I dissent from the opinion of the majority in granting the motion for rehearing and affirming the judgment of the trial court. Since the original opinion was handed’down, the membership of the Court has ■changed, and we now have two judges reversing this case and two affirming.
A full discussion of the facts in the case was not set out in the original opinion of this Court because such discussion was not deemed necessary. In view of the last action taken, I feel it my duty to discuss the facts more fully.
First, I quote from the original brief of appellee Katy, an excerpt from Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, 346, as follows:
“We have here a complicated, mul-tipartied suit with complex relations. The trial court simplified the suit by aligning the parties, reducing the issues, and eliminating the traps for the jury. A trial judge often does the best he can with an imponderable situation. Perfection in submitting non-conflicting, unconditional, multi-parties issues leads us to the brink of some future case which will be impossible to submit except by a general charge.”
We have just such a case here. This is the most confusing record that I have had occasion to examine. We have here two distinct lawsuits growing out of a single accident. Appellant alleges one cause of action based upon one state of facts against appellee Katy under the Federal Employers’ Liability Act, and Katy denied the state of facts as well as liability under such Federal Employers’ Liability Act, and pleads certain acts of negligence on the part of appellant for reduction of damages under the doctrine of comparative negligence.
Appellant alleges another and distinct state of facts in a cause of action, against Red Arrow Freight Lines under the common law, and Red Arrow defends under allegations of affirmative defenses different from those of appellee Katy.
One of the special exceptions referred to in our original opinion was by appellee Katy on the ground that there was a mis-joinder of parties and causes of action. In fairness to all parties, that exception should have been sustained. Where the parties and causes of action are different, and different rules of law are applicable to each party, the parties nor causes should be joined. 3 McDonald Civil Practice, 915, Note 66, and authorities cited therein.
*749The trial judge recognized the conflicts of facts, interests, the law applicable thereto, and made mention of same at several stages in the trial in the course of his rulings.
A summary of the evidence, as I see it, is as follows:
As to appellant Nichols: He was past 60 years of age at the time of the collision from which this lawsuit arose. He was a Roadmaster for Katy and operated a small motor car with a maximum speed capacity of 25 miles per hour. He sustained severe and permanent injuries in the collision and was unconscious for some 30 or 40 days. He suffered severe injury to the brain which caused retrograde amnesia and was unable to remember anything at all about the accident. The injury to the brain also caused him to develop mellitus diabetes by the time he had regained consciousness. He had been railroading since 1908 and had been a Roadmaster for many years. The testimony shows, without objection, that he always operated the motor car in question at a rate of speed of six to eight miles per hour, and abided by all the rules and regulations of the Railroad in relation to intersectional crossings. He was never involved in any kind of accident with the motor car in all his years of operation. At the time of the accident he was earning in excess of $5,000 per year, and it is not seriously contended that he is not now totally and permanently disabled from following any kind of gainful employment. As a result of the injury to his brain, he is unable to maintain his balance and fell once since the accident and broke his hip.
As to appellee Katy: Appellant went out on his job as Roadmaster on the morning of November 16, 1951, in a little motor car. At a certain point on his route, about 7:55 in the morning, he made his last stop, as shown by the record in this case, prior to the collision in question. From this point he traveled alone to the point of the collision which occurred approximately at 8:20 A.M., three and one-half miles from the last stop, without the remotest indication of any other stop or delay, which would indicate appellant had traveled an average speed of six to eight miles per hour from the point of last stop to the point of collision. This is a strong circumstance to support the testimony of appellant that he usually operated such motor car at six to eight miles per hour. There is not one scintilla of evidence in this record that appellant ever operated his motor car at a faster rate of speed. And, as pointed out in the opinion of the majority, the little motor car was found in neutral when it came to its resting place immediately after the collision and the brake was not set. The only reasonable inference that could be drawn from this state of facts is that the little motor car had come to a stop and was sideswiped by the truck. I will point out here that the first damage shown to the truck, as revealed by the exhibits in evidence, shows that the first contact between the truck and the motor car was immediately behind the left headlight on the truck and extended back to the back edge of the door. From viewing the photographs, it is clearly evident that the farther toward the rear of the truck the damage was done, the deeper the dent. With the truck traveling at an admitted rate of speed of 25 to 30 miles per hour at the time of the impact, loaded with 3,000 pounds of cargo, fixing to make a sharp right-hand turn into a narrow lane only 30 feet distant from the point of impact, it can only be inferred that the truck was making a swing or swerve to the left to negotiate the curve. As a matter of common knowledge, a truck could not negotiate a right-angled curve at 25 to 30 miles per hour into a narrow lane.
As pointed out in the original opinion, the collision occurred at a railroad-public road intersection. The truck driver was on his way to a gravel pit, and to reach the same the truck driver had to turn off at a sharp right-hand curve about 30 feet beyond where he crossed the railroad. It is the contention of appellant that the truck swerved to the left to negotiate the curve *750at 25 or 30 miles per hour and in so doing “side-swiped” the motor car operated by-appellant and hurled or dragged the motor car some' 18 or 20 feet off the railroad and caused the resulting injuries to appellant. Although one witness testified that the motor car was about five feet from the nearest rail of the railroad and on the left hand side of the railroad with reference to the direction it was going and on the left shoulder of the road with reference to the direction the truck was traveling, I think the evidence is conclusive that the motor car was some 18 or 20 feet from the railroad and on the left hand side of the public road with reference to the direction the truck was traveling, because the truck driver and one witness for the Katy so testified and the exhibits show the motor car near a “cross-buck” sign which is conceded to be 20 feet from the nearest rail from the railroad. The only way the motor car could have gotten to its resting place was by being knocked there by the truck. As is hereinafter pointed out, the maximum rate of speed which the motor car was traveling, as shown by circumstantial evidence would not be more than eight miles per hour, and it is unreasonable to believe that such rate of speed would have caused the motor car to have bounced backward for a distance greater than half the width of the main traveled portion of the public road, which is shown to be some 15 or 16 feet wide, and land either five or 20 feet from the railroad.
The Katy pleaded a violation of some three or four rules of the Railroad by appellant. The jury convicted appellant of 12 different acts of alleged negligence as follows: (1) Operating the motor car onto the crossing when he considered it to he equipped with an unsafe signaling device; (2) operating the motor car at the time and on the occasion in question with the signaling device then on said car; (3) that he failed to yield the right of way; (4) that he failed to stop before entering the crossing; (5) failure to apply his brakes; (6) failure to keep a proper lookout; (7) failure to give a warning as would have been given by a person of ordinary prudence in the exercise of ordinary care; (8) failure to keep the motor car under control; (9) driving the motor car into the intersection for a greater distance than a person of ordinary prudence in the exercise of ordinary care; (10) failure to observe railroad Rule 95 which reads in part as follows:
“Run slowly over switches, turnouts, railroad crossings, highway crossings and around curves; * * * ”
(11) failure to operate his motor car so as to be prepared to stop should any person or vehicle move onto the track; (12) failure to comply with the provision of Rule 97 reading as follows:
“Approach highway crossings, persons on or near the track cars on adjoining track, buildings or other places where view is obstructed, prepare to stop, should any persons or vehicles move onto the track. Do not assume that others see the motor car or that they will stop or get out of the way.”
There is absolutely no evidence at all of a single act or thing the appellant did or did not do as he approached the crossing, such as whether he stopped, kept a proper lookout, failed to yield the right of way, etc. I challenge the majority to quote any such evidence from the record.
The trial court excluded part of Rule 105, which reads as follows:
“Brakes should be applied gradually, .except in cases of emergency, when warning should first be given.”
This rule was specifically promulgated by appellee Katy to govern operation of motor cars such as was in use by appellant. It was excluded because a witness for Katy testified that the rule did not apply to intersections. There was nothing offered to support such testimony, except the self-serving construction placed thereon by the witness. I think the rule should have been *751admitted. When the motor car in question was delivered to appellant for use, Katy also delivered to him a magazine or booklet furnished by the manufacturer of the motor car which recommended certain signaling devices for use on such cars. Appellant attempted to offer the magazine or booklet in evidence, but it was excluded on objection of Katy because appellant had not proved that such was authority in support of the purpose for which it was issued. This magazine or booklet having been furnished to the employee by Katy, I think it was admissible and subject only to such explanation as could be made by Katy.
