1067, volume, page the author In the same involved, as measured says: years child of tender conduct of a not be “The by prudence the care and children by the stand should measured age. -But, question not, purely is adult, the not an because ard of nature, evidentiary defensive its in and ordinarily youth embraces, immaturity only boy’s negligence, cidental to the knowledge imperfect of natural facts an objection and that the was waived under proper relation between laws Ormsby Ratcliffe, 242, decision of v. 117 Tex. possessed but, when of those cause and effect S.W.(2d) say 1 feel We also unable to necessary of reason exercise elements jury’s finding that Freddie Thetford thought discretion, care, it still lacks able negligence unsupported by was not is presumed at to be an fulness and tribute of the the evidence. ordinary prudent adult, and contributory negligence Was the only experience. to come which Thoughtlessness, impulsiveness, is said parents, any, imputable ? the minor child indiffer conflicting, While the authorities seem it is dangers potent and imminent ence to all but page 155, par. 129, said in 20 R. C. L. that: childhood, be must are natural traits “According, however, very decided classifying the conduct account taken into weight authority, negligence aof child.” parent guardian having custody and con 141, Page, of Brown v. 98 In the Conn. exposing danger trol of an infant in it to 45, by Supreme 44, Court of Con- 119 A. imputed preclude child so as to necticut, said, quoting is it from the head- right against its person by action a third contributory negligence “Whether note: could be negligence injured.” whose it is .eight charged on children five and Numerous cases in the notes are cited to by years injured high- an old automobile support the text. way be- came from concealment ,vol. exclusively wagon Cyclopedia, 1, 1001, for page was a matter In hind Blashfield’s jury.” “By great weight it is said: of author- ity, negligence parent of a that what is said in the We think above charge imputed aof minor child cannot be quotations Cyclopedia from Blashfield is well as well prevent recovery by it so toas the child from by generally, sustained the authorities person, owning operating a third a vehicle text, as as in notes to the those cited colliding or riding, with a machine which it is in the case v. was determined of Brown striking walking the child while Page, negligence the issue the minor’s was street.” jury. Among things, appellant for insists, by authorities .discussed Mr. Justice effect, specific that there was no Buck, of this in the case of Southwest- finding possessed the minor Doell, S.W.(2d) 501, ern Bell Tel. Co. v. in 1 intelligence sufficient stand tion, and discretion to under negligence it was held that the which of a dangers posi attendant imputable driver was not automobile insisted, which, it ele years six old. minor brother ment that should have -been determined jury. Ry. proposition presenting G., Moore, the this & H. Under In case of H. pointed 64, Rep. 265, it noi; contention out that 69 46 Am. it was hold Tex. specially requested requested ouivSupreme negligence issue was Court that the call- of a plaintiffs say years through un- sending parent old six defendant lier child required agent, employee to its said servant and saw errand attended plaintiffs imputed peril, not be their said could a railroad track before cross .the child recovery right for the said Arthur Thet- or affect its ford, by Wil- injury in time in was cited the exercise of This case sustained. hand, Co., on this of all Tex. use con means at its T. & P. liams v. safety sistent with the point. said street passengers thereon, stopped said Fletcher, Tex. P. Co. v. T. & striking plaintiffs, street car before as herein 446,by App. 736, Dallas Court S. 26 W. alleged, or could and would slowed the Fin- Justice in an Civil sufficiently plaintiffs same down ley, it was held that passed place compact, thereby years exposing girl old in of a seven mother the child the accident com avoided herein imputed danger to it. not be could plained of, plaintiffs say but defendant v.Co. Union Tel. case of Western In the through agent, said servant em 1048, Am. Hoffman, 80 Tex. ployee stopped neither or slow said street car parents were Rep. held St. just prior ed the thereof said acci failing sur- guilty gical obtain injuries, negligently seeing plaintiffs dent and after years, age son, fifteen aid for a carelessly imputable negligence was not *5 such but that attempting stopping, stop, slowing or down law, question minor matter jury’s as a speed attempting speed, to slow down its determination. one for the very operating while the same in careless a way manner, aforesaid, add doubtless, While, reckless found cases be cited, w;e plaintiffs ran said street into and their contrary import, car above think those automobile, damages, quoted, said