Lewis v. Houston Electric Co. , 39 Tex. Civ. App. 625 ( 1905 )

ON MOTION FOE BEHEAEING.

We have carefully considered appellee’s motion for rehearing and have reached the conclusion that it should be overruled.

We deemed it unnecessary to add anything to what was said in our former opinion upon the questions there discussed, but for the guidance of the court upon another trial of the case we shall briefly discuss the questions presented by appellant’s several assignments of error which complain of the action of the trial court in admitting testimony offered by defendant in support of its plea of contributory negligence to the effect that on many occasions previous to the occurrence in which he was injured, appellant was seen under the influence off intoxicating liquor.

Independent of this testimony there was evidence sufficient to sustain a finding that appellant was, as alleged by appellee, in an intoxicated condition at the time he was injured. The evidence upon this issue was contradictory, appellant testifying in his own behalf that he had not been drunk for two or three years before the time of his injury. There is an apparent conflict of authorities upon the question presented by these assignments, but we are of opinion that the better reasoning is in favor of the admissibility of the evidence. While it is well settled that evidence that one has frequently been in a state of intoxication is not sufficient to raise the issue of whether such person was intoxicated. at a particular time, when such issue has been raised by other competent evidence, we can see no reason why testimony as to the person’s habits of intemperance or of sobriety should not be admitted as corroborative evidence tending to prove or disprove the alleged fact of intoxication on the particular occasion. Such evidence would certainly have a material effect upon ordinary minds in determining the issue of intoxication on the particular occasion and should be allowed to go to the jury.

If there is no evidence raising the issue of intoxication on the particular occasion under consideration, evidence as to the habits of the person in this regard would be immaterial and therefore inadmissible.

We think the cases of Railway Co. v. Kutac, 76 Texas, 473; DeWalt v. Railway Co., 55 S. W. Rep., 534; Railway Co. v. Anson, 11 Texas Ct. Rep., and McKesley v. Railway Co., 12 Texas Ct. Rep., 336, by analogy at least sustain this conclusion. The Supreme Court, in an opinion in the last named case reported in 12 Texas Ct. Rep., page 846, while expressly declining to decide the point, recognized the distinction between the question of the admissibility of testimony of this character as corroborative evidence and its competency as evidence when standing alone.

Overruled.