Appellee, Santiago Garcia, who was plaintiff below, instituted this suit in the 111th district court of Webb county against appellant, Hector Moneada, defendant below, asking for damages for personal injuries sustained by him in an automobile collision between the car of Moneada and the car in which Garcia was riding as a guest. Manuel Ynguanzo was the owner and driver of the car in which Garcia was riding as a guest;
The collision occurred in the city of Laredo at the intersection of Juarez avenue and Washington street. Appellee was going north on Juarez avenue; appellant was traveling west on Washington street. When appellee got into Ynguanzo’s car, the car was not running well, and appellee used the choker and succeeded in getting the car to run smoothly. Appellee was riding on the right side of the front seat. In the center of the car was the ignition key and hand brake. Under the pro- • visions of a city ordinance of 'Laredo, automobiles traveling on streets have the right of way over automobiles traveling on avenues. Both appellee and Ynguanzo testified that they saw the car driven by appellant when it was in the middle of the block, some 125 feet from the point where the collision occurred. It was also shown that by turning off the ignition and applying the hand brake the guest car could have been stopped in a distance of three to five feet.
Appellant excepted to the main charge because it did not submit to the jury the question as to whether or not plaintiff was guilty of negligence in not stopping the car •in which he was riding, and the further question as to whether or not such negligence was the proximate contributing cause of the injury. Appellant also prepared and presented to the court special requested charges covering these questions. The court overruled the exceptions and refused the specially requested .charges. This action of the court constituted error, requiring the reversal of this cause.
The court submitted the question of ap-pellee’s failure to warn the driver of the approaching danger, but this did not take the place of the failure of the plaintiff to stop the car by the use of the means at his command. This defense was specially pleaded by the appellant, raised by the evidence, exception was taken to the main charge for failure to submit this issue, and the same was contained in a special requested charge presented by appellant. Under all the circumstances, it was error for the court to refuse this specially re
Appellant complains of alleged misconduct of the jury, in that the jury, before answering the special issues, first decided who should win the lawsuit. The testimony of the jurors is conflicting, or rather contradictory, as to whether or not this agreement influenced their answers. The trial court overruled the motion for a new trial, thus resolving this contradictory evidence in favor of appellee. The trial court did not abuse his discretion in so finding. Monkey Grip Rubber Co. v. Walton (Tex. Com. App.) 53 S.W. (2d) 770.
For the error pointed out, the judgment is reversed and the cause remanded.