and did here an which we from some of pleaded, negligence, in which-was con in this which be rule that should nounce the d tributed to was a cause of case, on the all an we overrule contentions! damages pleaded.” negli said appellant herein that the' to the effect parents im is gence putable Thetford’s testified, among Mr. S.O. Woods oth recovery precludes in a to him and er automobile driving to the effect that he was an notwithstanding behalf, the verdict following car; the street that he himself, guilty he, was not that plaintiffs’ saw just automobile before the contributory negligence. In connec place; collision took going that the street car was that, found while will wcj note tion hour; some 18 or 20 miles an ‘that when car, Thetford, driver Mrs. plaintiffs’ he first noticed the it past negligent in drive been was some 25 or 30 north of feet the north point and. man collision at the time point switch, and the street car moved yet did, it was found ner in which she going north, about 20 feet auto about jury proximate negligence was the sole such not that going south, 10 hap feet when the accident collision, ap thus it cause of the pened ; parked that automobiles were pearing that at most the street, west side of the which left a narrow negli concurring cause of was a mother buti space them between the west line of the driver, gence both the street car with that of corner, track; .that switch “it was the left injury operating who to the minor child the street that car” in contact came with 'the a condition was that car came contact which, if unaffected erroneous with the automobile about in front of the rear objectionable evidence, charges, er fender. supports proceeding, be roneous low. Co., 1-Ie Nav. further Markham v. Houston Direct testified: “As to whether or 131; G., quite not enough H. A. & S. there wasn’t Tex. room in 73 for the Closkell, App. 160, squeeze Tex. S. W. automobile to Co. v. between the curb Co., refused; G., v. and I plen- H. & S. A. the street will writ state there was 279, ty App. 46, Vollrath, of room Tex. Civ. S. W. if the street car motorman had business, watching writ refused. and slowed down supposed like he should. He is to slow down what we have said relat In addition to I going the switch. said that he was imputed contention of that switch at 18 or 20 miles hour. He negligence, we will notice the further conten anything except didn’t do cut off his— relating appellant dis issue of tion electricity. there he off where cuts I can Appellant first that insists covered speed tell when he checked his a little. I pleadings support plaintiffs’ insufficient knew sound of the car.” plaintiffs, pleading after the issue. “No, negligent keeping He further I testified: don’t know not motorman was the a anything etc., keep lookout, alleged, proper was in the alter there the driver of seeing develop native, the automobile “If should said the street ear. that: it servant, employee nothing agent, There the street at said between lookout, keeping the automobile.” such event
QH I>ixon, surveyor, appeal is engineer it Mr. testified tiiat made on anticipate rail of switch feet from tlie bound to 12.4 west deceased pf west the street car track to the curb on side would be so as to run in front Hemphill Street; supposed an train. that he The Commission of after as wide, leaving suming 6 feet automobile was about that she was parked law, following about automobiles matter of 6 feet laid rule: between down the that, switch; if the and the west rail person “In is order for projection be taken 12-inch ear of the street necessary bodily injury will certain- hardly that, room for there would ly peril be suffered when- him. He is pass. automobile to pursuing probably he is course ever boy, Thetford, tes- Mrs. mother of the bodily injury will terminate in him. serious years time of tified that he was nine old at the reasonably appears Whenever second to a injury; run the that it was person, from facts and circumstances within over rail wheel of the automobile the switch biles ing the west knowledge, person pursuing is get parked automo- clear of the probably pursue course and it to go- ; thought car was that she end, then, event, person in such the second stop, get around the that she could knowledge held to other. ducible from the of think, her; before street ear reached automobiles clearly doctrine, ae- This middle of that the switch when was about the ear the.street many decisions the sub- the motorman saw that ject she peril, among of discovered which are the up going stop; he had slowed following: (Citing authorities.) numerous slightly at the the switch when he came “It is believed under the facts and cir- end, south evidence, province cumstances it was the car; stop that “that is what for another fireman, to determine that switches are for.” looking while was at the deceased passengers also street car Several