Ida May Hendricks recovered judgment in a district court of Dallas County, Texas, against Dallas Railway & Terminal Company, for damages on account of personal injuries, medicine and doctor’s bills in the sum of $1,308, alleged to have been caused by negligence of the Railway Company, its agent and servant, in starting the street car, on which she was a passenger, with a sudden jerk, before she had a reasonable opportunity to seat herself or find a hand-hold, thereby throwing her forward on her stomach, across a twelve-inch “step *901up” or riser, from the vestibule into the aisle of the street car; resulting in injuries to her left leg, back, muscles, ligaments, nerves, kidneys and bladder. She claims that such injuries aggravated a chronic arthritic condition of the lumbar region of her back and caused blood to pass, for a number of days, from her kidneys and bladder. It is difficult to understand the medical jurisprudence as related by expert medical witnesses in this case, to the effect that injury to the kidneys and bladder causes them to pass blood, and that a chronic arthritic condition of the back or lumbar region of a human body, could result from a fall on the stomach, on a perfectly flat floor, by a strong, active, healthy housemaid or servant. However, in view of our disposition of this appeal, we deem it ■ unnecessary to discuss the evidence bearing on the theoretical alleged injury suffered by Ida May Hendricks, and the excessive verdict of the jury. Suffice it to say, we think the jury was rather liberal in assessing $1,308 damages for an aggravation of a pre-existing chronic arthritic condition of plaintiff’s back, and the claimed injuries to her kidneys and bladder, from a fall on her stomach.
On the trial of the cause, defendant sought to have the prior existing infirmities, admitted in pleadings and raised by evidence, affirmatively eliminated from consideration of the jury; that plaintiff is entitled to recover only to the extent her ailments were aggravated by defendant’s negligence, if any, and that the jury should not consider suffering from an infirmity not caused by the accident. The defendant made timely objection to the court’s charge (Issues 29 and 30) relating to the amount of recovery for plaintiff’s past and future diminished capacity to work and earn money, physical pain, and mental suffering resulting directly and proximately from the injuries sustained by her on the occasion and at the time of her injury, and the amount of the doctor’s bills as a result thereof. In the case of Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S. W.2d 683, 685, Judge Hickman, speaking for the Supreme Court said:
“It has long been a settled rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for improper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence. In cases submitted upon a general charge that rule has been many times announced and applied. St. Louis Southwestern Ry. Co. of Texas v. Johnson, 100 Tex. 237, 239, 97 S.W. 1039; Gulf, C. & S. F. Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S.W. 66; Galveston, H. & S. A. Ry. Co. v. Coker, Tex.Civ.App., 135 S.W. 179, error refused; Gulf, C. & S. F. Ry. Co. v. Brown, 16 Tex. Civ.App. 93, 40 S.W. 608, error dismissed; 17 C.J. 1074, § 378.”
On the question, Dr. Nash testified that the arthritic spurs shown in the X-ray of Ida May Hendricks’ spine could very easily have been formed within the period of one year, and it was his opinion they were caused by the fall; and he further testified that the medical profession did not know what causes arthritis. It is conceivable that the jury believed Ida May Hendricks’ fall caused the arthritis, and having confined herself, by pleading, to aggravation of such pre-existing condition, the court should have confined the jury’s consideration of damages to the element of aggravation. The Railway Company was entitled to an affirmative exclusion of such element of damage, past and future, as might be attributable to prior existing arthritis of the injured plaintiff. On another trial, the charge of the court should specify the elements to be considered by the jury in measuring plaintiff’s damages, and, in addition thereto, specify such elements not subject to be considered.
Appellant further complains of the action of the trial court in allowing plaintiff, over its objection, to introduce in evidence its abandoned pleadings, and the testimony of appellant’s attorney that he prepared such pleadings; also prepared subsequent pleadings on which defendant went to trial. The objectionable pleadings interposed a general denial, followed by special plea that, at the time of the alleged accident, “plaintiff proceeded from the front of the car to the rear; without fault on the part of the operator of the street car, she stumbled and fell; that during all of said time, the street car remained motionless; and that plaintiff’s injuries, if any she sustained, were the result of her own failure to exercise ordinary care for her own *902safety.” Plaintiff then offered the testimony of Mr. Taylor, attorney for the Railway Company, and he was compelled to testify, over defendant’s objection, that he “prepared the pleadings, predicating the first on the allegation that the street car remained motionless all the while, and that there was no allegation that the street car might have been moving; and, in the subsequent pleading, alleged that the street car remained perfectly motionless and that her (appellee’s) fall was due to certain acts of her own; and, in the alternative, if it is shown to have moved, it started in the usual manner.” The record shows that the testimony was sharply controverted on the issue of whether the street car was at a standstill, and appellee’s injuries the result of her own negligence. It could hardly be said that the abandoned pleadings were an admission on the part of the Railway Company, or were beneficial to plaintiff’s theory of the case, based on the street car having started with a sudden and violent jerk, and being in motion at the time Ida May Hendricks fell to the floor. Plaintiff’s attorney frankly stated that the abandoned pleading and testimony of defendant’s attorney were offered “just to show he (appellant’s attorney) had changed his mind,” this admission being made when they were admitted in evidence. It is clear, we think, that the abandoned pleadings and testimony of the attorney for the Railway Company were offered to prejudice the jury on the change of defense, and were not offered as an admission of fact, either in favor of plaintiff’s cause of action, or against the defendant. It could have no effect other than to prejudice the jury against the Railway Company for pleading inconsistent defenses, which it had a clear legal right to plead; and we think it was offered for prejudice, and calculated to accomplish that result. Courts may not sanction the introduction of evidence, merely to prejudice the rights of litigants.
Where plaintiff contends that she was injured as the result of the starting of the street car with a sudden jerk, and the defendant answered that, at the time of plaintiff’s fall, the street car was motionless; and, in the alternative that, if the street car did move at the time of plaintiff’s fall, then it started in the usual and customary manner, with no unnecessary, violent jerk. It was reversible error for the court to admit in evidence, over defendant’s timely objection, its abandoned answer, wherein it had plead that the street car was motionless, with no alternative plea; such pleadings are not an admission of fact. Art. 2006, T.S.1925; Houston, E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 97 Am.St.Rep. 877; Missouri, K. & T. R. Co. v. Maxwell, Tex.Civ.App, 130 S.W. 722.
On motion for a new trial, appellant contends that the jury was guilty of misconduct, in relating facts (not raised by pleadings or disclosed by evidence) calculated to prejudice the jury, and attempt to answer the special issues to effect a judgment in favor of plaintiff; thus depriving the Railway Company of a fair and impartial trial; on account of which, the trial court erred in refusing to set aside the verdict and grant a new trial. We have carefully considered the assignments, and deem it unnecessary to discuss the testimony offered on the motion. Such misconduct will likely not occur on another trial. However, we think the conduct of the jury was such that defendant’s motion for a new trial should have been granted.
Reversed and remanded.