Volume 148 — Texas Reports

<bold>1. — Courts — Witnesses — Workmen's Compensation.</bold> Under Article 8307, section 4, Revised Statutes of Texas, as amended in 1931, a court before which there was pending an appeal from the Industrial Accident Board had the discretion to refuse a motion requesting an additional examination of a claimant for workmen's compensation, and it was not error for said court to refuse to grant a motion by insurer after said claimant had been examined by two physicians of its own choice, in the absence of any showing by it that said physicians were not competent or that they were not credible witnesses. <bold>2. — Workmen's Compensation — Master and Servant — Borrowed</bold> <bold>Servant. — Judgments.</bold> Where the testimony in the record showed that claimant was employed by his general employer who also paid his wages; that he worked under a foreman employed by his general employer and was not a borrowed servant from another company, it was not error for the trial court to overrule the insurer's motion for judgment non obstante veredicto.

<bold>1. — Nuisance — Words and Phrases.</bold> The operation of a lawful business is not within itself a nuisance, but it may become a nuisance in fact when its operation is conducted in such a manner as to seriously interfere with the enjoyment of life and property. <bold>2. — Nuisance — Equity.</bold> In determining whether a thing or a business is a nuisance, its location, surroundings, usefulness or necessity to the welfare and prosperity of the community<page_number>Page 510</page_number> are all important, and when expensive plants have been erected and are used in a lawful and useful business, adjacent property owners will not be permitted to maintain an action to abate its business because of a trifling annoyance. But, at the same time and under the doctrine of "comparative injury" or the "balancing of equities", the law will not allow one to be driven from his home or be compelled to live in substantial danger or discomfort, and may grant relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance. <bold>3. — Equity — Statutes.</bold> Notwithstanding section 4, of Article 4642, R.C.S., providing that an injunction is authorized and justified where there is threatened and irreparable injury to real estate or personal property, it was not the intention of the Legislature to enact a statute to provide a choice of remedies for litigants, but its purpose was to provide a remedy to cover injuries from which there was no clear, full and adequate relief at law. <bold>4. — Nuisance — Equity — Appeal and Error.</bold> In an action to abate an alleged nuisance of disagreeable ordors and flies originating in an animal rendering plant, it was error for a trial court not to receive evidence balancing the equities of the parties, where facts showed the plant was the only one of its kind in a county of a large population; that there was a need for a rendering plant to conserve what would otherwise be wasted, and to dispose of garbage or other refuse in the community, and that its present location was the only place available where the requisite utilities, such as high power electrical lines, gas and an abundant supply of water necessary to the operation of such a plant could be found.

<bold>1. — Negligence — Carriers.</bold> Evidence that operator of streetcar failed to allow an alighting passenger sufficient time to get beyond the overhang of the streetcar before the car turned into another street was sufficient to raise an issue of primary negligence on the part of the operator and contributory negligence on the part of the alighting passenger. <bold>2. — Evidence — Carriers — Negligence.</bold> As a general rule evidence is not admissible to show that the operator of a streetcar was negligent on other or similar occasions unless such occasions were connected in some special way with the accident in question, both as to time and place, indicating a relevancy beyond mere similarity in certain particulars, and evidence that operator had hurriedly started his car, after making several stops, only a short time and distance before this accident, and on the same run, tended to prove the condition of his mind and nerves as one who was in a hurry, and was so relevant and of such probative value, as to be admissible to show whether the operator failed to give plaintiff sufficient time to get beyond the reach of the car as it make the turn of the corner. <bold>3. — Evidence — Appeal and Error.</bold> In view of an unresponsive answer by witness regarding a newspaper story about another person being hit at the same time that plaintiff was and the objection of counsel thereto being only general, and there being no objection to counsel's conduct in holding a newspaper clipping in his hand so that jury could see but not read it, it was not reversible error for the trial court to overrule an objection to said evidence. <bold>4. — Remittitur — Appeal and Error — Evidence.</bold> Where the court of civil appeals has reached the conclusion that the verdict was excessive and the cause should be reversed for that reason only, but found no evidence to indicate that such excessive verdict was the result of passion or prejudice, it should under Rule 440, T.R.C.P., require a remittitur without the necessity of showing by extraneous evidence that said verdict was the result of passion or prejudice on the part of the jury.

<bold>1. — Divorce — New Trial — Appeal and Error.</bold> Under Rule 324, T.R.C.P., the appellant in divorce proceeding which had been tried without a jury and in which a statement of facts had been filed, was entitled to appeal without filing a motion for a new trial. <bold>2. — Divorce — Appeal and Error — Findings of Fact.</bold> In a divorce proceeding in the trial court in which appellant did not except to the judgment or the court's findings of fact or conclusions of law, but did file notice of appeal with the clerk of the trial court within the required time, and sent to the appellate court a statement of facts as a part of the record, the Court of Civil Appeals did not err in considering appellant's points of error asserting that the evidence was insufficient to support the judgment of divorce.