Volume 243 — South Western Reporter

<p>1. Evidence <©=► 155(6) — Evidence that automo-bilist could have seen approaching train held admissible.</p> <p>Where, in answer to an interrogatory by plaintiff, witnesses testified that an automobile could have been seen from the train approaching a crossing for a mile or so, the admission of evidence on cross examination that the occupants of the automobile could likewise have seen the approaching train by turning .their heads to the right was not error.</p> <p>2. Railroads <§=o345 (3) — Evidence of absence of danger signals held inadmissible under pleading.</p> <p>The exclusion of testimony that there were no danger signals in addition to the regular crossing sign posted on approach of a road to a railroad crossing not having been pleaded as an act of negligence was not error.</p> <p>3. Appeal^nd error <©=>1052(5)— Error in exclusion of evidence cured by verdict.</p> <p>Error in excluding evidence on issue of decedent’s negligence is immaterial where jury finds that defendant is not negligent.</p> <p>4. Appeal and error ®=3l0'50(2) — Admission of immaterial evidence held harmless.</p> <p>Evidence that an engineer, given in the course of his explanation as to the view he had of the track and objects near at hand on the fireman’s side of the engine, had struck an automobile, under similar circumstances once before, while not relevant nor material to an action against the railroad for injuries, held, that its admission was harmless error.</p> <p>5. Railroads <®=;>347(9) — Evidence as to lookout held admissible.</p> <p>Evidence that a fireman or an engineer would not last very long if, when he is not firing the coal or at the throttle running the engine, he would be engaged in looking for automobiles on the road, and if in running the train he would try to keep a lookout for automobiles on the road he would not stay there very long, because it is not his duty, and there would be more accidents, held admissible.</p> <p>6. Appeal and error <§==>! 170(6) — Mere showing that improper argument was made not sufficient for reversal, unless it influenced jury to appellant’s injury.</p> <p>Under rule 62a, for Court of Civil Appeals (149 S. W. x) the mere showing that an improper character of argument was made does not alone authorize a reversal of the case, but it must further appear that such argument probably influenced the jury to the prejudice of the appellant.</p> <p>7.Appeal and error 070(2)— Erroneous finding not reversible where other finding sufficient to support verdict.</p> <p>It was not reversible error to refuse to set aside the special finding that decedents’ negligence was the proximate cause of the injury, where sustained by the evidence, in view of the finding that defendant railroad was not guilty of negligence which would in any event entitle it to judgment.</p>

<p>1. Action <©=>50(3) — Suits on contract by children against father held properly joined.</p> <p>Where a father agreed with his children all at the same time to pay each one $16,000 if they would withdraw their contest of the father’s application for probate of their mother’s will, it was proper for the children to join their respective claims in one spit against the father to enforce the agreement.</p> <p>2. Evidence <©=5417(9)- — Parol evidence held admissible to establish consideration of written contract.</p> <p>Parol evidence is admissible to establish or prove 'the consideration of a written agreement, where the instrument does not purport to embody the consideration.</p> <p>3. Trial <©=204 — Refusal to give an instruction explaining terms of will held not error.</p> <p>In children’s action to recover on a contract in which their father agreed to pay each $16,000 if they would withdraw their contest of the father’s application for probate of their mother’s will, it was not error to refuse an instruction explaining the terms of the will, which was introduced in evidence, where the terms were unambiguous and could have been easily understood by the jury without' any instruction.</p>

<p>Appeal from Wichita County Court; Guy' Rogers, Judge.</p> <p>Action by W. J. Gourley against the Engineers’ Petroleum Company. Prom a judgment for plaintiff, defendant appeals.</p>

R. Bishop, Judge. Trespass to try title by W. T. Cole against V. G. Hagaman and others. From a judgment for plaintiff, defendants other than M. A. Shaklee appeal.