* Writ of error dismissed for want of jurisdiction October 26, 1927. *Page 946 This is a suit for damages instituted by appellee against appellant; the damages being alleged to have arisen from personal injuries inflicted on appellee through the negligence of appellant, while he was in the employment of appellant. Appellant answered by general demurrer and general denial, and specially answered that appellee was not performing any service for appellant when hurt, but was a trespasser on its property, and that he was guilty of contributory negligence. The jury, in answer to special issues, found that appellee was injured, as alleged in the petition, through the negligence of appellant, that he was not guilty of contributory negligence, and that he was damaged in the sum of $5,000, and the judgment was rendered in accordance with the findings.
This court has no power or authority to go into the question of the comparative credibility of appellee and the witnesses for appellant. That was a matter addressed to the jury, and they evidently preferred appellee's testimony to that presented by appellant and based the verdict upon that testimony. There is nothing so contradictory, inconsistent, or unreasonable in the account given by appellee as to the circumstances and manner of his injuries to remotely justify this court in assuming the prerogatives of the jury and pass upon the credibility of the witness and the weight to be given his testimony, as is suggested by the first proposition. The jury settled those matters by their verdict, and we are not prepared to hold that their findings were not correct.
Appellee swore that he was injured in the yards of appellant at Harlingen, between 1 and 2 o'clock in the morning, on June 1, 1923, while he was on the middle track. On the night of the injury appellee was occupying a caboose that was standing on one of the tracks, and although not on duty was subject to call at any time. He left the caboose to go across to a restaurant to get food, and followed a well-beaten path used by pedestrians to cross the several tracks. The employees used that track by day or night. The tracks were on an inclined plane, and, while appellee was watching the cars that were being shunted back and forth by the switch engine, which was at work, a car which had been on one of the tracks with the brakes not properly set ran down upon appellee and struck him, and he caught on the brake beams, and the car was then struck by other cars, and appellee knocked off, and his right hand was so mangled that he lost it and two fingers also from the left hand. His jaw was also broken. No attempt was made by appellant to show that any outlook was kept while switching cars across a much used path.
It is stated in appellant's brief:
"The evidence introduced was sharply conflicting on all the issues, and will be discussed in detail in the several assignments."
Still appellant asks this court to reverse the judgment because of a lack of testimony and because appellee's testimony was contradicted by the witnesses for appellant. If "the evidence introduced was sharply conflicting on all the issues," then it was peculiarly a jury case, and, such issues having been resolved by the jury in favor of appellee, this court has neither the power nor desire to interfere with the verdict.
Appellee was not a trespasser in the yards of appellant. He was given a sleeping place in a caboose on one of the tracks; he was an employee of the company, and had the right with others to use the path across the *Page 947 tracks. He was at his place of business when hurt.
A witness for appellant stated that the cars would not roll south on the middle track in May and June, 1923, as appellee said they did, and that they would not so roll now, and the court properly allowed appellee to introduce a witness who stated he did not know whether the cars would roll in 1923, but knew they would in 1924. There was no evidence that there had been any change since 1923 in the level of the tracks, and the testimony was proper to rebut appellant's testimony.
Appellee had the right to ask the questions he did of Miller, a servant of appellant, in order to discredit him. Appellee merely exercised the right of cross-examination on pertinent or impertinent matters in order to discredit the witness.
The sixth proposition is overruled. It was not error to permit appellee to swear as to the usual location of the caboose on the track.
None of the errors assigned should be sustained, and the judgment is affirmed.