On Motion for Rehearing. While I concur in the disposition of this case, on consideration of the motion for rehearing, I cannot agree with the grounds stated in the original opinion. In my opinion the assignments of plaintiff in error raising the question that on the verdict judgment should have been rendered in his favor should be considered This, it seems to me, presents grounds of fundamental error.
It is further my belief that the assignments questioning the action of the court on plaintiff in error's motion for judgment non obstante veredicto should likewise be considered.
However, if it be assumed that the representation of defendant's agent, as found by the jury, constituted a true warranty, and the latent defect in the spring a breach thereof, in my opinion the judgment was still properly for the defendant. Even though this be an express warranty, it did not constitute defendant in error an insurer of the safety of plaintiff. Bruce v. Fiss, Doerr Carroll Horse Co., 47 A.D. 273,62 N.Y.S. 96; Razey v. J. B. Colt Co., 106 A.D. 103, 94 N.Y.S. 59.
The measure of damages in a breach of warranty is such as directly flows from a breach thereof and such as may be fairly said to be in the contemplation of the parties at the time of making the warranty. 37 Tex.Jur. par. 310, p. 676.
Under the finding of the jury this warranty or representation was made without negligence after the exercise of due care. Furthermore, the evidence of negligence in the management and driving of the car was for the jury. In passing upon the credibility of testimony the sole question is not the motive or interest that may actuate the witness. The jury may consider the ability and opportunity of the witness in question to receive correct impressions and to impart them truly. This accident occurred at night. It unquestionably occurred suddenly and unexpectedly. At the instant of the occurrence the parties participating therein necessarily received a great shock and jar. Their impressions as to how the accident occurred may be entirely at variance with the fact. It would seem to the writer that it might be almost impossible for the occupants to tell with exactitude just exactly what happened. The jury found the breaking of the spring was the proximate cause of the injury to plaintiff in error. It might be observed there is no finding as to what was the cause of the breaking of the spring at the point in question. Now force broke the spring. It broke where there was a previous crack. But the force applied may have been sufficient to have broken a spring in perfect condition.
My further conviction is that the want of care in the management of the car precludes a recovery by plaintiff in error. It seems to me that Jones v. George, 61 Tex. 345, 363, 48 Am.Rep. 280, governs here. It is unnecessary to recite the facts involved in that well-known landmark of the law. This quotation will suffice:
"Might he, by ordinary care, have ascertained whether it was or not, and if found not to be, have procured the genuine `Paris green' in time to have preserved his crop in whole or part, as he subsequently did, and preserved a part of his crop last attacked by the worm?
"These were questions of which, in such a case as this, inquiry should have been made by the jury, and if in reference to such matters it was found that the appellant had not used that ordinary care which a prudent man would have used under the circumstances, then he ought not to recover *Page 1078 for such loss of his crop as might have been avoided by ordinary care."
See also C.J. pages 888, 889, § 866.
Plaintiff in error's injury, under the finding of the jury, would not have occurred but for his want of ordinary care.
I concur in the overruling of the motion.