Appellant’s brief contains tbie following statement of the ’nature and result of this suit:
“E. A. Liggett, appellee, instituted this suit in the district court of Palls county, Tex., as plaintiff against the San Antonio & Aransas Pass Railway Company, appellant, seeking to recover damages on account of injury to plaintiff’s automobile, which injury was alleged to have been caused by the negligence of .defendant.
“The plaintiff alleged that the defendant was the owner of a line of railway which runs through and is operated in Palls county, Tex.; that plaintiff was the owner of an automobile and resided in the western part of Palls' county, near the said railroad; that on or about the 4th day of July, 1920, thg said’ railway company was operating the said line of railroad, and running trains into and through Palls county, Tex.
“Plaintiff further alleges that on the 4th day of July, as he was crossing defendant’s track in his automobile at a public crossing, one of appellant’s north-bound trains, without giving the statutory whistle, ran upon and struck plaintiff’s automobile and utterly demolished same.
“Plaintiff further alleges that said automobile was of the reasonable value of $500, and that defendant’s alleged negligent failure to comply with the statute regarding whistling for crossings was the proximate cause of plaintiff’s damage.
“The defendant answered by general demurrer, a general denial, and specially pleaded that the plaintiff and wife were guilty of contributory negligence, precluding a recovery herein.
“The case was tried before a jury and was submitted to them by the court on special issues and judgment rendered on the answers thereto in favor of the plaintiff for $300.
“In due time and in the manner provided by law, the defendant filed its motion for a new trial, and thereafter and before the end of the term at which said cause was tried filed its amended motion for a new trial, which motion was by the court overruled, and to which action of the court the defendant excepted and gave notice of appeal, and thereafter, at the time and in the manner provided by law, filed its appeal bond, and the case is now before this court on appeal.”
Appellee concedes the correctness of that statement, with the addition that the plaintiff proved there was no market value of the car at and near the place where it was destroyed, and that its reasonable value was $500 or $600, and after' it was so struck by appellant’s train it was demolished and rendered worthless.
Appellant’s brief contains ten propositions of law, all of which have been considered, and the conclusion has been reached that, as applied to this case, none of them show that the judgment should be reversed; but this opinion will be limited to a discussion of three questions only, which are regarded by us as the most important in the case.
The case was submitted to the jury on special issues. The first issue submitted was:
“Did the engineer blow the whistle for the crossing shortly before or at the time he reached a point within 440 yards of the crossing?”
To which the jury answered “No.”
The second issue was whether or not the fireman rang the bell during the time referred to in the first question. The jury answered “No.”
In answer to the third and fourth issues submitted, the jury found that the failure to
[1] Appellant contends that the plaintiff did not allege in his pleading that defendant failed to ring the bell; and therefore it was reversible error for the court to submit that issue to the jury.
Plaintiff’s petition specifically alleged that the defendant failed to give the statutory whistle upon approaching the crossing; and it also contained this averment “that, if the employés had sounded the whistle or rung the bell, plaintiff would have heard the same, and would not have suffered the damage complained of.” There is no other reference in the plaintiff’s petition to the failure to ring the bell, and, if a special exception had been urged against that averment, it should have been sustained, but the defendant’s answer did not contain any such exception, nor even a general demurrer.
[2] The rule is that, as against a general demurrer, all reasonable inferences are allowed in favor of the pleading, and we think the averment in the plaintiff’s petition that, if the defendant had rung 'the bell, plaintiff would have heard the same, carries with it the implication or inference that the defendant did not ring the bell. We also hold that, if the pleading did not present that issue, its submission to the jury was immaterial, because they found that the defendant failed to blow the whistle, and that was the proximate cause, in part, of the injury sustained by plaintiff.
[3] When a case is submitted upon special issues, an immaterial issue does not necessarily require a reversal of the case, though the jury may find for the plaintiff upon the immaterial as well as the material issue. .
[4] There is no merit in the contention that the case should be reversed because the jury did not find that the injury complained of was caused entirely by the failure to blow the whistle. Construing the entire verdict together, we think the jury meant that the injury to the plaintiff’s automobile was caused partly by the failure to blow the whistle and partly by the failure to ring the bell.
[5] But, be that as it may, the rule of law is that, when a tort-feasor has contributed to the injury complained of, though there may be other tort-feasors, he may be sued alone, and a recovery had against him for the injury done by all of the tort-feasors. Of. course, that rule does not apply when the plaintiff himself is guilty of negligence, although the defendant may also be equally guilty, because the law does not permit a plaintiff to recover where he participates in the wrong complained of; but in this case the jury found that the plaintiff and his wife were not guilty of contributory negligence in driving their automobile upon the railroad track on the occasion in question. This being trpe, and the jury having found that the defendant failed to give the statutory signals, and that such failure was partly the cause of the injury, the defendant was properly held liable therefor.
[6] We also hold that, as the plaintiff’s testimony showed that there was no market value for his car at or near the place where it was injured, he had the right to prove its intrinsic value, although there may have been a market for such car at Waco, in an adjoining county.
All the questions presented in appellant’s brief have received due consideration, and our conclusion is that the judgment should be affirmed; and it has been so ordered.
Affirmed.
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©=».For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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<@s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes