
    AUSTIN ELECTRIC RY. CO. et al. v. FAUST. 
    
    (Court of Civil Appeals of Texas.
    Nov. 23, 1910.
    Rehearing Denied Jan. 4, 1911.)
    1. Street Railroaos (§ 85) — Right to Street.
    While street car companies have no exclusive right to the use of streets, they have a preferential right, to a certain extent, arising from the character of their operation.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 193, 195; Dec. Dig. § 85.]
    2. Street Railroads (§ 117) — Collision with Vehicle — Question for Jury.
    Whether a motorman in charge of a street car was negligent in acting upon the presumption that the driver of a vehicle proceeding parallel to the track in the same direction as his car, and a little in advance thereof, would proceed to drive straight ahead, and would not attempt to cross the track in front of the car, is for the jury, under the facts of the particular case.
    [Ed. Note. — For other cases, see 'Street Railroads, Cent. Dig. §§ 246, 251; Dec. Dig. § 117.]
    3. Trial (§ 200) — Refusal of Requests — Requests Embraced in Main Charge.
    It is not error to refuse requests sufficiently embraced in the court’s main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.]
    4. Street Railroads (§ 90) — Operation — Care Required.
    After a motorman in charge of a street car discovers the peril of the driver of a vehicle attempting to cross the track in front of the car, he must use every care in his power consistent with the safety of his passengers to avoid injury, and the use of only ordinary care is not sufficient.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dee. Dig. § 90.]
    5. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    An assignment of error, under which there is no statement, is not sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    - An assignment of error, not followed by a proposition and not submitted as a proposition, is insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    7. New Trial (§ 150) — Grounds — Newly Discovered Evidence — Sufficiency of Affidavit.
    A motion for new trial for newly discovered evidence was properly denied, where the affidavit made by one of several attorneys for movant stated that the evidence was not known to him until after the trial, but did not state that it was not known to his cocounsel, nor that it was not known to their clients before the trial, and no affidavit relating thereto was made by any officer of their clients.
    [Ed. Note. — For other cases, see New Trial, ■Cent. Dig. §§ 306-310; Dec. Dig. § .150.]
    8. Damages (§ 161) — Pleading — Mental Suffering.
    In an injury action, an allegation that, by reason of being struck by a running team, plaintiff was “shocked and frightened” was sufficient to admit evidence of mental suffering.
    LEd. Note. — For other cases, see Damages, Cent. Dig. § 446; Dec. Dig. § 161.]
    9. Appeal and Error (§ 730) — Assignments of Error — Sufficiency.
    An assignment of error complaining of the failure of the court to give “special charge No. 1,” without stating what such charge was, and referring the court to the entire statement of facts in support of its contention, was too general.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.]
    10. Trial (§ 339) — Verdict—Correction.
    In an action against two defendants, where the jury attempted to return a verdict against each of them for an amount aggregating $6,000, but apportioned the amount between them, it was proper for the court to refuse to receive the verdict, to instruct them in a-supplementary charge that they could not apportion the amount between the defendants, and to receive a corrected verdict returning the same amount against both defendants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 791-704; Dec. Dig. § 339.]
    11. Appeal and Error (§ 1027) — Review— Harmless Error.
    In an injury action against a street railroad company and an ice company, error committed against the ice company as to its cross-action over against its codefendant would be no ground for reversal of a judgment for plaintiff.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.]
    12. Negligence (§ 15) — Joint Liability.
    1 Where one person has by his negligence brought about a condition/ and another person is guilty of negligence in not recognizing and acting upon such condition, and a third person, without negligence, is injured by the joint negligence of the two persons, he may recover against both, and as between the.innocent person and the joint wrongdoers there will be no inquiry as to the comparative negligence of the two, and no apportionment of damages based on such comparison.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 18; Dec. Dig. § 15.]
    13. Indemnity (§ 13) — Implied Liability— As Between Tort-Feasors.
    Where one person has by his negligence brought about a condition, and another person is guilty of negligence in not recognizing - and acting upon such condition, and a third person, without negligence, is injured by reason of the negligence of the two persons, if the negligence of one was merely passive, or such as only to produce the occasion, and the other negligent person was the active perpetrator of the wrong, the former may recover over against the latter, since, as between them, the negligence of the active perpetrator of the wrong would be the proximate cause of the injury to the person whose negligence did no more than produce the condition.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.}
    14. Evidence (§ 244) — Admissions—Corporate Officers.
    , .In an injury action against an ice company and a street railroad company, jointly, where the ice company brought a cross-action against its codefendant alleging that the injury was caused solely by such codefendant’s negligence, it was error to exclude evidence of an admission made by the president of the railway company to the secretary of the ice company that the railway company was responsible for the injury both to plaintiff and to the ice company, which admission was made in a transaction in which the president of the railway company, as its representative, paid the ice company a sum for injury to its wagon upon the occasion in question; such evidence being relevant and material to the issue between the ice company and the railway company.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-986; Dec. Dig. §.244.]
    15. Evidence (§ 256) — Admissions—Laying Predicate.
    Evidence that the president of the railway company had stated to the secretary of the ice company that the railway company’s motorman, at a time, place, and under circumstances not given, had made certain statements in reference to the collision in which the injury in litigation was received was properly excluded.
    [Ed. Note. — For other cases, .see Evidence, Cent. Dig. §§ 1003, 1005; Dec. Dig. § 256.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by Mary Faust against the Austin Electric Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed and remanded in part.
    F. C. Davis, Geo. E. Shelley, Gregory, Batts & Brooks, Cochran & White, Irelam Graves, and Allen, Hart & Patterson, for appellants. James H. Robertson and Webb & Goeth, for appellee.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Writ o£ error denied by Supreme Court.
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
   JENKINS, J.

This is a suit for damages for personal injuries sustained by appellee by reason of a collision between a car ofr the-Austin Electric Railway Company and a wagon and team of the Austin Ice Company, whereby the said team was frightened and caused to run away, and against a buggy in which plaintiff was sitting at the time, and thereby inflicting injuries upon her, as described in appellee’s petition. Judgment for appellee for $6,000 against the said railway company and the said ice company, a dissolved corporation, and against L. E. Tinnin, R. S. Tinnin, C. I. Tinnin, and F. C. Davis, stockholders of said ice company.

The undisputed facts show that appellee, was sitting in a buggy in the daytime, on the-east side of Congress avenue, between Ninth, and Tenth streets, and near the intersection of said Ninth street and Congress avenue; that the railway company was operating its street cars on said avenue, which runs north and south; that said avenue is a broad and straight street; that there is a double track of the street railway near the center of said’ avenue, there being about six feet between said tracks; that the wagon of the ice company was on the east side of said avenue, and had started diagonally across the same, between Ninth and Tenth streets, traveling southwest, and, after crossing the east track of said railway, had turned west, traveling parallel with the west track of said railway for a short distance, and then turned north across the north track, at which time a car traveling west struck the horses attached to-said wagon, and caused them to run away and inflict injury upon appellee, sitting in said buggy.

Appellee alleged negligence as to both the railway company and the ice company, substantially in this: Against the railway company, in that at the time it was operating-its car at a high rate of speed, and that the motorman saw, or, by the exercise of ordinary care, could have seen, the ice wagon was approaching and entering on the track in front of the car in time to have avoided said collision; against the ice company, in that the driver of its wagon saw, or, by the exercise of ordinary care could have seen, that the street car was approaching in such close proximity that a collision would occur by attempting to drive the wagon and team across the track in front of said car, in the manner that he did; that the negligence both of the railway company and of the ice company was the proximate cause of her injuries.

The street railway company, in addition to a general denial, alleged substantially that the negligence of the ice .company was the proximate and sole cause of appellee’s injuries in this: That it was operating its ear at a proper speed; that the ice wagon was being driven parallel with the track of the railway company at a safe distance therefrom, and that the driver of said wagon suddenly turned across the railway track in such close proximity to the car that it was impossible to stop said car in time to avoid the collision, after discovering the intention of said driver so to do, and that after such discovery, its motorman did all that he could to stop said car; that said motorman had the right to presume that said driver would continue to travel paraUel with said car, and at a safe distance therefrom, and that he would not turn suddenly in front of said moving car in such close proximity thereto. The railway company also pleaded that the plaintiff failed to use ordinary care to secure prompt and skilled medical attention, and that she failed to use ordinary care to follow the instructions of her physicians, and by reason of such failure contributed to her own injuries.

The ice company, in addition to a general denial, alleged substantially that the negligence of the railway company was the proximate and sole cause of appellee’s injuries, in that the driver of its wagon exercised proper care, and that the railway company ran its car downgrade at a rapid and dangerous speed, and that the motorman saw the wago.n and team crossing the track in time to have avoided the collision, but did not ring the bell or sound the gong, but ran into said wagon and team and frightened said horses, and caused them to break away and run against the buggy in which appellee was seated.

