Opinion
No. 1282.
January 30, 1918. Rehearing Denied February 20, 1918.
Appeal from Hunt County Court; H. O. Norwood, Judge.
Action by P. L. Humphries against the Missouri, Kansas Texas Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.
C. C. Huff, of Dallas, Dinsmore, McMahan Dinsmore and Paul G. Thompson, all of Greenville, for appellant. Evans Shields, of Greenville, for appellee.
The charge that the standing of the engine in front of plaintiff's house and permitting it to emit volumes of black, sooty, and poisonous smoke, was negligence, involves as an element thereof the assumption that such acts were not such as were usual and necessary in the proper conduct and performance of appellant's business. In any event, the subsequent pleading made a specific issue of this element of negligence, and no harm resulted from the overruling of the exception.
We think the evidence of Mrs. Pyland, referred to in the second assignment, was inadmissible. Nussbaum Scharff v. T. B. V. Ry. Co., 149 S.W. 1083; Id. (Sup.) 194 S.W. 1102, and authorities cited in those cases; Gillett's Indirect and Collateral Evidence, pars. 62, 67. But we do not think that it appears probable that the admission of this evidence had any effect on the result.
The finding of the jury as to the amount of the damages has sufficient support in the evidence to sustain it. The plaintiff and his wife testified positively that plaintiff's subsequent ill health was the result of the inhalation of the smoke, and the doctors' testimony is to the effect that such a result was probable.
Affirmed.
HUFF, C.J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.