
    FT. WORTH & D. C. RY. CO. v. ANDERSON.
    (No. 1164.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1917.)
    1. Trial <&wkey;261 — Requested Instruction-Failure to Give — Reversible Error.
    In an action for damages to plaintiff’s crop from overflow alleged to have been caused by the improper construction of railway company’s bridge, refusal to grant an instruction to find whether the obstruction caused overflow on plaintiff’s land that would not otherwise have overflowed and the value of the crop on such land was reversible error, although requested instruction contained a clerical error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675.]
    2. Trial <&wkey;121 (4) — Argument and Conduct of Counsel — Comment on Own Experience.
    In an action against a railroad company, remarks of counsel in comments on a witness’ testimony that he knew from past experience that you could not get anything favorable to plaintiff out of an employé of railroad company was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 300.]
    3. Trial &wkey;>120(3) — Argument of Counsel-Assuming Matter Not in Evidence.
    It was improper for attorney to refer in argument to excluded testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 287.]
    Appeal from Wichita County Court.
    Action by G. W. Anderson against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson, Barwise & Wharton, of Ft. Worth, and Carrigan, Montgomery & Britain and F. S. Jones, all of Wichita Falls, for appellant. S. Heyser and Smoot & Smoot, all of Wichita Falls, for appellee.
   BOYCE, J.

This appeal is from a judgment in favor of appellee, Anderson, against the appellant' railway company for damages to appellee’s crop resulting from overflow alleged to have been caused by the improper construction of the railway company’s bridge across Holliday creek, in Wichita county. The verdict of the jury, supported by evidence, establishes that the construction of the bridge was improper and impeded to some extent the flow of the water, but the ■contention of the appellant railway company is that the undisputed evidence shows that Anderson’s land would have been overflowed anyway, and that under the evidence a peremptory instruction should have been given for the railway company for this reason. The appellee had a ten-acre truck farm, located something over a mile up the creek from the bridge. There were two overflows occurring close together in point of time. The first overflow inundated about three acres of appellee's land, the water at this time being from three to four feet deep on the lowest part of the land. The second overflow was higher and inundated about seven acres of the land, at which time the water was from five to six feet deep on the lowest land, and practically all of appellee’s crops destroyed. During the flood the water below the bridge was from sixteen to twenty-two inches lower than that above the bridge, but the valleys below the bridge were overflowed. There is considerable testimony that tends to show that the obstruction caused by the bridge did not affect the level of the water as high up the creek as appellee’s land. As the level of the water below the bridge was at the greatest estimate only twenty-two inches lower than the water above, it does seem evident from appellee’s testimony as to the depth of water on the lowest portions of his land that some of his land would have been overflowed in any event, but the testimony is such that we cannot say that the jury could not have found that a part at least of appellee’s land was overflowed that would not have been covered by the water but for the higher level of the water above the bridge; so that we overrule the assignment complaining of the action of the court in refusing the peremptory instruction for appellant.

The case was submitted on special issues, and the jury were instructed, in the event they should find that the flow of the water was obstructed by the bridge, to further specifically find:

First. “Whether or not such obstruction of the flood waters of said creek was the direct and proximate cause of the water overflowing and standing on plaintiff’s land. Answer ‘Yes,’ or ‘No.’ ”
Second. “Whether or not such construction (of the bridge) was the direct and proximate cause of the flood waters standing upon plaintiff’s land for a greater length of time than it would otherwise have done if it did. Answer ‘Yes’ or ‘No.’ ”
Third. “What was the reasonable market value of plaintiff’s probable crop of cantaloupes, tomatoes, watermelons, com, squash, etc., at the nearest market had the same matured, such cost of planting and cultivating of such crop, and the marketing of same for the season of 1915? Answer by stating the amount.”

Appellant requested the court to instruct the jury to find whether the obstruction caused the water from Holliday creek to overflow part of appellee’s land that would not otherwise have overflowed, and to find the value of the crop on such part of said land. We think that some such instruction as this should have been given. If the jury had found that only a part of the land was caused to be overflowed by the construction of the bridge, the requirement to give a “Yes” or “No” answer to the two issues submitted by the court as first above stated would be the source of some confusion to the jury, to say the least, and the jury. would probably conclude that affirmative answers to the issues would be warranted. In the last issues submitted, as above stated, tlie jury were asked to find tbe value of appellee’s crop destroyed without regard to any question as to whether a part of it would have been destroyed in any event. The appellant presented two requested instructions on this subject and complains of their refusal by its second and third assignments. The instruction referred to in the second assignment is perhaps objectionable as being on the weight of the evidence. We think that referred to in the third assignment is reasonably clear and sufficiently presents the issue and should have been given. The fact that this requested instruction refers to the improper construction of “plaintiff’s bridge” instead of defendant’s bridge was manifestly the result of a clerical error, and would not justify the court in refusing it on this account.

One of the attorneys in arguing the case to the jury referred to the testimony of H. M. Snoddy, an employé of the railway company, subpoenaed as a witness by it, but placed on the stand by the plaintiff, who made the following statement:

“That Snoddy was on the pay roll of the railroad company and would not testify to anything favorable to the plaintiff, and that he (the attorney making the argument) knew from past experience that you could not get anything' favorable to plaintiff out of anybody while in the employ of the railroad company.”

While it is proper for attorneys to comment on the relation of a witness as an em-ployé of one of the parties, we think that the reference to the experience of the attorney was improper. M., K. & T. Ry. Co. v. Woods, 25 S. W. 741; M., K. & T. Ry. v. Huggins, 61 S. W. 976. It is not necessary to determine whether this improper statement would require a reversal of the case.

The statement under the fifth assignment is not sufficient to advise us , whether any reference to the matters in the argument which is complained of by this assignment is justified or not. From the statement made by appellee we would conclude that at least no harm would have resulted from this argument.

Plaintiff had upon the trial offered testimony to show that after the flood the railway company had enlarged the opening under its bridge across Holliday creek, but this testimony was, upon objection, excluded. It was not proper for plaintiff’s attorney, in his argument, to insist on reference to this testimony that had been offered only, but had been excluded by the court on objection. First National Bank v. Harkrider, 157 S. W, 290. The court below sustained the objection to the argument, though appellee’s attorney was insistent before the jury that he had the right to argue it. It is also unnecessary for us to determine whether this action would require a reversal of the case.

In view of the conflicting holdings of the court it would at least be the better practice for attorneys, in arguing cases submitted on special issues, not to attempt to explain to the jury what would be the legal effect of a finding on a particular issue in respect to the right of either party to judgment. Southwestern Telegraph & Tel. Co. v. Sheppard, 189 S. W. 799, and authorities cited; Cameron Steam Pump Works v. Lubbock Ice & Light Co., 167 S. W. 256.

Reversed and remanded. 
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