Houston & Texas Central Railroad Company v. George Bell, 97 Tex. 71

WILLIAMS, Associate Justice. this action to recover damages for an assault and battery alleged to have been committed upon him by McLeary and Robertson while acting as servants of plaintiff in error in discharge of their duty and within the scope of their authority as such.

It was an undisputed fact that he was seriously injured in an encounter with Robertson and McLeary, and the principal questions at issue were whether or not their acts were justifiable on the ground of self-defense, and, if not, whether they were done in furtherance óf the business of their employer, the plaintiff in error, in the scope of their authority, or were outside the line of their duty as servants and purely personal.

We agree with the Court of Civil Appeals that these questions were correctly and sufficiently submitted to the jury by the charge, and that there was no error in the refusal of requests for further instructions. The view of the evidence upon which the writ of error was granted was that it conclusively showed, that, if there was an unlawful assault, it was committed either in resentment of personal affronts offered by plaintiff to defendant’s employes, or as a punishment for conduct of plaintiff, already completed and ended, in roughly handling freight under the care of the employes.

Closer examination of the evidence has led 'to the conclusion that there is some which at least tends to show that what was done was with the purpose, either of expelling plaintiff from the house in which the freight was kept, or to prevent further injury, which they believed to be impending to the freight itself, and that, therefore, this court can not interfere ;with the verdict and judgment upon this ground.

In view of repeated discussions by this court of the principles of law applicable to this subject, and of the correct discussion and application of them in the opinion of the Court of Civil Appeals, elaboration would be unprofitable. The other grounds for reversal were, we think, also, properly disposed of by the Court of Civil Appeals. One of them will be briefly referred to in order to make clear the view upon which it is held not to present ground for reversal.

There was an irreconcilable conflict in the evidence, and the court gave this instruction: “You are the exclusive judges of the weight o*f the evidence before you and of the credit to be given to the witnesses who have testified in the case. If there is a conflict in the testimony, you must reconcile it, if you can; if not, you may believe or disbelieve any witness or witnesses, according as you may or may not think them entitled to credit.

In civil cases the jury is authorized to decide according as they may think the evidence preponderates in favor of one side or another.” We think that trial courts should not instruct juries that they must reconcile conflicts in testimony. As was said in Houston, East & West Texas Railway Co. v. Runnels, 92 Texas, 307: “The law does not impose upon a jury the duty of reconciling a conflict in the testimony of witnesses; it is impossible to reconcile positive and unequivocal affirmative and negative evidence.

Seeming conflicts may be shown not to exist, but a real conflict between witnesses can only be disposed of by discarding the testimony on one side of the issue.” It was another feature of an instruction like this that was discussed in the case of Insurance Company v. Ende, 65 Texas, 124, and we can not determine from the report of that case that objection was made to the part of it requiring the jury to reconcile conflicting evidence. While the charge was improper, it does not follow that the judgment must be reversed because it was given.

Upon this point we agree with the Court of Civil Appeals where it said: “It is true that the jury were instructed, if possible, to reconcile the conflict; but an examination of the evidence makes it apparent that it was impossible for them to do so; and the only thing they could possibly do, in view of the evidence, was to disregard this portion of the charge.

There-was an absolute irreconcilable conflict in the testimony, and we think it may be presumed that the jury could not and did not attempt to reconcile this conflict, but that they decided the ease upon what they believed to be the more credible evidence, and in doing this they were not hampered by any such charges upon the weight of the evidence as those discussed in the Reynolds case.

For these reasons, we are unable to see how the charge could possibly have resulted to the prejudice of appellant.” It will be observed that in none of the cases where such an instruction was given was it held, of itself, to be cause for reversal. Cases - might exist in which such a charge would be mischievous, and the most that can be said in its favor in any case, is that it is a harmless generality. Affirmed.