On Motion for Rehearing. This is a suit for the value of a mare, instituted by appellee against appellant, in which it was alleged that the mare "was killed or died from injuries sustained on or about the 9th day of February, 1912, by being negligently run into, scared, or caused to fall by an automobile being operated by a servant of said H. C. Carter, on Crockett street, in the city of San Antonio, Bexar county, Tex." The cause originated in the justice's court and was appealed to the county court. In each court judgment was rendered for $150, the amount claimed by appellee.
The facts in this case are quite unsatisfactory. Appellee testified that he was going east in a buggy on Crockett street, and then that he was going west, and that he saw a big gray automobile coming along the street behind him about the distance of 25 yards, and he seems to have become demoralized and got halfway out of the buggy before the automobile passed him on his left, as it should have done; that while he was halfway out of the buggy, and before the automobile reached him, he hallooed to the negro chauffeur, and the mare fell at that time. The hallooing and falling of the mare must have occurred before the automobile reached the spot on which the buggy was standing. He testified: "When I saw it approaching, I hollered at the negro and began to get out of the buggy to keep from getting hurt." He admitted that the mare was not struck by the automobile, and that he threw her down by jerking the reins. He testified: "He missed the buggy about the horse's shoulder. I throwed the horse down or he would have hit the horse. * * * I jerked the right-hand rein and fell, pulling the horse over, and he fell. I throwed her on one side. Some of her feet were on the outside and some under her. Part of her was against the curb. That was the back part. * * * The wheels of the buggy projected out on either side in the street farther than the horse." There was no evidence that the automobile was moving faster than the city ordinances permitted. The evidence of Fleming indicates that the driver intended passing appellee on his right, but evidently he turned his horse very suddenly, and the automobile was thrown over to the left to avoid a collision. He swore that he did not think that the automobile hit the horse. The negro driver swore that he knew nothing of the matters about which appellee and his witness Fleming testified.
The law is well established that if a man is placed in a position where he must adopt a perilous alternative, or even where he is placed in a situation of apparent sudden or imminent danger by the negligent acts of another, the latter is responsible for the consequences. Thomp. Neg. §§ 195, 255.; Shear. Red. Neg. § 89; Wharton, Neg. §§ 94, 95. On the other hand, if the act of the plaintiff resulted from rash apprehension of danger which has no existence or from inordinate and unreasonable fear, he is not entitled to recover. There must be some reasonable ground for the belief that some sort of action must be taken in order to protect himself to justify a person in taking such action. While a man is not held to the exercise of such prudence, when the negligence of another had given rise to a belief of imminent danger, as would be exercised by a man of ordinary prudence, still a man cannot recover for damages inflicted by himself through wildly imagining that he was in danger. In order to make a case arising from action on the part of the plaintiff caused by the negligent act of the defendant, it must be shown that there was misconduct upon the part of the defendant reasonably calculated to cause the plaintiff to do the thing that resulted in his injury. There can be no recovery unless there be negligence on the part of the defendant, placing the plaintiff in a situation where he must adopt a perilous alternative or where the negligence of the defendant creates such terror as to cause the plaintiff to act wildly or negligently. The facts in this case do not reasonably show such misconduct upon the part of appellant as would justify appellee in jerking his mare down on the street in a wild attempt to evade an imaginary danger.
The evidence tends to show a case of a man unreasonably frightened at an approaching automobile, 75 feet behind him, losing his mental equilibrium, and jerking his animal down on the street, when there was no ground for fear that there would be a collision. If, however, this be a case that should have been submitted to a jury, still, the facts being so meager, every illegal fact allowed to go before the jury will be scrutinized with exceeding strictness.
When appellee was testifying, he was asked if he had ever had a talk with appellant about the accident, and he answered that he had, and that appellant had told him the number of his car. He was then asked if he made any other statement, and he answered: "He said he had insurance on the car." That Illegal testimony came from the appellee, who must have known that it was very improper testimony. In consulting with his attorney, he must have told him about the conversation with appellant, or he would not have been interrogated about it, and we must presume that his attorney informed him that such testimony was not permissible. He must have appreciated the effect it would have upon a jury trying a case between two citizens, when it was made known, that a corporation, and not the defendant, would have to discharge the judgment for damages. He must have known that the wavering *Page 487 balances would go down against the "soulless corporation." No amount of admonition to the jury could remove the effects of the testimony, because it could not remove the knowledge that the suit was not one between citizens, but between a citizen and a corporation.
Appellee cannot escape the effect of the testimony given by him on the ground of his ignorance of the baneful effect it would probably have upon the jury. He must be given credit for common sense and at least a modicum of knowledge of human nature. Judgments have been reversed where attorneys have injected such matters into a trial, and we cannot see that the party has any more right to bring in such matters than would the attorneys. In case of the latter, he might with some degree of reason claim that he had not authorized it; but he has nothing to justify, excuse, or palliate his deliberate conduct in bringing such testimony before the jury. In the statement of facts it is indicated that he was anxious to tell about the insurance company, for after telling about appellant giving him the number of his automobile, he said, "He made another statement about the car." When asked what it was, he replied, "He said he had insurance on the car." The circumstances indicate that he knew that such statement would have a deadly effect on the interests of appellant and therefore testified to it.
In the bill of exceptions it is recited that the attorney, after appellee had testified to what was said to him by appellant about insurance, stated: "We don't care anything about any insurance on the car. All we want to know is about what Mr. Carter said as to the number and ownership of the car." If that was all that was desired to be elicited from appellee the question as to whether any other statement was made by appellant was totally unnecessary, because he had already testified as to what appellant said about the number and ownership of the car.
The evidence as to the identity of the automobile calls for strengthening; there being nothing to sustain it except the testimony of Fleming. He identified the driver, but said: "I don't know that it was the same car. There are lots of gray cars in town, and I don't know the make of either. I don't know whether he was driving the same car the day of the accident as the day I saw him at Joske's." It was, however, sufficient to be considered by a jury.
There was no error in refusing the special charge. If, through the negligence of appellant, appellee was placed in a position where he had to adopt a perilous alternative to protect himself, or if by the negligence of appellant appellee was placed in a situation where in the terror of an emergency for which he was not responsible he acted wildly or negligently, appellant would be liable; but if there was no negligence upon the part of appellant appellee could not recover, no matter how frightened he may have been. Persons driving automobiles on the streets cannot be held liable for injuries resulting from the wild acts of timid persons, superinduced by unreasonable fear. There must be negligence on the part of the defendant to justify action on the part of the plaintiff. There must be a real or apparent peril. Railway v. Rogers, 91 Tex. 52,40 S.W. 956.
There is no authority for holding that it was the duty of appellant when the unlawful evidence was brought into the case by appellee to ask that the cause be withdrawn from the jury and continued. Such a ruling would preclude a hearing in this court on any error of the trial court, unless there was a formal demand for a withdrawal of the cause from the jury and an application for a continuance or postponement. There are some matters that may arise that would call for such action upon the part of the complaining party, such as discovering the disqualification of a juror during the trial, or when a party is surprised by the testimony of his witness; but such rule has never been applied to the admission of illegal evidence. Appellant did all that was required of him when he objected to the evidence and reserved a bill of exceptions to the admission of the testimony.
Appellant was in no manner responsible for the admission of the illegal testimony. He could not have known what appellee intended to state when he told him not to state what any one but appellant said. The responsibility for the injection of the damaging testimony rests upon appellee. He voluntarily gave the testimony and is charged with a knowledge of its illegal and damaging character.
The motion for rehearing is granted, and the judgment is reversed and the cause remanded.