(dissenting).
The majority opinion affirming the judgment of the trial court presents a fair ré-sumé of the record upon which the judgment is based. We differ as to the legal conclusions that the operator of the involved street car was guilty of negligence proximately causing appellee’s alleged injuries; that the appellee was not guilty of. contributory negligence; and that the extent of appellee’s alleged injuries justifies the amount recovered, — $12,518. Other assignments of error — I am not in accord with the majority — they will receive casual mention.
The ofttime- pronouncement that negligence, ' direct and contributory, proximately causing injury and the extent of injury are issues determinable by the trier-of facts, and where there .is substantial evidence in support of the findings and judgment of the trial court, the case must.be affirmed, need not be labored here. In keeping with the general practice of appellate courts of this state, it.is always with reluctance that *987the findings of a jury on issues of fact and' the judgment of the trial court are set aside; however, when such findings and judgment are so greatly against the overwhelming weight of the evidence as to he clearly wrong, appellate courts have the authority, and it is clearly their duty, to review and set aside such findings and judgment. Here, however, it may be mentioned, courts are agencies of the Sovereign, created under its authority for the purpose of hearing and determining issues regarding legal rights; and where one is deprived of such rights, courts should not hesitate,— or adopt an appeasing agreeable attitude at the expense of duty.
The issues involved in this appeal are clearly set out in the majority opinion, hence will not be repeated here. The points of difference will be discussed in line with the uncontroverted testimony, principally from appellee herself. It may well be said that the opinion of the majority clearly shows such miscarriage of justice as to warrant a reversal of this cause.
Mrs. Farnsworth was struck by the overhang of the rear end of appellant’s street car as it made a left turn off of Elm Street onto St. Paul Street in the City of Dallas. The street car was approximately 50 feet long and had stopped at Elm Street at the intersection with St. Paul to let passengers on and off the car. Appellee was a passenger; she, with her daughter and grandson, were the last persons off of the car— she preceding her daughter; and, after alighting, she stood in the safety zone provided .by the City until her daughter alighted, the doors of the car closed, the City traffic lights changed from red to green, and the street car started and went forward^ almost the length of the car, rounding the curve at one or two miles per hour, with bell ringing, before being struck. In answer to questions as to whether there was anyone else in the safety zone, appellee said: “Not to the best of my knowledge.” The police officer on duty at the' intersection testified: “Q. How much time was there between the time you saiv her there and the time the car hit her? That is what I am trying to get at. A. Approximately ten seconds. Q. About the time you could count ten? A. Yes, sir.1 Q. And during part of that time some one else was getting off of the car? A. No, sir, the car had. already closed its doors.” In the light of such related circumstances, can- it reasonably be said that the.operator of the street car was guilty of negligence in failing to. keep a “lookout,” or that he failed to give Mrs. Farnsworth an opportunity to get into a place of safety? Evidently the street car had to move on the green traffic light; the fifty-foot car had moved its length; ap-pellee had safely alighted from the- car; the doors of the car were closed and the car was rounding the corner. The policeman saw her standing in the safety zone and estimated that she stood there ten seconds before the backend' overhang reached her. In all reason, the operator, sitting on the left side of the front end o.f the car was duty-bound, in the discharge of his duty to the public, to look forward and- not backward. He could not have seen her, had he looked; and certainly, not seeing her in a perilous position, then how could he anticipate that, after alighting from the car and standing in the zone of safety, she would, move to a dangerous position ? The answer is apparently negative.