depot, at her utmost towards the saw *6 thought automo- of the testified. Some them n themail hands; bag in her knew that center; about its bile one of the the car struck street duty bag was her mail clerk on the to deliver the mail passengers at one testified that train, on the south of side over, stooped time but noticed the motorman she track; that, per- the and knew in an to effort just fails to at what the evidence disclose duty, probably go upon form that she occurred, point on switch or how And the this track, did, by the she and be as struck the stooped position. long yet in a he remained evidence, think, train. The we to such as that several others testified effect justify fireman, finding the standing up, the motorman was nothing and that notwithstanding knowledge, his denial of such appeared between the street car and things avoid, by knew all these the time open. that all the was Wag- ordinary care, injury exercise of to Miss Wag G., In H. & A. the case of S. Co.v. peril ner. The issue of is raised discovered ner, the Commission S. W. by the evidence.” Appeals, facts were the that the de effect Browder, Lancaster v. S. ceased, Kings- postmistress, in a the town of 625, by. cir- Ry. was similar in its bury, passenger killed struck and was G., cumstances H. A. to' the case & S. stop train was scheduled to at Wagner, just quot- from which we have picking up passengers purpose town for the Appeals, ed. The Commission of on writ of mail; from her deceased started the error, appears report opin- the the post feet northwest the office about 150 say, quoting ion in 256 S. W. had this to line, straight and ran in station decedent, from the headnotes: “Evidence that course, changing pace her until she was hit alive, crossing when with headlight shining walking fast, seen was last the track defendant’s the train she crossed the oncoming away, train the 100 feet depot. near At track the time she was her, was that she killed, train, carrying a she was sack of mail to the practically and had effected daily duty her was custom. The crossing, when on safe account of the unusual plain that she was in evidence showed view speed struck, precludes of the train was engineer from the time she started un saying the decedent court matter law that struck, during til the moment she was that No was time train covered about 140 feet. cross.” attempt stop was made to until train struck, Cunning- an instant before deceased the case of M.-K.-T. Co. v. engineer (Tex. App.) stop. S.W.(2d) 343, 345, fireman ham it told the Com. street, appeared deceased, The evidence showed that the train was at a railway equipped appliances crossing city company’s with all modern line brakes, Worth, and could have under avoided of Port circumstances con- by slacking speed second, single stituting deceased giving gineer ran from a western di- railway her time to cross the track. The rection across the approaching line in en front of an recognized engine denied that he her or saw and was struck and killed just leaving in her the mail sack hands. The contention he the east line of city Worth, engineer lins he saw Eort testified that car track. The bridge walking going to deceased, over across a trestle or seeing stop, that, ravine as car from Dallas was the deceased interurban after tracks, speeding city he attempt of Port westward towards to cross was then space intervening at hand Worth. The between instrumentalities all evi- stop was other street car and Mrs. Mullins was There severaljiun- locomotive. nothing appeared feet, effect, dred to obstruct same what dence related car, thus perhaps view the motorman of the stated indicate trend presenting testimony. appellant railway the inference that he saw deceased com- the pany time, in front of him the instrumen- vigorously insisted hand, stopped talities at either so issue discov- insufficient raise the speed slowed as to enable Mrs. it certified ered This Su- court following get track, preme appearing off the Mullins she as she had Court determination just struck and off questions: knocked the track crossing bridge. succeeded raising issue “1. evidence Is there tending There was to show that the peril? of discovered motorman had made effort to check the refusing speed err in to submit “2. court Did the and we held that: de- the ceased was the of whether scarcely appellee’s “It doubted that of his death?” cause sole testimony supports the inference that mo- Judge Com- dangerous Short In an torman position upon Mrs. Mullins’ discovered Supreme approved trestle, might mission of that she among said, Court, escape that: it was not be able therefrom injury “In issue of discovered order that avoid motorman while the was not less raised, her, to adduce evi- it isl than 300 or 400 east of feet first, show, tending that the deceased dence had he used all the means com- at his position mand, in a or would in rea- was