In this connection, I want to briefly discuss again the question of the admissibility of excerpts from the Railway Engineering & Maintenance Cyclopedia as raised by appellant in his second point of error. This cyclopedia was furnished to appella/nt by 'Katy; although, appellant was required to pay for it, it was unquestionably supposed to serve some purpose; therefore, the excerpts from this cyclopedia that were offered upon trial of the case were admissible. The excerpts offered from page 20 of the cyclopedia are as follows:
“Safety Appliances For Motor Cars”
“It must be recognized that the operation of motor cars involves certain hazards most of which can be controlled if the cars are operated safely and equipped with the necessary safety devices. * * * All motor cars should be equipped with a gong, bell, horn or other suitable warning device." (Emphasis added.)
The excerpts offered from pages 28 and 29 of the cyclopedia were as follows:
"Safety Appliances’’
“Among the various elements of design which are conspicuous in today’s track motor cars are those appliances which have been developed essentially m the interest of safety. * * ⅜ Experience has shown that other appliances such as * * * warning devices * * * all add to the safety of motor car operation.’’ (Emphasis added.)
It is a matter of common knowledge that it is the duty of a careful and prudent operator of a motor vehicle in crossing a railroad to listen for a warning signal. The comment of the trial judge commenting on the need of a signaling device in such instances as we have here (found beginning on page 548, Vol. Ill, Statement of Facts), is timely illustrative of such matters of common knowledge. I quote:
“The Court: Well, it is just an absurdity then. Mr. Nichols entered into it. I am not applying the facts of this particular case, but here comes a man through those curves at 90 miles an hour. There is no question that Mr. Nichols looked down there and there wouldn’t be any question that he looked as far as he could, but he had slowed down, we will say, to be sure he was going to yield the right-of-way, to two miles an hour. Before he can get through there at that rate of speed, the other man, going 45 times as fast as he is, could come up such a distance that he couldn’t even discover — now, would (sic — could?) he have yielded?” (Interpolation mine)
Then, in the case of St. Louis B. & M. Ry. Co. v. Watkins, Tex.Civ.App., 245 S.W. 794, 797, wr. dism., the court in speaking of the necessity of a signaling device on a motor car such as involved in this case, said:
“It may be true as contended by appellant, that the provisions of Rev.St. 1911, art. 6564 [Now Art. 6371], Vernon’s Ann.Civ.St., do not apply to a car propelled by a motor; still such car would not be licensed to run over railroad tracks without being equipped with apparatus for giving adequate signals of its approach to public crossings, and was in effect and substance *752what was .alleged in the petition, and the court very properly admitted testimony tending to show the inadequacy of the signals given by the motorcar, and very properly submitted the issue as to whether the motorcar was equipped with a whistle reasonably calculated to give reasonable notice to the public of its approach.”
I am unable to see anything but a conflict in the findings of the jury between Special Issues Nos. 8, 13 and 26 as to the Katy. Despite what the majority says, the Katy pleaded as a special defense that Nichols was guilty of negligence in operating the motor car with the signaling device that was upon it and alleged that such operation was a violation of Company Rule 84, even though Nichols had requested and been refused a suitable signaling device. Rule 84 prohibits the use of such a motor car when it is unsafe. The jury found it was unsafe because it did not have upon it a suitable signaling device, and that finding is in favor of Katy. Katy knew its unsafe condition just the same as Nichols did. The jury finds Katy not guilty of negligence in failing to furnish such suitable signaling device, and convicts Nichols of negligence for operating the motor car without such device. Then Katy would like for the employee, Nichols, to be governed by its interpretation of all the Rules, more especially Rule 10S which provides in part as follows: “ * * * Brakes should be applied gradually except in cases of emergency, when warning should first be given.” (Emphasis supplied.) This will be discussed further later on in this opinion.
As to Red Arrow: What I have said about the jury’s findings in relation to contributory negligence, in relation to the Katy, is applicable here.
As above stated, the maximum speed the motor car was capable of making was 25 miles per hour. The record shows it is 50 to 75 feet from the embankment beside the railroad track to the intersection of the highway where the collision occurred. From what has been hereinabove stated relative to the speed of the motor car being operated by appellant, the highest rate of speed which could be assumed from the circumstantial evidence, would be eight miles per hour, but more definitely six miles per hour. The truck driver admits he was driving about 25 to 30 miles per hour when he crossed the railroad track. The truck driver says he did not see or hear appellant, or know he was anywhere about until the motor car and the truck collided and contends that he was on his proper right-hand side of the road. He said he looked for a train when he was within about 35 feet of the tracks but did not see anything, then looked and proceeded straight ahead. He did not see the motor car until after the collision and did not hear anything at all. This presents an impossibility. If the motor car was not in sight when the truck was within 35 feet of the railroad track, the motor car would have to be traveling at a wdninvum rate of speed of 120 miles per hour to have reached the intersection in time to have struck the truck where it did, which rate of speed for the motor car was admittedly impossible.
