On Motion for Rehearing.
GRAVES, Justice.After painstaking reconsideration of the cause, the full court — Justice LANE having withdrawn his originally noted intention to dissent and concurred in the opinion then delivered as well as in this one — has overruled the motion for rehearing, but in deference to the earnest contention of the able counsel for appellee that our former opinion inaccurately reflected the facts shown in the record, especially with reference to the objections made to the testimony of Mrs. Martini, and to the conditions under which the accident in this instance happened, this addendum is made to what was before written:
Mrs. Martini made five statements with reference to what the child’s mother told her. The first, appearing at page 193 of the statement of facts, is this: “The child was absolutely unnormal. He was a small child, and if he was going one way his head would turn the other way and his eyes were crossed, and he was deformed, and the mother told me the child was in the hospital with some disease, and the shots they gave him caused the affliction. The mother told me that.”
No.objection was made to this at that particular time, but since it was per se incompetent as being hearsay and was offered against a five-year old child, it would appear to have been the court’s duty to notice and exclude it anyway. Cartwright v. Wise, 14 Ill. 417; Turner v. Jenkins, 79 Ill. 228; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Taylor v. Rowland, 26 Tex. 293; Ann. Cas. 1913B, 443 note; Glade Coal Mining Co. v. Harris, 65 W. Va. 152, 63 S. E. 873; 31 C. J. (N. S.), Infants, pars. 254, 304, and 317. .
Her second statement, appearing on page 194 of the statement of facts, given on cross-examination in response to the question, “Have you talked to the boy any since then?” was as follows: “Oh, yes, a lot, and I talked to the mother that very day, and the mother said the child wasn’t hurt.”
This was clearly not responsive to the question asked, and while no motion was made at the timé to strike it out, the court’s duty with reference to it, under the authorities cited supra, would be the same as with reference to the preceding one.
The third and fourth statements, appearing at pages 198 et seq. of the statement of facts, with accompanying proceedings, were these:
“Q. (By Mr. Wigley): 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 case.
“Mr. Harris: She is not a party to this suit, and anything she may have said would be hearsay. I have not cross-examined her in reference to any statement she made, if any, and it is not binding on the child.
“Court: Overruled.
“Mr. Harris: Exception.
“Q. (By Mr. Wigley): What did she want you to testify to? What did she tell you that she wanted you to testify to? A. 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.
“<⅞. Hid she want you to testify to the con-ditioh of the child before the accident?
“Mr. Harris: Same objection, and it is immaterial, has no bearing on the case, and the mother is not a party to the suit.
“Court: Overruled.
“Mr. Harris: Exception.
“A. She wanted me to come to the 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.”
Our former recitation that this matter was objected to, among other reasons, because no ground for impeachment of the mother had been laid, was in that respect erroneous, that particular objection only not having been offered ; but that inaccuracy does not affect the substance of the holding made in reference *232to the matter, especially since the context of the record as a whole not only indisputably shows that no such predicate had been laid, but the appellee’s counsel expressly disclaims having ottered the testimony for any such purpose or implication.
The fifth statement, shown on page 199 of the statement of facts, is as follows: “The same, and 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.”
Again no special objection, to this wds made when it was offered, but the objections formerly noted — with the exception herein stated — had just been made to it and overruled, hence it was unnecessary to repeat them when it was again ottered. Jones on Evidence, Civil Cases (3d Ed.) § 894; Fort Worth & Denver C. Ry. Co. v. Thompson, 75 Tex. 501, 12 S. W. 742, 743.
As concerns the statements in the former opinion that “no witness fixed the speed of this car at 12 miles per hour,” and “here the accident happened on an upgrade'track that was very sandy,” no error of substance appears; the only witness by whose testimony it is claimed this car was moving at twelve miles an hour, while admitting that she had stated its speed was twelve miles at the first trial of the cause, declined on the trial from which this appeal proceeds to testify that it was going over ten miles per hour.
The pictures of the scene of the accident not only show that the intersection of the streets where it happened was very sandy when they were taken, but different witnesses testified that the same conditions as there shown prevailed at the time of the accident. Furthermore, the appellee’s witness Mr. Greenwalt, a passenger on the car at the time of the accident, when asked on cross-examination at this trial if he had not on the former trial testified that he had not been conscious of the slowing up of the car until the emergency brake was applied, testified as follows: “I don’t think so. I protested at the form of that question at the time, saying that the speed was being reduced, either by an ordinary application of the brake, or else hy the fact that there is an upgrade going into that hloolc all the way from 13th Street.” The italicizing, which furnishes direct support for our former statement on this feature, is our own.
It is not felt that any further discussion as to the argument of counsel before held prejudicial be here appended, since on the reconsideration that disposition of it has been adhered to as being in all material respects based upon what actually took place.
As indicated, the motion has been overruled.
Overruled.