■ As to appellant, the street railway company:

1. Its first assignment is upon the refusal of the court to give its requested charge which contained, among other things, the following: “If you believe from the evidence that the driver of the ice company’s wagon drove his team in a parallel direction with the street car, and just ahead of said car, a few feet from said track, and a safe distance from same, then the motorman on the street car had the right to presume that the driver of the ice wagon would so continue to drive, and not place himself in danger by turning across the street car track, and, if you so believe from the evidence, you are then instructed that it was not the duty of the motorman to use any means to check said car until he saw, if he did see, that the driver of the ice wagon was going to turn across the street car track in front of the car. » ⅞ *»

Appellee, in reply to this assignment, says: “Street railways should not presume that persons traveling near and parallel to their tracks may not and will not turn across the tracks,” and bases this upon the proposition that “street railways have no exclusive or paramount right to the use of streets covered by their tracks.” That street railways have no such exclusive right is true. St. Ry. Co. v. Renken, 15 Tex. Civ. App. 234, 38 S. W. 829; St. Ry. Co. v. Kumpf, 99 S. W. 864; St. Ry. Co. v. Haines, 45 Tex. Civ. App. 289, 100 S. W. 791; St. Ry. Co. v. Woodlock, 29 S. W. 818. Many cases from other jurisdictions might be cited to the same effect. Many cases might also be'cited in which it is said that street car companies have not a paramount right to the use of the streets on which their tracks are laid. We understand this also to be the law, using the word “paramount,” in the sense in which it should be used in such cases. But we think the ap-pellee’s proposition is too broad. While street car companies have no exclusive right to the use of streets, it may be said that they have a preferential right to a certain extent, arising from the character of their operation. They have, at least, an equal right with others to the use of the street; their cars cannot turn aside, as can an ordinary vehicle, and are not so easily stopped as are ordinary vehicles going at the same speed. Also, if street cars, when proceeding along an open street at a proper rate of speed, when other vehicles or foot travelers are crossing the street in plain view of each other, when either could stop until the other had passed, if the street car must give the preference under such circumstances to ordinary travel, and stop until such vehicles- or foot travelers have crossed the street, it might amount to greatly lessening the efficacy of street cars as a means of conveyance, to the great detriment of the public. We are not now discussing the doctrine of discovered peril; but if, under such circumstances, preference ought to be, and almost universally is, given to the street car, would this not have a bearing as to when the peril ought to be discovered? In Street Railway Co. v. Hewitt, 67 Tex. 480, 3 S. W. 708, 60 Am. St. Rep. 32, it is said: “If a person be seen on the track it may be assumed, if the person be an adult, that he will leave the track before the car reaches him.” Why? Because such person ought to ‘give the car the preference, and step aside for a moment and allow it to proceed on its way, rather than assert an equal right to the street and compel the car to slow down to his gait, so long as he chooses to remain on the track; and from the fact that people usually recognize and act upon this preferential right of the car, the motorman may well assume that it will be recognized and acted upon in a given instance, until there is something to reasonably indicate the contrary.

And so, as alleged in this case, if one be driving a wagon along parallel with and close to a moving car, the motorman might well presume, and be justified in presuming, that the driver of the wagon would not turn suddenly in front of the car, and in close proximity thereto. If, under such circumstances, the jury should find that the negligence of the driver of the wagon was the proximate cause of the injury, it might well be said that the evidence fully sustains the verdict, because the motorman acted upon the presumption that the driver of the vehicle would not thus act, and that he was not guilty of negligence in acting upon such presumption. But this is for the jury, under all of the facts and circumstances of the case, and is a very different proposition from the court’s so instructing the jury, as a matter of law. There is not wanting authority holding that such instruction is proper, but we believe that the sounder view is that such an instruction would be upon the weight of the evidence, and so holding, we overrule the railway company’s assignment in this regard.