It, Red Arrow, offered into evidence its Exhibit 16 to show the position of the truck and the motor car after the collision, as well as alleged skid marks of the rear dual wheels of the truck across the railroad track. The exhibit clearly indicates that the rear wheels of the truck were skidding when they reached the first rail of the railroad from the side from which the truck was approaching. If the skid marks shown in the exhibit are the skid marks of the truck of Red Arrow, made at the time and on the occasion in question, then the testimony of the driver cannot be true that he did not see or know of the presence of the motor car until the vehicles collided. At the time of the collision, other exhibits indicate that the front wheels of the truck were at or about the farthest rail of the railroad from the side from which the truck *753was approaching. This being true, and the truck traveling 30 miles per hour, which would he 44 feet per second, the driver of the truck would not have had time for his mental reflexes to act, then put his foot on the brakes and start his rear wheels sliding in less than a second. The truck being a “bob-tail” or short wheel-base truck, 22 feet in length, the rear wheels of the truck would have been at least 25 or 30 feet beyond the railroad track before he could have sufficiently applied his brake to have started the wheels skidding.
Then, it is a pretty well-settled rule of law that a person who enters an intersection first has the right of way. Muse v. McWilliams, Tex.Civ.App., 295 S.W.2d 680, and authorities cited therein. The evidence shows that the main portion of the traveled road at the point was some 15 or 16 feet in width. The evidence does not show exactly where the vehicles collided with reference to the center of the main traveled part of the road. But, assuming that the truck was on its proper right-hand side of the road and the motor car was traveling eight miles per hour, 11¾5 feet per second, and the truck was traveling 25 or 30 miles, 36⅜ to 44 feet per second, the motor car unquestionably entered the intersection first, because it would have had to cross over the left-hand side of the traveled portion of the highway with reference to the way the truck was going before it entered the right-hand lane. If the truck had gotten there first, it would have been several feet across the railroad before the motor car reached the right-hand side of the main traveled road.
To reach the conclusion reached by the jury and the majority of this Court in the last opinion in this case, all of the facts found by the jury and the majority are presumed, because there is not one word of testimony that will justify such conclusion, not even circumstantial evidence. Note the absence of quoted testimony. In other words, to reach this conclusion the jury and the majority must presume the first fact and then presume all the other facts upon the first presumption which is contrary to the well-established law of this State. 17 Tex. Jur., 247, Sec. 57, and authorities collated thereunder, including Ten Year Supplement.
A careful study of the record in this case, and this dissenting opinion will not justify the statement of the majority that:
“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.”
Nothing can be more absurd than to say there is any evidence in this record to support the verdict of the jury of any act of negligence by appellant, much less a dozen such acts.
Under the point of error as raised by appellant on the issue of no evidence and insufficiency of the evidence, it is our duty to examine the evidence as a whole and if error has been committed by the trial court or the jury, or both, to correct the same. Ex parte King’s Estate, 150 Tex. 662, 244 S.W.2d 660.
I believe that every case should rest upon its own bottom, be decided on its own individual merits from the standpoint of law and justice; recognizing the fact that jurors and trial judges, like appellate judges, are human and capable of making *754mistakes. We, here, have more time to review the facts and the law than do jurors and trial judges, which is the very purpose of the'-office. When this purpose is applied, the verdict of the jury and judgment of the trial court cannot be sustained on either a factual basis or from a simple mathematical calculation, as hereinabove demonstrated.
I am convinced that the knowledge of the law, as well as the wisdom of counsel for Katy was well founded when they insisted on a severance of the causes and that if a severance had been ordered, we would not have the confusing record that we have before us. Neither would there have been a probability of injustice being done either party by such severance. I can readily see where a jury verdict in favor of plaintiff could result in an injustice to either of the defendants.
I would still reverse and remand the cause.