In its assignments appellant complains of the action of the trial court: (1) In refusing a special charge requested by it; (2) in admitting as evidence certain testimony offered by appellee; and (3) in excluding as evidence certain testimony offered by it — and also complains of the verdict on the ground that it was excessive.
Appellant presented to the court, with a request that he give same to the jury, two special charges on the issue as to contributory negligence on the part of appellee which it thought was made by the testimony. Both of the charges were predicated on knowledge by appellee, as he approached the crossing, of the fact that cars were then being switched toward the street on appellant's main line track. In the one numbered 3, which the court gave, the jury were told, In effect, to find for appellant if they believed it was negligence on the part of appellee to stop his team "within a few feet" of the side track. The charge refused, No. 6, had it been given, would have told the jury, in effect, to find for appellant if they believed it was negligence on the part of appellee not to stop his team "while he was at a safe distance" from appellant's tracks. It is plain, we think, that each of the charges, had both been given, would have submitted one and the same question to the jury for determination, to wit: Was appellee guilty of negligence in stopping his team as close as he did to the side track? Having submitted the question to the jury when he gave the special charge numbered 3, of course the trial court did not err when he refused to repeat it by giving the special charge numbered 6.
The testimony appellant objected to, and which the court nevertheless admitted, was that of appellee and his witness Dr. Hart in regard to transactions between appellee and one Nellie Howard, and to conversations he had with her and others about those transactions. No useful purpose would be served by detailing the testimony here. We have considered it in connection with other testimony in the record, and have reached the conclusion that the court did not err when he overruled appellant's objections and admitted it.
The testimony excluded, and which appellant thought ought to have been admitted, was that of Dr. J. A. Smith, a witness for appellee, and one of the physicians who treated appellee for the injury he claimed he had suffered. On its cross-examination of Dr. Smith appellant proved by him that in the nine years preceding the trial he had been a witness for plaintiffs, represented by appellee's attorney B. Q. Evans in about 110 damage suits against railway companies, and had never been a witness for a defendant in such a suit. Appellant complains that the court refused to permit it to further prove by the witness that he had been paid contingent fees for testifying in a number of the suits, and then had a suit pending in the district court of Hunt county to recover $700 for testifying in one of them, in which he alleged in his petition that it was on his testimony that the plaintiff in that suit had recovered a large judgment against the defendant. It would have been permissible for appellant to show, if it could, that a fee other than the statutory one was to be paid the witness if appellee recovered a judgment against it, and doubtless it would have been permitted to make such proof had it offered to do so. But proof that the witness had received, or claimed a right to receive, contingent fees for testifying as a witness in other cases would not of itself tend to show interest on his part in the result of this suit, nor bias against appellant. *Page 962
The verdict was not excessive if the consequences to appellee of the injury he suffered was as serious as testimony offered by him indicated they were. The jury had a right to believe that testimony in determining the amount they should award to appellee.
The judgment is affirmed.