The Court of Civil Appeals made no finding of facts in this case, but referred to the case of Texas Pacific Ry. Co. v. Phillips, 37 S.W. Rep., 620, for the facts of the case, and we make the following statement of the facts as shown in the case referred to as being that which is applicable to the points presented in the application for writ of error:
On January 20, 1894, Asbury Phillips, a negro boy about fourteen years of age, was knocked off the track of the Texas Pacific Railroad by one of its engines in the town of Detroit in Red River County. The boy was walking on the track at a point about 150 yards west of the signal board and about one half mile east of the depot. He was going westwardly and the train which struck him was going in same direction, therefore came up behind him. The accident occurred about eleven o'clock in the day time. At a point about three or four hundred yards east of where the boy was struck there is a curve in the track, but from such point to the depot in Detroit the track was practically straight. Two public roads cross the railroad track, one at a distance of about 300 yards and the other about 250 yards west of such signal board. No signal, either by ringing the bell or blowing the whistle, was given by the persons in charge of the engine. It was customary and usual for parties in charge of engines to give statutory signals at these crossings. The place where the boy was injured was a thickly settled portion of Detroit. There were a number of houses on either side of the track, *Page 280 and persons in that neighborhood and others were in the daily habit of passing over the said track to and from Detroit. The track was used by footmen as a pathway or street to go from their homes to the town and return, which use of the track was well known to the defendant Railway Company, its servants and agents. The engine was at the time being run at a high rate of speed. The boy testified that at the time he got upon the track he looked in both directions for an approaching train and saw none; that he did not hear the engine as it approached him and knew nothing about being struck by it. The engineer testified that he did not see the boy at all and did not know that anybody had been injured until the next day, when inquiry was made of him by the officers of the Railroad Company with regard to the matter. The engineer could have seen the boy on the track for about 300 yards before the engine reached him. The engineer knew that the track at this point was commonly used by the people in that neighborhood as a footway in going to and returning from the town.
This suit was instituted by Robert Phillips, the father of the injured boy, to recover damages occasioned to him, the father, by the injuries to his son, and he recovered judgment against the Railroad Company, which was affirmed by the Court of Civil Appeals.
Hiram Hartley, who was the engineer on the engine that knocked the boy off the track, was introduced as a witness by the defendant and testified that he did not see the boy before he was struck and did not know that any one had been injured until the next day, when inquiry was made of him about it. Upon cross-examination, the plaintiff's attorney asked Hartley "if he saw any person on the north side of the track at or near the crossing." The point inquired about was some little distance west of the place where the injury occurred. To the question, the witness answered — that he might have seen a man there but did not think he took notice of anyone. Plaintiff's counsel then asked the witness if he did not see a man shake his fist at him and point back along the track, and if he, witness, did not then stick his head out of the window and look back to see what was done. The witness answered — "there might have been dozens of men point at the crossing and my attention would not be attracted by them. I might have seen them but do not think that I took notice of anybody there." After the defendant had closed its testimony and after the witness Hartley had testified as before stated the plaintiff placed on the stand W.P. Merrill, who testified, in substance, that when the engine which knocked the boy off the track passed him, the witness, he motioned to the engineer as it passed and when it was right opposite to the witness, and that the engineer looked back, and when the witness motioned to him and pointed up the road he, the witness, could see Mr. Lindsey and some negroes; that he, the witness, saw by the track some negro women on the north side of the track who were going towards the injured boy. The Railroad Company by its counsel objected to the introduction of the testimony of Merrill, "because such testimony is immaterial and irrelevant and because the witness *Page 281 Hartley could not be contradicted or impeached by the witness Merrill as to such matters which were immaterial to any issue in the case." The objections were overruled and a bill of exceptions properly taken.
If the evidence proved the fact that the engineer, upon having his attention called to it, looked back to the place where the boy lay after he was injured, that fact did not tend to prove any issue involved in the case. The evidence made an issue before the jury which was not involved in the pleading of the parties, but which was made the basis of an attack upon the credibility of the witness Hartley by first examining him with regard to it and then introducing evidence to contradict his statements made with reference thereto. It is elementary, that a witness cannot be impeached by contradicting him upon an immaterial matter, and we know of no case in which the immateriality of the matter about which the impeaching testimony in introduced was more apparent than in this.
Hartley was an important witness for the defendant and whatever tended to destroy his credit before the jury, if improperly admitted in evidence, must necessarily constitute material error. The importance of this testimony is emphasized by the fact that the Court of Civil Appeals holds that the evidence of Merrill contradicting the engineer was sufficient to justify a jury in wholly discarding the evidence of the witness Hartley. The jury may have taken the same view of it. The judgment of the District Court must be reversed and the cause remanded on account of the error committed in admitting the evidence of Merrill.
The plaintiff in error presents a number of grounds in the application for the writ of error, but we do not find in them anything that we think requires discussion by this court. It is objected that the trial court, in the fourth paragraph of the charge, erred in prescribing as a standard by which to judge of the care to be exercised by the injured boy that amount of care which would be exercised by a reasonably prudent person of the same age. In view of another trial, we invite the attention of the trial court to the case of M., K. T. Ry. Co. v. Rodgers,89 Tex. 680, in which this court laid down the rule that to determine the question of liability for injury to a child it is proper to take into consideration his age, intelligence and ability to understand the character of the act performed and its consequences.
For the error indicated the judgments of the District Court and Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded. *Page 282