sonable of the car would at least situation; perilous probability enter have been so retarded and decreased as to second, not, not, he or would in all escaped. could have enabled Mrs. Mullins to have probability, single from the dan- step extricate himself She testified that a additional situation; third, gerous seeing beyond that after the would have her taken the reach of single was, deceased situation of the and realiz- the car. instant of time there- probably her, fore, important extricate him- all and we think that operatives therefrom, testimony supports self fail to exercise all the means at the train the as a whole the conclu- *7 imputed in the use sion that must be to the verdict that their command the to avoid the motorman failed to use the means at his that, collision; command, which, fourth', of such if result in the exercise as injured. failure, greatest caution, given If the evi- the deceased of the would have the certificate, escape. the in viewed dence embraced moment for We conclude light, substantially sup- judgment, most favorable that the evidence warrants all the ports the and allegations assignments dependent on this material sub- such conclu- appellees ject, petition ques- sion are overruled.” answered in affirma- tion No. 1 must be light cited, In the of the cases we think we opinion tive. We are of the testi- must jury sustain the verdict of the on subject mony quoted in certificate on this issue of discovered * n n stated, As the evi- according to the an- rule above legal dence and its inferences warrants the nounced, raise sufficient to the issue of dis standing conclusion the motorman was peril.” covered looking up forward; that Mrs. Thetford and engineer pointed out It was plain automobile was in the deceased towards the discovered view; that the motorman in the exercise of railway apparent track with intention of ordinary approach- care must have seen the elapsed crossing, a sufficient the en- and' that Mrs. Thetford was put gineer on the brakes or to have whis- making probably effort to cross the narrow might tled, of which either or both have been space between the street tracks and the to have enabled the deceased have sufficient yet automobiles, parked testimony of one safety, especially the track crossed view explicit or more witnesses was that the mo- Cunningham evidence that was struck of the only apply failed to torman not his brakes railway leaving the track on as he power, speed, but increased or cut off his his only east, needed and that he a moment or anything. if him to have enabled have cleared two to track and the. injury. avoided any prejudicial find fail to error We ' relating assignment specific to the issue of cited, court A also be case this accordingly, and, peril, overrule 'discovered wit, Traction Northern Texas Co. v. Mull propositions relating assignments and App. 566, 435, ins, 433, all 99 S. Tex. W. thereto. writ of error refused. case Mrs. Mul Associate Justice written follows, tíñnk, be- as stated as we It assignments Buck: opinion, and ginning this embodying jury propositions .of error the issue “The court submitted .to charges charge immediately refused Youngblood, and the the court’s Miss whether contributory negligence alleged relating truck, prior being struck subjects parents condition, and other perilous minor’s of the of the did the driver immaterial, are over- perilous as such become ruled, Miss condition of truck discover such find immediately no Youngblood prior this we add her evidence, charge relating driver, truck, error material after dis and did said with covering n * * judge, trial the remarks condition - proceedings which relate to the and other character to use all the means exercise injuries. minor’s (at command) extent of consistent with. at his hands fully safety sustains the ver- safety thinkWe his truck to his own and the damages amount of striking plaintiff. dict in The court also avoid n judgment. quired jury: affirm awarded and Was the failure of the truck to use driver all Rehearing. On Motion For (command), means at hands consistent truck, safety and that own rehearing special In the motion for em- striking plaintiff, negligence, and avoid to was such phasis is-- is directed to the contention that any, 5, 7, 6, relating to sues the issue of dis- any, injuries, Miss sustained cause Youngblood? peril, general, are covered too broad and complaint is that each specu- are framed so late leave the vague, gen special all of said issues too particular and surmise as time the eral, inquire indefinite, and do not plaintiff’s automobile, motorman saw tention the vital con- jury when, where, time, and at what at what wholly ignore these issues position peril, place plaintiff was in element,” “time as discussed in the merely evidentiary and are suggestive nature Judge Critz, Section weight evi Appeals Commission of case of North- posi assuming plaintiff