# Barber v. Anderson > Court of Appeals of Texas · February 2, 1939 · 127 S.W.2d 358 URL: https://www.frixlaw.com/law-library/cases/9832148 ## Case - **Full name:** BARBER Et Al. v. ANDERSON - **Court:** Court of Appeals of Texas - **Decided:** February 2, 1939 - **Citations:** 127 S.W.2d 358 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Monteith - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832148 ## Opinion text On Motion for Rehearing. In our original opinion we held that the trial court had properly overruled appellants’ objections to the testimony of George E. Kelley, a witness for appellants, who was asked by counsel for appellee if he did not tell a Mr. Padgett shortly after the accident that he thought the accident was unavoidable, on the ground that the driver of said truck did not see the child, and that the child did not see the driver, until they were right together, to which the witness answered, “Yes, sir, I told him they could have seen each other, but I didn’t know why they didn’t. They could have seen each other. There was nothing to keep them from it, and they didn’t see each other until they were right together.” Appellants objected to this testimony on the ground that it called for a conclusion of the witness, and on said objection being by the court overruled, they requested that the question and answer be limited solely to impeachment purposes, and that the jury be so instructed. The court overruled appellants’ objection to the introduction of the testimony and refused to limit it to impeachment purposes. A careful review of the authorities convinces us that we were in error in so holding and that the rule has been established in this State that it is not permis *361 sible for a witness to testify, either on direct or cross-examination, as to whether or not an accident is unavoidable, since this question is a legal conclusion to be determined by the jury only from the evidence detailed from the witness-stand. In the recent case of Yessler v. Dodson, Tex.Civ.App., 104 S.W.2d 95, 97 , in a state of facts similar in many respects to those in the instant case, a witness for appellee was called by appellant to testify as to a conversation in reference to details of the accident on which the case was based. The court at first admitted said conversation as impeaching evidence but afterwards struck same. The appellate court held that this action was proper, and in its opinion said: “The conversation amounted in effect to an expression of an opinion by bystanders upon one of the ultimate issues the jury was impaneled to try under instructions * * * there is apparently some divergence of view among American courts upon this question, but none in Texas, so far as our investigation reveals.” The court continuing says: “Even in states where such evidence is admitted, the rule is usually applied only in those cases where the opinion is closely related to the facts and implies the ‘statement of a fact clearly in conflict with the testimony of the witness on the stand.’ ” In the case of Houston E. & W. Texas R. Co. v. Adams, 44 Tex.Civ.App. 288 , 98 S.W. 222, 224 , it was sought to impeach a witness for defendant by statements he had made shortly after the accident. The court in its opinion says: “Appellee contends the answers were admissible as showing a change of front on the part of the witness, and in that way affecting his credibility. Counsel cites no authority in support of his proposition, and we are unable to perceive upon what ground it is permissible to get immaterial statements of a witness before a jury in order to show a change of front on the part of the witness.” In this case the trial court instructed the jury that it should consider this testimony for no purpose except in so far as it might bear on the credibility of the witness. The appellate court held the testimony inadmissible for any purpose. This rule is established in the following cases : San Antonio Public Service Co. v. Alexander, Tex.Com.App., 280 S.W. 753 ; Southwestern Gas & Electric Co. v. Grant, Tex.Civ.App., 223 S.W. 544 ; Sonnefield v. Mayton, Tex.Civ.App., 39 S.W. 166 ; Stowell et al. v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 259 S.W. 311 . We also sustain appellants’ contention that error was committed by the trial court in overruling appellants’ motion to limit the above testimony to impeachment purposes. The rule as announced in 45 Texas Jurisprudence, page 149, section 270, is as follow's : “Generally speaking, a witness whose credibility is attacked may be shown to have made on another occasion a statement that is inconsistent with his testimony, for this tends to discredit him. But what the witness said on the previous occasion is admissible only to discredit; it does not tend and may not be used * * * to establish the cause of action or defense in a civil case.” In the case of Bradley v. Texas & Pacific Ry. Co., 1 S.W.2d 861, 864 , the Commission of Appeals, in discussing this question, used this language: “The rule is settled that proof of. inconsistent statements of a witness can be introduced and considered only for the purpose of impeachment, and not as substantive evidence of the truth of the matters stated.” In the case of Woodward Wanger Co. v. Nelson, Tex.Civ.App., 11 S.W.2d 371, 373 , the court said: “But evidence admissible only for the purpose of impeachment cannot be considered as establishing the truth of the matters contained in the contradictory statement. * * * “The court did not err in limiting the evidence to the purpose stated. Gulf, C. & S. F. Ry. Co. v. York, 74 Tex. 364 , 12 S.W. 68 , and cases cited in 6 Michie, Digest, 45, 46.” The basis for this rule is the fact that if the jury is not limited in its consideration of this inconsistent statement admitted by the witness, it could give this evidence the same weight as if he had sworn in open court that the accident was unavoidable. For the above reasons, appellants’ motion for rehearing is granted, and judgment of the trial court is reversed and the cause remanded. Motion granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832148. Public record. Not legal advice.