Kainer v. Walker

ON MOTION FOR REHEARING

In his motion for rehearing, respondent insists that much havoc will be wrought by this decision. He thinks it will be construed as holding that a general objection is always a sufficient predicate for a’ point of error attacking a special issue on the ground of generality or multifariousness. It was not our intention to paint with so broad a brush. We do say that’ when, in an ordinary negligence case such as this, the court prepares to submit an issue which merely inquires, in so many words, whether one of the parties failed to exercise ordinary care, the error may be' preserved at that stage of the proceeding by an objection that the issue constitutes''a'n’ improper global submission. !

Respondent also points out that Eichel v. New York Central R. Co., 2nd Cir., 319 F.2d 12, which was cited in our original opinion, has been reversed. The Supreme Court of the United States held that evidence of disability pension payments under the Railroad Retirement Act of 1937 should not be admitted in an action under the Federal Employers’ Liability Act for the purpose of showing that'tfie plaintiff had a motive for *618not continuing to work, and stated that the likelihood of misuse by the jury clearly outweighs the value of such evidence. Eichel v. New York Central Railroad Co., 375 U. S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307. This ■provides additional support for our conclusion that the trial court would have erred if • evidence of disability payments had been admitted in the present case.

The motion for rehearing is overruled.