The evidence further shows that the safety zone at this street intersection is 48.5 feet long, marked by corrugated iron buttons about one foot in diameter, placed there by the City of Dallas for safety to the public; and within that zone the street car company had placed another precaution,, a' row of shiny metal buttons about four inches in diameter, extending along the'’street car track and rounding the curve, not closer than four or six inches from the nearest rail, as a safety device from the overhang of ■ its ‘street cars.’ According to a plat introduced in evidence, where appellee was standing there was almost four feet of complete safety space, where automobile or other vehicular traffic is not permitted,'and between the overhang buttons of defendant’s street car and the safety zone buttons. Appellee had ’ ridden street cars for over 20 years in the cities of'St. Paul, Minnesota, and Milwaukee, Wisconsin;- and had ridden, daily, for the last three .years,. on this same line, to and from her place of work. She had seen cars turn; often had stood in. such safety .zones when transfer*988ring from one line to another, and was familiar with the distinctive warnings of a street car as it' starts in motion; but, notwithstanding her experience and observation, and such visible precautions, she says that she did not hear the air escape as the street car doors closed, or any distinguish-' able warning of its movement. She testified that she knew street cars made left and right turns; that they operate on stationary tracks and necessarily must turn with the tracks; but on this occasion she did not know that the car was going to. turn — notwithstanding, at the intersection in question, there were no tracks extending further east on Elm Street, none turning south on St. Paul, and the only track there was the track turning north onto St. Paul Street. ‘ Mrs. Farnsworth, having lived in cities for more than 20 years, undoubtedly knew of traffic congestion at that time of day; thu's, when she alighted from the street car at 3:30 or 4:00 in the afternoon, she should reasonably have expected the intersection to be congested so as to require the' exercise of extreme caution for her own protection, — an essential necessity. Every precaution was provided by the City, and the Street Railway Company for the protection of the public. The City had installed the traffic lights, indicating when to stop and when to proceed; had constructed the safety zone and provided police assistance to aid the public. The street car company had provided the. necessary precaution to protect the public from the overhang of street cars as they make turns. Ap-pellee knew these conditions; was a regular passenger on street cars; therefore,, under such circumstances, can it reasonably be said that appellee was not guilty of contributory negligence proximately causing her injuries? Or, that the operator.of the street car could have reasonably anticipated that she would not exercise the precaution of self-preservation to observe, the safety devices and get beyond the ordinary hazards of the passing street car? Her position is untenable.
In the case of Young v. Dallas Railway & Terminal Co., Tex.Civ.App., 136 S.W.2d 91S, 916, 919, on facts similar as'here, opinion' by Justice Looney of this Court; we held; citing Townsend v. Houston Electric Co., Tex.Civ.App., 154 S.W. 629, writ refused, that: "Where plaintiff, about to board a street car, got too close to the track, and was struck by the overhang of the fender as the car was rounding the curve, he was negligent, as a matter of law, and therefore could not recover for negligence of the motorman in failing to keep a proper lookout.” In that case we also held (citing Fort Worth & D. C. R. Co. v. Shelter, 94 Tex. 196, 59 S.W. 533, where the Supreme Court was considering a similar situation as here) that there must be evidence to show knowledge by the person causing the injury of the perilous position of the person injured (not mere lack of care to discover it), in order to justify the submission of the issue of discovered peril as a ground of recovery; and further, that the person causing the injury is not bound to anticipate negligent conduct on the part of the person injured. .We further held in that case that: “After alighting from the car and ceasing to be a passenger, appellant was absolute master of her own conduct. She could have stood in a place of absolute safety, as she had. done on previous occa-, ¿ions, as her fellow passengers did on the occasion, in question, as often had been done before by the traffic officer and others. Her admissions show that she exercised no foresight, and seems to have been wholly disregardful of her own safety. The fact that appellánt was struck by the overhang shows, inescapably, that she negligently walked and stood in a position of danger, that subject- 1 ed her to the injuries received. .We are of opinion, therefore, that she, alone, was responsible for the accident, hence guilty of contributory negligence, as a matter of law.”
In the light of the above authority, and. on facts similar to the facts here, the operator of the car in question did not and ■could not observe appellee in a perilous position; he-did not know of the accident until on the return trip when he was advised of the occurrence; and after appellee had alighted, the door closed, the car moved almost its length, rounding the curve, certainly he could not have anticipated that any of- the passengers who had alighted from his car would stand in danger, -and -not remain ’in the safety-zone,'as to require him *989to keep a lookout. Appellee was guilty'of' contributory negligence, as a matter of law. To digress a moment, — in the case of Rogers v. Dallas Railway & Terminal Co., Tex. Civ.App., 214 S.W.2d 160, affirmed by the Supreme Court, Dallas Railway & Terminal Co. v. Rogers, 218 S.W.2d 456, where a penal ordinance of the City of Dallas required the Railwáy Company operators to yield the right-of-way to pedestrians as they make left turns, we held it was the duty of the operator to avoid negligence by looking ahead of him to whom he must yield the right-of-way, instead of looking backward to people he had already safely passed.
Mr. Jackson, witness for appellee, testified that he saw Mrs. Farnsworth get off the street car and move approximately ten feet back west from the door of the car before the accident; at least, he knew that she was ten feet back west of the point where the front door, of the street car-was stopped after she was struck by the rear overhang of the car. Since the evidence does riot raise an issue as to discovered peril, and since the evidence shows as a matter of law that the appellee was guilty of contributory negligence, it follows that the judgment-of the trial court should, b.e reversed and here rendered for the appellant.