By way of further illustration: It is said that the motorman had the right to presume that the driver of the wagon, traveling along near and parallel to the track, and just in front of the street car, would not attempt to cross in front of same. Why? Because, seeing or hearing the street car so near him, he must know that such an attempt would necessarily be dangerous to him, and to his wagon and team; and sane men do not usually rush recklessly and needlessly into danger. But suppose he was not sane, and that fact was known to the motorman? Of course, he would not be justified in indulging any such presumption. “But,” it may he replied, “the driver in this case was not insane.” True; this supposed case is given in pursuance of the adage that “extreme cases illustrate principles.” In this ease, the presumption that the driver of the wagon would not attempt to cross the railway track must be based upon the supposition that he saw the street car, or heard its approach. But he testified that he neither saw nor heard it. Did the motorman know this, or, at least, did he know enough in this regard to deprive him of the absolute presumption, as a matter of law, that the driver would not attempt to cross the street? The evidence shows that the car was moving along parallel with the wagon for about two or three ear lengths, very close to the wagon and gradually gaining on it, during all of which time the motorman testifies that he was sounding the gong, and yet the driver of the wagon gave no indication of turning from his near proximity to the track. Might this not have suggested to the motorman that the driver of the wagon neither saw nor heard the ■ street ear, especially when, as the street car company both alleged and proved, he was driving a hooded wagon, which prevented his seeing the street car without looking around, and that the wagon made so much noise that he could not hear the approach of the street car? Were these facts apparent to the motorman before the collision? If so, what right had he to presume that the driver of the ice wagon would not continue across the street? These facts are sufficient, we/think, to show that whether or not the motorman had the right to presume that the driver of the ice wagon would not attempt to cross the track, under the circumstances, that he did make such attempt was a question of fact for the jury, and not a matter of law for the court.

This also disposes of the fifth assignment of error, which is based on the failure of the court to instruct the jury in its main charge, as requested in the special charge above discussed.

2. As to the second assignment, we hold that the court did not err in refusing to give the requested charge, for the reason that the matter therein requested was sufficiently given in the main charge of the court. This applies also to the sixth, seventh, and eighth assignments of error, in reference to the alleged failure of appellee to secure proper medical treatment, and to follow the instruetiofis of her physicians. Railway Co. v. Redeker, 67 Tex. 189, 2 S. W. 513; City of Ft. Worth v. Johnson, 84 Tex. 139, 19 S. W. 361; Harris v. Daugherty, 74 Tex. 8, 11 S. W. 921, 15 Am. St. Rep. 812; Railway Co. v. Lewis, 99 S. W. 579; Railway Co. v. Hunt, 118 S. W. 828.

3. The court did not err in refusing to give the special charge, as shown by the third assignment of error, because said charge required of the motorman only ordinary care to avoid the injury after he discovered the peril; whereas, the law requires, in such case, that he should use every care in his power consistent with the safety of his passengers. Railway Co. v. Summers, 111 S. W. 214.

4. The fourth, twelfth, fourteenth, fifteenth, and seventeenth assignments of error are too general. Furthermore, as to the fourth assignment, which complains that the court failed in its general charge to instruct the jury as to the law of discovered peril, the court, in fact, did charge upon that issue. The twelfth assignment is not tenable, because it does not state what were the grounds of objection to the testimony. Schoch v. San Antonio, 57 S. W. 893; Cheatham v. Riddle, 8 Tex. 165; Norton v. Mitchell, 13 Tex. 50; Coleman v. Smith, 55 Tex. 257. There is no sufficient statement under the fourteenth assignment, and no statement at all under the fifteenth assignment. The seventeenth assignment is not followed by a proposition, and is not submitted as such.

5. The ninth assignment complains of the-action of the court in not granting a new trial, on account of newly discovered évi-dence. The alleged newly discovered evidence is that of a physician, and relates to the failure of appellee to obtain and follow proper medical advice, upon which issue, though pleaded hy the railway company, no evidence was offered on the trial of this case. The motion is sworn to by an attorney who came into the case after October 1, 190S. The suit was filed May 25, 1907, by other attorneys who assisted in the trial of this cause. The attorney making the affidavit states therein that the evidence, for which a new trial was sought, was not known to him until after the trial, but he does not state that it was not known to his cocounsel, nor that it was not known to the railway company before the trial; no affidavit as to this was made by any officer of the railway company. The court did not err in refusing to grant a new trial on account of newly discovered testimony.

6. The court did not abuse its discretion in refusing to allow the railway company to reopen the case and put in additional testimony, under the circumstances shown under the tenth assignment. The matter complained of in the eleventh assignment of error, with reference to the argument of counsel, does not require a reversal of this case. As to the objectionable testimony complained of in the thirteenth assignment of error, which was not responsive to the question propounded, the record shows that at the request of counsel for appellee, the court withdrew the same. It is not probable, under such circumstances, that appellant suffered any injury by reason of such testimony. We do not think the charge of the court subject to the criticism made against it in the twelfth assignment of error.

[7. The nineteenth assignment is as to the refusal of the court to charge the jury as requested, that the plaintiff was not entitled to recover anything for mental suffering. The court, in its principal charge, submitted mental suffering as an element of damages. The contention of the railway company is that this was error, for the reason that mental suffering was not pleaded by appellee. Appellee alleged that by reason of being struck by the running team, she was “shocked and frightened.” Whatever may be said as to “shock,” “fright” is certainly a mental injury.

