Opinion
Decided March 8, 1899.
Jury — Accepting Part of Witness' Testimony.
The jury are not compelled to credit all the testimony of a witness or reject it all. Though from plaintiff's testimony the engine was standing still, and the escape of steam which alarmed his horses and occasioned his injury was caused by defendant's servants for the purpose only of creating such alarm, they might credit the testimony of the employes that the engine was moving and the escape caused in its operation, and reject that part showing that it was not due to negligence.
APPEAL from Collin. Tried below before Hon. J.E. DILLARD.
R. De Armond and J.M. Patterson, for appellant.
F.E. Wilcox, H.C. Mack, and Garrett Merritt, for appellee.
This is a personal injury damage suit, resulting in a verdict and judgment for the plaintiff. But one question is presented in this court. The plaintiff with his family was traveling in a wagon along a public road. For a certain distance this road and the railroad track ran parallel and near each other. There was a freight train on the track, from whose engine steam escaped and frightened the plaintiff's team, causing them to turn into a ditch and injure his wife.
According to the testimony of the plaintiff and his wife the engine was was standing still when the wagon approached it, and the engineer and fireman acted as if the steam was caused to escape for the sole purpose of frightening the team; and in view of this evidence appellant contends that the acts complained of were the willful acts of the servants, not in furtherance of the master's business, and for which the master is not liable.
There was other testimony, especially that submitted by appellant, tending to show that the train was moving at the time, and that the acts complained of were done in furtherance of the master's business; and also, that there was no negligence on the part of the engineer and fireman.
The jury were not compelled to credit all the testimony of any witness or reject it all. They had the right to make due allowance for the interest and zeal of the witnesses, and to reach the conclusion that the engineer and fireman were guilty of negligence while starting or moving the engine.
Judgment affirmed.
Writ of error refused.