On Motion For Rehearing.
In the motion for rehearing special emphasis is directed to the contention that is-sues 5, 6, and 7, relating to the issue of discovered peril, are too broad and general, and are framed so as to leave the jury to speculate and surmise as to the particular time the motorman saw plaintiff’s automobile, the contention being that these issues wholly ignore the vital “time element,” as discussed in the opinion of Judge Critz, of Section A of the Commission of Appeals in the case of Northern Texas Traction Co. v. Weed, 300 S. W. 41.
This objection is one of numerous others to be found in paragraph 9 of appellant’s exceptions to the court’s charge, which constitutes the basis of appellant’s twenty-second assignment of error and its twenty-fifth proposition based thereon. The assignment and proposition read as follows:
Twenty-second assignment: “Because the court erred in submitting to the jury special issues Nos. 5, 6 and 7, of the main charge, wherein the court undertook to submit to the jury the issue of discovered peril, for the reasons and in the manner shown in section 9 of defendant’s objections and exceptions to the court’s main charge.”
Twenty-fifth proposition: “The trial court erre’d in submitting special issue No. 5 to the jury, in that the same is too broad and general and is so framed and worded as to leave the jury to speculation and surmise as to the-particular time inquired about as to when the motorman saw the plaintiffs’ automobile and by reason thereof places too onerous a duty and burden upon the defendant.”
No special charge was requested looking to the correction of the alleged defect in special issues 5, 6, and 7, as submitted by the court, and it may be thus seen that the .objections to issues 5 and 6 as presented to the trial court are materially narrowed, and that the “time element,” as now pressed upon us, was not made prominent. A case quite similar to this is that of Gulf Refining Co. v. Youngblood (Tex. Civ. App.) 23 S.W.(2d) 522, 527. We quote the following from the opinion in that case as written by Associate Justice Buck:
“The court submitted the issue .to the jury as to whether Miss Youngblood, immediately prior to being struck by the truck, was in a perilous condition, and did the driver of the truck discover such perilous condition of Miss Youngblood immediately prior to striking her with his truck, and did said driver, after discovering such perilous condition ⅜ * * exercise ordinary care to use all the means at his hands (at his command) consistent with. his own safety and the safety of his truck to avoid striking plaintiff. The court also inquired of the jury: Was the failure on the part of the driver of the truck to use all the means at his hands (command), consistent with his own safety and that of his truck, to avoid striking plaintiff, negligence, and was such negligence, if any, the proximate cause of the injuries, if any, sustained by Miss Youngblood? The complaint is that each and all of said special issues are too vague, general, and indefinite, and do not inquire of the jury when, where, at what time, and at what place the plaintiff was in a position of peril, and are merely of an evidentiary nature and suggestive and upon the weight of the evidence in assuming that plaintiff was in a position of- peril which defendant’s driver could have discovered in time to have stopped his truck. Appellant cites Northern Texas Traction Co. v. Weed, 300 S. W. 41, by the Commission of Appeals, and approved by the Supreme Court, as authority for its contention of error in this case. We have read the cited ease and do not find any authority in it which would justify our sustaining this assignment. Therefore we overrule the tenth assignment as well as the ninth.”
In the Weed Case, supra, Judge Critz observed that: “We should not look at the court’s charge from the standpoint or experience of trained lawyers, but ‘we must look at the court’s charge as -practical, experience teaches that a jury, untrained in the law, would view it.’ ”
In, the light of this rule, we think it quite improbable that the jury was misled to the prejudice of appellant. The jury found that the motorman saw the approaching automobile, and this is not questioned. The evidence also authorizes the conclusion that he was standing facing the rapidly approaching automobile but a few yards distant, with no obstruction between them; that he cut off his power, but did not apply his brakes. If he was performing his regular duties in running his car, as the evidence indicates, and as we have the right to assume, it is difficult to see how the motorman could keep from seeing the approaching automobile under circumstances indicating that -it was not going to stop. If there could have been any doubt on the part of the jury about whether the motorman saw the perilous position of the minor in time to-*914have retarded the street car by applying his brakes sufficiently to have permitted the automobile to pass without a collision, there was and is no such doubt in our minds, for it appears in the statement of facts that the motorman who was operating the street car at the time was in attendance on the court at the time of the trial below, and that he was interviewed by appellant’s claim agent, and not called upon to testify. He, of all persons, knew best when he saw the perilous position of the parties, and it is not unreasonable to infer that, if by him appellant could have shown that he did not see the peril of the minor in time to apply his brakes, it would have called upon him to testify.
However, the foregoing discussion is in reality superfluous, for there is yet another answer to the contention under consideration which we think decisive.' In answer to special issues 1, 2, 3, and 4, the jury found that the motorman was guilty of negligence in a failure to keep a proper lookout and in operating his car at too great a rate of speed as it went out of the north end of the switch, and that the negligence in each case was the proximate cause of the minor’s injury. The jury found that the minor was not guilty of negligence, and, if the negligence of his mother is not imputable to him, as we held, and as we yet think, these findings support the judgment in the minor’s favor, regardless of the finding on the issue of discovered peril.
In Texas Jurisprudence, vol. 3, § 720, p. 1015, it is said: “Where a decision is based on two or more findings, and it is determined that one finding supports the judgment, there is no necessity to consider other- findings or matters as to the evidence which have no relation to and cannot affect this particular finding. Similarly, if the theory on which the trial court could have rendered the judgment is supported by the pleadings and the evidence, the issues involved upon another theory become immaterial.”'
In Templeton v. Northern Texas Traction Co., 217 S. W. 440, 442, writ refused, this court said: “It is well settled that, in cases where special issues are submitted to the jury, it is enough if they find upon those on which, regardless of what the finding may be on the others, the judgment must stand.” Citing cases.
See, also, Furst-Edwards & Co. v. St. Louis S. W. Ry. Co. (Tex. Civ. App.) 146 S. W. 1024; St. Louis S. W. Ry. Co. v. Inman (Tex. Civ. App.) 293 S. W. 650; Sears v. Sears, 45 Tex. 557.
We conclude that the objections to special issues 5, 6, and 7 should be overruled, and, other questions presented in the motion having been sufficiently disposed of, as we think, in our original opinion, the motion for rehearing will be overruled.