The suit is for damages against the electric company alleged to have resulted to the five year old child, Jacob Long, Jr., from the collision between it and one of the company’s street cars at the intersection of Avenue L and Eleventh street in the city of Galveston, upon averments that the child’s injuries had been the proximate result of negligence upon the part of the operatives of the car in a number of detailed particulars; the issues of negligence raised by the pleadings and proof were submitted to a jury in special inquiries, all of which in final effect were answered favorably to the electric company, whereupon judgment upon the verdict entered for it.
On the appeal by the child through its next *229friend, it is contended that the verdict lacked support in the evidence, being contrary to the overwhelming preponderance thereof, that the court erred in admitting the testimony of Mrs. Martini as to alleged statements made to her by the child’s mother after the accident, also in admitting the testimony of the witness McLin as to certain tests made by him a considerable time before this accident as to how far a street car moved after its brakes were applied, and in permitting counsel for the street car company, while arguing the cause to the jury, to state to them, among other things: “Street cars do ring their bells; they are instructed to do that. It may be obnoxious to the people whose homes they,are passing, but it is the only safe thing for them to do. They do it when they pass my house.”
These presentments will be disposed of in the order given.
The first one, concerning the claim for an overwhelming preponderance of the evidence against the verdict, need not be decided, in view of the conclusion that the court did err to the prejudice of appellant in admitting the testimony complained of under the next two, since the evidence may not be the same upon another trial.
As concerns the latter two, we think the court should have, in the circumstances, excluded both the challenged testimony of Mrs. Martini and Mr. McLin.
The injured child’s mother, a negro woman named Parilee Long, was not a party to the suit, which was brought and prosecuted by its father as next friend, and while a witness on the stand was neither asked, if she ever talked to Mrs. Martini at all nor with reference to any conversation had with her concerning this child or this case; no predicate of any sort, therefore, had been laid for impeaching her as a witness by reason of anything which may have occurred ex curia between her and Mrs. Martini. Neff v. Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Ayres v. Duprey, 27 Tex. 594, 86 Am. Dec. 657; The Charles Morgan v. Kouns, 115 U. S. 69, 5 S. Ct. 1172, 29 L. Ed. 316; 28 R. C. L. 636,
After the child’s mother and other witnesses in its favor had given testimony tending to establish the fact of the collision, its having been caused by the negligence of the appel-lee’s operatives, and of its having proximately caused an epileptic condition then affecting the child, Mrs. Martini as a witness for the appellee, after first giving testimony tending-in purport to indicate that the suit itself was the result of malingering, was then, over strenuous objection on the part'of appellant’s counsel that it was hearsay, not binding upon the child, not based on any predicate for impeachment of its mother, irrelevant and immaterial, was permitted to further testify that the mother had told her the child was in the hospital from some disease, the “shots” they gave it having caused its affliction, and that the very day of the accident she had further told her the child wasn’t hurt, and then the witness added these further statements as to what had passed between her and the child’s mother: “She wanted me to testify that the child’s condition was caused by the accident, and I said I couldn’t do it because I had children of my own, and I would tell the truth; she wanted me to come to court and testify that the child was normal before the lick, but I told her I couldn’t do it because he wasn’t hit bad. He fell in front but he wasn’t badly hit; the next day she came in the store with the child, and he walked in and out, and the doctor came and he said there was nothing the matter with the child, so she told me.”
It clearly appears from the colloquy between counsel when the stated objections were made to the admission of all this testimony, not only that it was not admissible for that purpose because, as indicated, no predicate had been laid for it, but also that it was not offered for the purpose of impeaching the child’s mother, but solely on the theory that the child as a litigant was bound by these statements to Mrs. Martini as admissions on the part of its mother:
“Q. What did she want you to testify to?
“Mr. Harris: That is hearsay.
“Mr. Wigley: It is by the most interested party in this case.
“Mr. Harris: She is not a party to the suit.
“Mr. Wigley: It is the mother of this child, who is clearly responsible for what may have been done or said to make out this ease.”
These quoted express declarations of the purpose for which the statements were offered negative any other and rebut any suggestion that such declarations were, or could have been, receivable as indicating the interest of the mother in the case.
In the first place, they were not receivable as admissions of the mother against the interest of the child. Galveston H. & H. Ry. Co. v. Moore, 59 Tex. 64, 46 Am. Rep. 265; Gersdorff v. Torres (Tex. Com. App.) 293 S. W. 560; Houston & T. C. Ry. Co. v. Bradley, 45 Tex. 171; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Neff v. Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 59; White v. Joyce, 158 U. S. 128, 15 S. Ct. 788, 39 L. Ed. 921; 14 R. C. L. 291; 28 R. C. L. 636; 22 C. J. 363, 407; 31 C. J. 1143; 32 C. J. 777.
In the next place, the appellee having thus offered the testimony as admissions of the mother binding on the child, and objection having been made to it on that ground, it was error to admit it at all, under the rule as stated by Wigmore on Evidence, § 18, as follows: “If several facts are included in the *230offer, some admissible and others inadmissible, then the whole (if properly objected to) is inadmissible; in other words, it is for the proponent to sever the good and the bad parts. Similarly, an offer of a fact for two purposes is erroneous if the fact is inadmissible for one of the purposes, though it would have been admissible for the other if offered for that alone. An offer of a fact for an inadmissible purpose A is properly excluded, though the same fact would have been admissible for purpose B. Conversely, an offer of a fact for purpose B is properly admitted, even though the same fact would have been inadmissible if offered for purpose A; this follows from the .doctrine of multiple admissibility.”
