On Motion for Rehearing.
[1] This case was heretofore affirmed without reference to the merits, on the ground that appellant’s brief did not conform to the rules in that the assignments of error did not refer to that part of the motion for new trial wherein the error was complained of. This ruling has been challenged by counsel for appellant in their motion for rehearing, since which time Chief Justice Brown, in M., K. & T. Ry. Co. v. Beaseley, 155 S. W. 187, has construed the recent rule with reference to this question, holding that it was not necessary that objections to charges given and refused should be set up in the motion for a new trial.
Under the authority of that case, we recede from our former holding, and will now take up and discuss the questions presented by appellant in its brief.
[2, 3] By its first and second assignments appellant insists that the court erred in the ninth and tenth paragraphs of -its main charge to the jury, in this, that said paragraphs, in effect, instructed the jury that plaintiff’-s failure to obey the order of the foreman and leave the hand car would not be contributory negligence, unless his conduct in so failing and refusing was rash and reckless. These charges are not open to this objection; besides, as far as they went, they were unquestionably the law of the case. They were likewise in the exact language of defendant’s plea of contributory negligence; and, certainly, it cannot insist that the court erred in giving the charge in accordance with its own line of defense. Being correct as far as they went, if appellant desired an additional charge it should have requested it.
[4, 5] The court properly refused to give special charges Nos. 4, 5, and 6, forming the basis of its third, fourth, and fifth assignments of error, for the reason that they are upon the weight of evidence in that the jury ■are told that the issues raised by these charges constituted contributory negligence; whereas, the issue of contributory negligence vel non presented by them should have been submitted to the jury for a finding thereon. Where several special acts of negligence are relied upon for recovery, as in the present case, and the evidence is sufficient to warrant a finding upon any two or more of them, it is harmless error for the court to refuse an instruction directing a finding in favor of defendant on one alone, where there is a general verdict in behalf of plaintiff; for which reason the court- properly refused to give appellant’s special instruction No. 7.
[ 6] At the time of his injury, plaintiff had an accident policy in the Continental Casualty Company. Appellant offered to show a settlement by plaintiff with said company, indemnifying him for time lost by reason of the injuries inflicted upon him in this collision. Upon objection this evidence was excluded, for the reason that it clearly appears from the bill of exception that such settlement was made in compromise of plaintiff’s claim, and therefore could not be put in evidence against him over his objection.
Finding no error in the proceedings of the trial court, the motion for rehearing is overruled.
Motion overruled.