in a dence tion of- have Weed, ern Texas Traction v. 300 S. Co. driver could which defendant’s objection This numerous others to one of stopped his discovered in time excep- paragraph appellant’s found in 9 of be tions to the court’s the basis of Appellant Trac Northern Texas truck. tion cites charge, constitutes Weed, Com twenty-second assign- approved the Su mission preme Court, twenty-fifth proposition ment of error and its authority for its contention assignment proposi- based thereon. cited We have read the of error case. this tion read as follows: any authority in it which and do find ease would Therefore we overrule as well justify sustaining assignment. Twenty-second our assignment: “Because assignment the tenth submitting special court erred issues Nos. ninth.” charge, main wherein the court undertook to submit Case, Judge supra, Critz In the Weed of discovered for the at the “We should not look observed that: court’s *8 reasons and in the manner shown section standpoint experi charge from the exceptions 9 of defendant’s lawyers, must look at but ‘we of trained ence charge.” to the court’s main charge -practical, experience the court’s law, jury, in the untrained teaches Twenty-fifth proposition: “The trial court ” view it.’ submitting special erre’d No. 5 to the rule, quite light jury, In, we it gen- this think too broad same is jury improbable misled to eral the particular is so framed and worded as to leave jury appellant. speculation prejudice found that and surmise as to the- inquired automo- the motorman saw as to about questioned. bile, The evidence this is plaintiffs’ places saw motorman automobile conclusion authorizes the also and duty too reason thereof onerous rapidly approaching standing facing the upon burden defendant.” yards distant, no a few but automobile special charge requested looking No them; cut off that he between obstruction alleged special correction defect apply power, his brakes. If he did 5, 6, 7, issues submitted regular performing duties .objections and it to be thus seen that the indicates, as we the evidence presented 5 and 6 issues to the trial assume, right it is difficult to see materially narrowed, court are and that the keep seeing could the motorman how element,” upon pressed us, “time as now was approaching under circumstances prominent. quite stop. indicating not made this similar to If that -it Refining Young is that of Gulf doubt on the could have there (Tex. S.W.(2d) App.) 522, saw the motorman blood whether 527. about position to- quote following perilous in time of the minor We by applying his have retarded street car sufficiently permitted brakes GULF PRODUCTION CO. v. TAYLOR. pass collision, automobile was appears there No. 677. minds, is no our for it such doubt in Appeals Court of Civil Texas. Eastland. facts the statement of operating motorman April who was 18, 1930. at the court the time was attendance Rehearing 13, Denied June below, at the time of the trial agent, was interviewed claim testify. upon He, per- and not called sons, of all knew best when he saw position parties, and it is not unreason- appellant able to infer if him could shown that he did not see the apply brakes, it minor in time to testify. upon have called him to foregoing However, is in discussion reality superfluous, yet another for there is answer to the contention under consideration spe answer think In decisive.' 1, 2, 3, 4, cial issues the motorman was found that guilty in a keep proper oper failure ating lookout great a rate of his car too at switch, out of the north end went negligence in each case was the and that the injury. proximate cause of the minor’s the minor was not found negligence, and, of his moth held, imputable him, er is not as we yet think, findings support as we these judgment regardless favor, in the minor’s finding the issue discovered p. Jurisprudence, In vol. § Texas said: decision based it is “Where a findings, more is determined two or finding supports judgment, there that one is necessity findings or to consider other- which have no re- matters as particular this to and cannot affect lation theory finding. Similarly, if the on which the court could have rendered the trial supported pleadings and the evi- dence, issues involved another the- ory immaterial.”' become Templeton v. Traction Northern Texas refused, 440, 442, Co., writ 217 S. that, in well settled cases said: “It is court special issues are submitted to the where jury, enough find those it is *9 finding may which, regardless of what the others, must stand.” Citing cases. also, See, & Furst-Edwards v.Co. St. Louis (Tex. App.) 1024; Civ. S. W. St. Louis S. (Tex. W. Co. v. Inman 650; Sears, App.) Sears S. 45 Tex. special conclude that We overruled, and, and 7 should be issues other presented questions motion hav- sufficiently disposed of, think, original opinion, motion our for re- in hearing be overruled.