As to the appellant, the ice company:

1. The fifth assignment of the appellant, the Austin lee Company, will not be considered for the reason that, taken together with the statement thereunder, it is too general. It complains of the failure of the court to give special'eharge No. 1, without informing us what said charge was, and refers us to the entire statement of facts in support of its contention.

2. We do not think that the .action of the court in refusing to receive the verdict, and in giving the supplemental- charge, and in receiving the final verdict of the jury, is subject to the criticisms made against it in the sixth assignment of error. The jury attempted to return a verdict against each of the defendants for. an amount aggregating $6,-000, but apportioning this amount between the defendants. This they could not legally do, and the court so instructed them in a supplemental charge, and afterwards gave the jury a proper answer in response to a question propounded by them to the court. Thereupon, the jury retired and returned a verdict for the same amount against both the defendants.

3. We find no error in the eighth and ninth paragraphs of the court’s charge. As we understand these paragraphs of the court’s charge, they are the reverse of the deductions drawn therefrom by the ice company, as shown by its seventh and eighth assignments of error. None of the other assignments of error on the part of the ice company are directed against the appellee. If error was committed against the ice company as to its cross-action over against its codefendant, this is no reason why the case should be reversed as to the appellee.

4. We will next inquire as to whether or not there was error as to the cross-action of the iGe company against its eodefendant the Austin Electric Street Railway Company. The court sustained a general demurrer to said cross-action. The pleading in’ this regard would certainly have been better if it had stated with clearness the facts relied upon in said cross-action, but whether or not they were sufficiently stated as against a general demurrer, it is not necessary for us to decide, as this case is to be reversed upon another point, and the pleading „will doubtless 1 be amended before another trial. We are not apprised upon what ground the general demurrer was sustained. If it was upon the proposition that there can be no contribution between joint tort-feasors, we think the trial court was in error, as it is evident the ice company did not seek contribution from its codefendant, but sought to recover the entire amount of any judgment that the plaintiff in the case might recover against it jointly or separately.

As we understand the law, where one party has, by his negligence brought about a condition, and another party is guilty of negligence in not recognizing and acting upon such condition, and a third party, without negligence, is injured by reason of the joint negligence of the two parties, he may recover against both; and, as between the injured innocent party and the joint wrongdoers, there will be no inquiry as to the comparative negligence of the two, and no apportionment of damages based on such comparison, in such case, the negligence of both of the parties is the proximate cause of the injury to the innocent party. But as to the two negligent parties, if the negligence of one was merely passive, or was such as only to produce the occasion, and the other negligent party was the active perpetrator of the wrong, the former may recover over against the latter. As between the two negligent parties, the negligence of the active perpetrator of the wrong would be the proximate cause of the injury to the party whose negligence did no more than produce the condition. City of San Antonio v. Smith, 94 Tex. 266, 59 S. W. 1109; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Kampmann v. Rothwell, 101 Tex. 540, 109 S. W. 1089, 17 L. R. A. (N. S.) 758.

The ice company offered to prove that the president of the street railway company admitted to the secretary of the ice company that it was responsible for the injury, both to the plaintiff and the ice company. This admission was not made in a casual conversation, but in a transaction in which the president of the railway company, as the representative of said company, paid the ice company $61, for injury done to its wagon in said collision, which fact it offered to prove. Upon objection of the railway company, the ice company was not allowed to make this proof; the objection being that 'said testimony was irrelevant and immaterial as to it, the railway company. The evidence offered was relevant to the issue between the ice company and the railway company, and certainly it was very material. It may be that the president of the railway company had no authority to make such admissions on behalf of the railway company, or that the same were made by way of compromise; but no such objection was made, and therefore, presumably, none such was tenable.

5. We do not think that the excluded testimony, shown by bill of exceptions No. 4, was admissible for the reason that it was not sought to prove, as a fact, the statement of the motorman as to how s.aid accident occurred, or that said statement was made under such conditions as to make either res gestee, or in the nature of a report of an inferior to a superior officer, but only that the president of the railway company stated to the secretary of the ice company, that the motorman (time, place, and circumstances not given) made certain statements in reference to the collision. ' This evidence was hearsay.

Finding no error in the record as to the appellee, the judgment as to her is affirmed. For the error of the court in refusing to allow the ice company to prove the admissions of the president of the railway company, as above indicated, the judgment of the trial court, as between the Austin Electric Railway Company and the Austin Ice Company is reversed and the cause remanded.

Affirmed in part, and reversed and remanded in part.  