To conjecture that, in the setting given, its effect was not only potentially but very probably to the nth degree prejudicial — that is, that it carried an imputation from a white woman that the negro child’s whole case had been a frame-up, with its negro mother the chief compurgator — would be like undertaking to demonstrate the obvious. Bain Peanut Company of Texas v. Pinson (Tex. Com. App.) 294 S. W. 536; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Britain v. Rice (Tex. Civ. App.) 183 S. W. 84.
The witness McLin, after merely stating that he had participated within the three or four years prior thereto in making a test to determine the distance within which it takes to stop one of these one-man air-brake ears moving at a certain speed on a certain kind of track, was asked what distance “was found to be required to stop one of these cars moving 12 miles an hour, with good brakes, on a dry, level track, with an emergency application of air,” answered “32 feetin making that statement, he admitted that such a distance depends upon the condition of the track, and that he did not know what effect sand on the track at the time, or any other speed, would have upon it, saying “there is a variation according to the brakes, but I don’t know what it would be.”
These declarations were received without even an approximate showing, as to the exact time or place of the test, whether it was in winter or summer, whether the size or the weight of the car was comparable with that here involved, or whether the car tested was loaded or empty, or whether any of the other contributing conditions were similar to those obtaining in this instance. Further, no witness fixed the speed of this car at 12 miles per hour — that at which the test Mr. McLin so participated in was had. Further, the McLin test took place on a level track without sand on it, while here the accident happened on an upgrade track that was very sandy, and the car itself was loaded with the noon-hour crowd on it. The evidence showed sharp issues between the witnesses here both as to the speed of this car, which was variously placed at 8, 10, or 15 miles per hour or. better, while the distance as to how far it ran after the emergency air brakes were applied varied from 2 or 4 feet to all the way across Eleventh street.
Under our authorities, as against the objections made on that account, this testimony as to the test so participated in by Mr. McLin was inadmissible, in the absence of a showing upon appellee’s part that the material and contributing facts appertaining thereto were at least similar to the conditions prevailing at the time of this accident. 10 R. O. L. 1002, par. 190; 17 Texas Jr. 401, 402, par. 142, and cited cases in footnotes 16, 17; Texas & P. Ry. Co. v. Graham & Price (Tex. Civ. App.) 174 S. W. 297; Harris v. State, 62 Tex. Cr. R. 235, 137 S. W. 373; Houston & T. C. Ry. Co. v. Ramsey, 43 Tex. Civ. App. 603, 97 S. W. 1067; Price v. Charles Warner Co. (1899) 1 Pennewill (Del.) 462, 42 A. 699; Hisler v. State (1906) 52 Fla. 30, 42 So. 692.
The challenged argument of appellee’s counsel was improper and harmful, because the statements made were not' based upon the evidence, hence constituted testimony upon counsel’s part, and had a direct bearing on vital issues in the case. Although objected to on that ground at the time, the court' refused on appellant’s request to instruct the jury not to consider the remarks, thus magnifying their importance in the minds of the jury, and making the error of counsel that of the court. Gulf, C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583; Chicago, R. I. & T. Ry. Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331; Bruyere v. Liberty Nat. Bank of Waco (Tex. Civ. App.) 262 S. W. 844; Missouri, K. & T. Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; Dallas Ry. & Terminal Co. v. Moore (Tex. Civ. App.) 52 S.W.(2d) 104; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435; Dallas Ry. & Terminal Co. v. Smith (Tex. Civ. App.) 42 S.W.(2d) 794; Bell v. Blackwell. (Tex. Com. App.) 283 S. W. 765: Robbins v. Wynne (Tex. Com. App.) 44 S.W.(2d) 946.
To make plain the rationale of this ruling, as well as the applicability of the authorities cited as in support of it, from the state of the record:
It is true the undisputed evidence was to the effect that the bell on the street car had been ringing on its approach toward Eleventh street from near the middle of the block it was running along, and that the location of appellee’s counsel’s house was not given; but these very conditions disclose the harm that lurked in thus reaching out from a clear sky and supplying the testimony the jury otherwise lacked, “that they always rang the bell, were instructed to do so, and did so when *231they passed my house,” thereby very possibly leading the jury to conclude that the motorman was not ringing the bell' because of the child’s presence near the track, or because of a purpose of his own to cross the intersection without slackening his speed, since they found in appellee’s favor on the closely contested issues of discovered peril, negligent speed, and unavoidable accident, when, without this new information, the proof — inclusive of that from the conductor himself— strongly tended to indicate that he had seen the child all the time from about the middle of the block back, or in ample time to have stopped or slowed down on reaching the crossing, but that, instead of doing either, he so clanged the bell in preference, intending to take the intersection on the run to make up for the extra stops he had ahead at that noon-day time.
Por the errors pointed out, the judgment' has been reversed and the cause remanded, with .Justice LANE dissenting,
Reversed and remanded.
LANE, J., dissenting.