On Motion for Rehearing
CHADICK, Chief Justice.In the opinion handed down January 10, 1957, this case was reversed and remanded, Mr. Justice FANNING dissenting. On motion for rehearing the majority of the Court as it is now constituted has concluded that the case should be affirmed.
Suit was brought by W. A. Nichols, a roadmaster of the M-K-T Railroad Company of Texas, against the Red Arrow Freight Lines in a common law negligence action combined with a statutory action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., against his employer, the M-K-T. On answer by the *744jury to the special issues the trial court entered judgment denying Nichols a recovery against either.
Appellant’s three points of error are very concise. They are: (1) That the jury’s answers to special issues are in irreconcilable conflict; (2) Nichols was denied proper cross-examination of an expert witness; and (3) there is no evidence to support the jury findings of Nichols’ contributory negligence.
In considering the first point it must be kept in mind that this suit as filed actually joins two independent causes of action in which the law relating to duty and liability differ. To avoid confusion it should be emphasized that the Railroad sought no damages or relief against Red Arrow nor did Red Arrow seek damages against the Railroad because of the collision of the Railroad’s track motor car and the Motor Freight Line’s truck. The doctrine of “re-spondeat superior” had no application and no party to the suit so contends.
The conflict is said to arise in the jury answer to these two issues:
“Special Issue No. 8: Do you find from a preponderance of the evidence that the conduct of the Missouri-Kansas-Texas Railroad Company of Texas in not equipping the motor car in question with a signaling device suitable for warning a motorist approaching the crossing at the time and on the occasion in question was negligence as that term is defined below?”
Answer: “We do not.”
“Special Issue No. 13: Do you find from a preponderance of the evidence that the action of W. A. Nichols in operating the motor car in question at the time of and immediately before the collision in question, with the signaling device then on said car, was negligence as that term is herein defined to you ?”
Answer: “We do.”
Issue No. 8 'related to the Railroad’s negligent omission of duty it owed its employee Nichols, in failing to equip its motor car with a suitable signaling device for warning motorists approaching a crossing. It is emphasized that this is the only act of primary negligence Nichols charged against the Railroad, submitted by the court. The jury’s answer absolves the Railroad of the alleged negligent omissions.
Issue No. 13 related to W. A. Nichols’ alleged negligent act causing or contributing to cause his own injury in operating the motor car with such signaling device as was then on the car. This was one of Red Arrow’s defensive issues in which it defended against Nichols’ common law action by showing that Nichols’ negligence caused or contributed to cause his injury insofar as Red Arrow was concerned, and was found in favor of Red Arrow by the jury.
Since Nichols’ action against Red Arrow was founded on common law principles it is elementary that his contributory negligence, if found by the jury, barred a recovery against Red Arrow. As between Nichols and Red Arrow, the answer to Special Issue No. 8 has no materiality one way or another simply because that issue related only to Nichols’ action against MK-T and it naturally follows no recovery could be based upon it or barred by it as to Red Arrow.
And to further demonstrate, the same is true as between Nichols and the Railroad, the finding on Special Issue No. 13, a Red Arrow defensive issue, in the common law action, has no effect one way or another as to the Railroad. The act of negligence inquired about is not relied on by Nichols or Red Arrow for or in bar of a recovery against the Railroad, and it follows that it can neither be looked to in support nor in bar of a recovery by Nichols against the Railroad in the statutory action.
Until the contrary is shown, it must be presumed that the jury answered the special issues in the light of the pleadings *745of the parties, of the evidence before it and the court’s charge. The jury could understandably and logically in response to Special Issue No. 8 find that the Railroad Company breached no duty to Nichols in furnishing a motor car with a signaling device such as shown to be on the car here involved, or without a signaling device at all, in view of the Railroad’s rule that Nichols should give highway traffic the right of way and which adjures him to not “assume that others see the motor car or that they will stop or get out of the way.” And, at the same time, find that Nichols failed to act in the interest of his own safety and was negligent in operating the mot- or car with its limited signaling device across the railroad and highway intersection when it was not clear, after his employer had ordered him to stop on such occasions.
In the first instance, the Railroad had a safety rule to protect its employees, he was not to move over the crossing unless it was clear, regardless of its signaling device, and even if his motor car was prepared to and could warn highway vehicular traffic of its imminence, by way of the safety rule he was still under his employer’s orders to stop. In the second instance, without regard to employment, Nichols could clearly be, as the jury found he was, lacking in his duty to act in the interest of his own safety in operating a motor car across the highr way without being able to warn vehicular traffic.
It can not in reason be contended that an employee can not be guilty of negligence toward some third party without his employer being guilty of a breach of duty to the employee. For this Court to so hold would establish a liability heretofore unknown to the law. If so, it would lead to the absurdity that the employee under the Federal Employers’ Liability Act, could establish his claim against the employer simply by proving his own negligent act toward some outsider. Bear in mind there was no allegation or contention made in the trial court that the Railroad should have foreseen that Nichols would operate the motor car in the face of oncoming traffic. There is no inconsistency or conflict in the answers if the issues are clearly in mind.
The test to determine conflicting answers requiring a judgment to be set aside is stated by the Supreme Court in Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985, 991, in the following language :
“ * * * To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it. * * *
“To apply this test, the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.”
This test has been reaffirmed by that court in the late case of Luther Transfer & Storage Co. v. Walton, 296 S.W.2d 750.
Applying the criteria of the Little Rock case, since Special Issue No. 8 is not an element of Nichols’ cause of action against Red Arrow nor is it an element of Red Arrow’s defense against Nichols’ cause of action, the answer to it could not be a basis for a judgment for either Nichols or Red Arrow. Obviously, the same conclusion is *746reached by applying this test to Special Issue No. 13. That issue is not an element of Nichols’ case against the Railroad, and any answer to it could not be the basis for granting or barring a recovery by Nichols against the Railroad. Without prolonging the opinion with further demonstrations, the same conclusion is reached in applying this test to Red Arrow’s other favorably answered defensive issues.
Special Issue No. 23, relating to Nichols’ failure to keep a “proper lookout” was a common defensive issue pleaded by both the Railroad and Red Arrow. Disregarding Special Issue No. 8, and considering the remainder of the jury’s answers, the answer to this issue finding Nichols negligent is an absolute bar to recovery against Red Arrow in the common law suit, but because of the comparative negligence provisions of the Federal Employers’ Liability Act, it would only be a partial bar to recovery against the Railroad Company. Then, looking to the remainder of the issues, since no primary negligence was found against the Railroad the matter of comparative negligence becomes of no significance.
This finding of Nichols’ negligence is a matter which might be weighed against a possible breach of duty by the Railroad, if the jury had found the Railroad negligent in any respect, but the answer to this issue is not a finding nor equivalent to a finding that the Railroad did in fact breach a duty to Nichols. The effect of the whole verdict without considering Issue No. 8 is that no ground of primary negligence is found upon-which a judgment for Nichols may be based against the Railroad. Considered from this viewpoint, the only judgment to be entered is one relieving the Railroad of liability. Reversing the process and disregarding Special Issue No. 23, the absence of a finding of primary negligence against the Railroad renders the only judgment possible to be that the defendant take nothing. Red Arrow, though convicted of acts of primary negligence is required to be discharged because of Nichols’ contributory negligence.
The Issues Nos. 8, 13 and 23 are used here as illustrations. The same reasoning applied to them is valid if applied to alleged conflicts between the answer to Special Issue No. 8 and the answers to other Red Arrow, or, if any, common defensive issues. There being no conflict, appellant’s point is overruled.
Passing to appellant’s next point: When the Railroad’s Engineer of Maintenance of Way was testifying on direct examination, he expressed an opinion that the type of motor car here involved was standard equipment on the M-K-T and of the latest design and best adapted to the purpose for which it was used. On cross-examination it was further developed that he had previously been Superintendent of Safety for the entire M-K-T System. Counsel for the appellant elicited from him that he had in his office a “1948 Railway Engineering & Maintenance Cyclopedia” and that he used it for reference and thought it was authoritative, and in a following question, that he used it simply as a catalog to locate various types of devices he might be interested in. In almost the same breath he stated that he recognized it as an authority and that he did not. When appellant’s counsel sought to cross-examine him as to the contents of the Cyclopedia, the court excluded the cross-examination.
Isolated answers would support the view that he considered it an authority and referred to it while another answer standing alone would support the view that he simply used it as a catalog. The trial judge saw the witness and heard all of his testimony, and it may be implied from his ruling that he understood the witness to be saying, and found as a fact, that the witness only used the Cyclopedia as a cátalog. Examination of the publication shows it to be both a treatise on many phases of maintenance and safety and also a catalog of items furnished railroads by numerous manufacturers.
Admission of expert testimony is addressed to the sound discretion of the *747trial judge and great weight must be given the judge’s findings of fact regarding the proof of antecedent facts forming the grounds for admission of such testimony, and unless his construction of the evidence is clearly wrong, no abuse of discretion is shown. Culver v. State, Tex.Civ.App., 85 S.W.2d 997, wr. ref. There being two possible constructions, the implied construction made by the trial judge is clearly permissible, and no limitations on proper cross-examination of an expert witness is shown. Additionally, the judge might properly have excluded the cross-examination because he was not satisfied the examination related to the field in which the witness testified. This point is overruled.
Appellant’s final contention that there is no evidence or insufficient evidence to support any or all of the jury’s findings on eight specific acts of contributory negligence, charged against Nichols by Red Arrow and found by the jury, must also be overruled.
The statement of facts consists of three volumes and 800 pages of testimony together with another volume of exhibits consisting largely of photographs. Two weeks were consumed in the trial. It followed that an extensive recitation of the testimony is not feasible. Briefly, there is testimony by Nichols himself that he considered the crossing a hazardous one and knew of the importance of being prepared to stop and that railroad safety rules required him to yield the right of way to highway traffic at the crossing and that gravel trucks continually crossed the track at the place of the collision and that in the some five hundred times he had made the crossing he regularly stopped or slowed down for gravel trucks. It is in evidence that Nichols knew the railroad tracks were substantially hidden from a motorist on the highway by an embankment and weeds. Photographs were in evidence showing the tracks of the truck involved and the position at which the truck and the motor car came to rest after the collision and showing their damaged condition. Also there is evidence that the Red Arrow truck was on the track when the motor car struck it and was being driven in a straight line and at a reasonable rate of speed together with evidence that the truck was struck with terrific force and the brake lever on the Nichols motor car was in neutral after the accident in such position that the brakes were not being applied. The brakes were so constructed that if once applied they would lock until released. The railroad safety rules respecting operation of motor cars, etc., also were before the jury. Such testimony and inferences therefrom raises the issues of Nichols’ omissions of duty in failure (a) to keep proper lookout; (b) to keep proper control; (c) to make proper application of brakes; (d) to prepare to stop; (e) in violation of railroad safety rules; it has probative force, and if believed by the jury, adequately supports the jury’s findings. Houston E. & W. T. Railroad Co. v. Boone, 105 Tex. 188, 146 S.W. 533; Bock v. Fleman Dry Goods Co., Tex.Com.App., 212 S.W. 635; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892.
The same may be said respecting the defensive issues concerned with (a) Nichols’ failure to yield the right of way, (b) failure to bring his motor car to a stop, and (c) his act in moving his motor car a greater distance into the intersection than was proper. In addition to that already listed, there is evidence that the truck driver at a point less than 35 feet from the crossing could see no motor car in view, and had the motor ca.r been in or near the crossing the truck driver would have seen it, that the truck was on the track when the motor car hit it and that the motor car struck the truck from the side. Further, there is testimony that the force of the impact came from the motor car and that only the left side of the truck was damaged while the front end of the motor car was damaged and that the imprint of the motor car was indelibly stamped on the side of the truck and there are pictures of the points of damage to the two vehicles. This *748evidence together with that already mentioned raises the issues indicated, and supports the jury’s findings.
A finding of contributory negligence by Nichols as to any of these issues would compel a judgment in favor of Red Arrow. Voland v. Connor, Tex.Civ.App., 258 S.W.2d 423; Aranda v. Texas-New Orleans R. R. Co., Tex.Civ.App., 140 S.W.2d 236.
Finding no error in the record and that the judgment should be affirmed, the motions for rehearing filed by M-K-T Railroad Company of Texas, and Red Arrow Freight Lines are accordingly granted, the opinion of January 10, 1957, is superseded and the judgment of the trial court is affirmed.
FANNING, J., concurs. DAVIS, J., dissents.