Kimmey v. Gulf, C. S. F. R. Co.

128 S.W.2d 539, 1939 Tex. App. LEXIS 1130

• Court: Court of Appeals of Texas
• Decided: April 27, 1939
• Docket: No. 3458.
• Status: Published

Opinion

O’QUINN, Justice.

Appellant sued appellee to recover damages for personal injuries alleged to have been caused by a collision between a truck in which he was riding and appellee’s train on a highway crossing in the town of Kirbyville. Appellee answered by general demurrer, general denial, and specially plead acts of contributory negligence on the part of appellant which were alleged to be the proximate cause of his injuries.

The case was tried to a jury upon special issues in answer to which they found .in favor of appellee on all acts of negligence alleged against it, and convicted appellant of contributory negligence, and that such negligence was the proximate cause of his injuries. On these findings judgment was entered in favor of appellee. This appeal is from that judgment.

We have carefully inspected the record and find that all of the jury’s findings have support in the evidence.

Assignments are urged against the argument of attorney for appellee relative to appellant’s failure to produce as witnesses the driver of the truck and other occupants of the truck to testify in his behalf. In view of the record, we think the argument was not improper, but if so, under the findings of the jury amply supported by the evidence, it was harmless, and the judgment proper.

The judgment is affirmed.