Furthermore, the jury verdict fixing ap-pellee’s damages at $12,518 is excessive. Mrs. Farnsworth, at time óf the accident, was 51 years of age; she was an experienced cateress; ■ worked for Interstate, Inc., in 1942, at Milwaukee, Wisconsin; moved to Dallas in 1944 and was employed by Sears-Roebuck Retail Store on South Lamar Street. She also trained other employees to manage restaurants. At the time of the accident in December 1946, she was being paid the sum of. $250 per month. She sustained and suffered injury characterized, only by what physicians term “sub-; jective .symptoms,” — headache, pains and nervous disorder. Only a slight bruise on her head. She went to Parkland Hospital where she remained five days, and : then home where she remained confined ‘until December 23; and, according to1 her testimony, she went back to work on January 2, 1947. X-ray pictures were made and spine punctured by physicians; neither revealed fracture or damage to the bone structure of her head or neck. She complained of severe headache, various difficulties, concerning vision, speaking, and emotional upset. In all, appellee lost 19 days from her work immediately after the accident. In the latter part of January she .went back to the hospital • for further X-rays; then stayed home for a time; and about February 15, went back to work for Sears Roebuck Company. Several physicians .stated that she had no organic trouble. In Márch, she was sent to Houston where she managed a restaurant and was' given additional responsibilities at a salary ‘of $400 per month;’ later brought back to Dallas; then sent to San Antonio for the opening of a restaurant in July or'August 1947. She-was again recalled to, Dallas and' placed in charge of Sears-Roebuck Company’s restaurant on Ross Avenue, and -at time of trial was earning $400 per month. In view of no evidence as to liability, and the weak and unsatisfactory evidence of injury — all subjective —so excessive, as to indicate passion and prejudice on the part of the jury, the judgment should not stand affirmed.
There are other, points: of error which are calculated to prejudice the jury: The appellee, over objection of appellant, was permitted to relate:. “A. When we got on the car (at Sears- Roebuck Store on South Lamar), we couldn’t get to a seat even before he started, he was in a great hurry. He stopped on Lamar and Young, and they scarcely got off before he started again. .The same was true on Lamar and Main.” Such is not res gastae of the occurrence. In the case of Feagins v. Texas, Machinery & Supply Co., Tex.Civ.App., 185 S.W. 961, 963, writ refused, opinion by. this court quoted with, approval the text- in 17 Cyc. 274, 276, paragraphs 1, 2: “That’ a fact- existed' or event occurred at a particular time cannot be’ shown by evidence that another fact existed or event occurred-at-another time unless the two facts or occurrences are connected in some special way, indicating: a relevancy beyond mere similarity in certain particulars.- Such relevancy is found where similarity. in--all essential particulars is shown to- exist.”
*990Then again, over appellant’s objection, on cross-examination of the street -car operator, appellee’s attorney questioned him ■ about some other accident: !
“Q. We will get back td that in a minute. Now, you said that you had not hurt anybody there at that spot before or since? A. That is right, sir.
“Q. Didn’t you on the same day there strike another man — an old man? A. No, sir, I did not, sir.
“Q. Didn’t that happen there that day? * * * A. Not to my knowledge, sir. * * *
“Q. What was your answer? -A. I said I didn’t strike another person there that day. ,
“Q. You know nothing about another person getting hit there? A. All I know, about another person getting hit there .was a newspaper story.”
Then again, recited facts in appellant’s bill of exception No. 2, approved by the trial court, as follows: “ * * * during said cross-examination Of defendant’s street car operator, plaintiff’s counsel was holding in his hand and was looking at from time to time a newspaper clipping, which-clipping was one column wide and approximately four to five inches long, and that during said time plaintiff’s counsel was sitting in a chair being not more- than four feet from the" front right hand corner of said jury box, and that plaintiff’s counsel, while holding said newspaper clipping, was sitting with his left side to the jury box and was holding the newspaper clipping within plain-view of the jury. The paper was not, however, ever held so that-.any of the jurors could read the "contents thereof or any part thereof. The only -testimony about -any newspaper story was made "by the witness Hanna' as shown by the statement of facts to be a voluntary statement of that witness and not in response to.any question asked. Plaintiff did not undertake to introduce- in evidence any newspaper story about her accident: or any other accident: Counsel for plaintiff - during the progress of the trial sat at the table at the place where counsel ordinarily sit and no objection was made to the court with respect to- • where - counsel sat pr about any paper or about any conduct of plaintiff’s counsel in holding the newspaper clipping in his hand.” What was the purpose of all this ?
■ Manifestly, the only purpose which the above related facts could serve was to prejudice the jury against appellant; and, from the verdict rendered in this case, resulted in the desired effect. Such conduct, alone, justifies a reversal ■ of this cause. No such prejudicial proceedings should be countenanced by any court.
In the light of the above, I respectfully dissent.