Panhandle & S. F. Ry. Co. v. Cowan , 1922 Tex. App. LEXIS 1203 ( 1922 )

BOYCE, J.

The account sales was admissible to show the price per pound at which the commission company sold the hogs. The trial court was not required, on objection to "the admission of the instrument as an entirety, to separate the admissible from the inadmissible parts of the instrument. N. Y., T. & M. Ry. Co. v. Gallaher, 79 Tex. 685, 15 S. W. 695 (point not in syllabus); G., H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Q., A. & P. Ry. Co. v. Galloway (Tex. Civ. App.) 140 S. W. 369 (6). So if it be true that the account sales was not admissible to show weight of the hogs at destination, there is no reversible error in the admission of the evidence under the circumstances.

There was no error in permitting the witness J. C. Cowan to refresh his memory by reference to his memorandum book. S. A. & A. P. Ry. Co. v. Turner, 42 Tex. Civ. App. 532, 94 S. W. 214; H. & T. C. Ry. Co. v. Burke, 55 Tex. 325 (11), 342, 40 Am. Rep. 808.

We do not approve the character of argument referred to in the fourth proposition, but on the whole record do not think it probable that any harm to appellant resulted therefrom.

We find no error in the matter of taxation of costs except in the item of 5 cents, cost Of entering appearance of the Ft. Worth & Denver City Railway Company, an item too small for consideration.

The evidence made an issue as to negligence on the part of the defendant, and did not conclusively establish the plea of contributory negligence so that defendant was not entitled to a peremptory instruction.

The seventh proposition is not germane to any assignment.

Affirmed.