WALKER, J.
The following statement of the nature and result of this suit is taken from appellant's brief:
"The appellee, W. T. Orton, instituted this suit in the County Court of Nacogdoches County, Texas, against T. M. Hooks, Tommie G. Hooks and Riley Castleberry, alleging that on the 7th day of January, 1929, he was the owner of a certain building in the City of Nacogdoches; that on said date T. M. Hooks and Tommie G. Hooks owned a certain automobile, which was being operated upon the streets of the City of Nacogdoches by Tommie G. Hooks and Riley Castleberry; that Riley Castleberry was a passenger and a guest of the said Tommie G. Hooks, and was driving the car at her request, and that while so operating said automobile the same was caused by the negligence of the said Tommie G. Hooks and Riley Castleberry to be run into the appellee's building, demolishing the same, to his damage in the sum of $950.00. The appellee further plead in the alternative that if the facts should show that the automobile belonged to T. M. Hooks, then that the same was in possession of Tommie G. Hooks, as the agent of T. M. Hooks. As grounds of negligence on the part of Riley Castleberry, the appellee alleged that at the time of the collision Riley Castleberry was under the influence of intoxicating liquor, and as grounds of negligence on the part of Tommie G. Hooks the appellee alleged that she was endeavoring to take or wrest the steering wheel from Riley Castleberry at the time of the accident. The appellee sought recovery as against all the defendants in the sum of $950.00.
"The defendants, T. M. Hooks and Tommie G. Hooks, filed a general demurrer, a general denial, a plea of unavoidable accident, and a plea that the sole proximate cause of the collision of the automobile with the appellee's building was the negligence of the driver of a Chevrolet automobile, which was approaching the defendants' automobile from the west at a high rate of speed, and which forced defendants' automobile into the north curb of the street, causing the driver to lose control thereof. Defendants below, T. M. Hooks and Tommie G. Hooks, further filed a cross action against their co-defendant, Riley Castleberry, asking that they have judgment over and against him in event any judgment was rendered against them.
"The defendant, Riley Castleberry, answered by a general demurrer and general denial.
"At the close of the evidence, no issue having been made with regard to any liability of T. M. Hooks, the jury was instructed to return a verdict in his favor, which was done.
"The motion of the appellant, Tommie G. Hooks, for an instructed verdict was refused, and the case was submitted to the jury upon five special issues, the first asking if Tommie G. Hooks was negligent in taking hold of the steering wheel, if she did; the second asking if this was the proximate cause of the wrecking of the appellee's building; the third asking if the defendant, Riley Castleberry, was negligent in permitting the automobile to be driven into the building; the fourth asking if this was a proximate cause of the damage to the appellee's building, and the fifth asking what amount of money would compensate the appellee for his damages.
"No other theory of liability upon the part of Tommie G. Hooks, other than her alleged negligent act in taking hold of the steering wheel, was submitted to the jury or requested by the appellee, the appellee waiving any other ground of liability, whether on the theory of agency, or otherwise, that may have been raised by his pleadings or the evidence. The jury in their answers to the issues submitted
found that the appellant was negligent in taking hold of the steering wheel; that this was the proximate cause of the damage to appellee's building; that Riley Castleberry was not negligent, and that the appellee's damage was the sum of $800.00.
"The appellant requested the submission of issues to the jury covering the theory of unavoidable accident and sole proximate cause plead by her, and also an issue as to whether the appellant's act in grabbing the steering wheel was the result of sudden panic, all of which issues were refused.
"Though appellant moved the court to enter judgment in her favor on the verdict of the jury, such motion was overruled, and judgment was entered in favor of appellee and against appellant in the sum of $800.00, with interest and costs, and that the defendant, Riley Castleberry, go hence without day. Appellant thereafter filed her motion for new trial which was by the court overruled, to which action of the court appellant duly excepted and appellant thereafter, and within the time provided by law, filed her supersedeas bond, and this cause is now properly before this Honorable Court for review."
When the accident occurred, appellant, C. A. Menefee, and Riley Castleberry were riding on the front seat of appellant's car with Castleberry driving. The following excerpts from the testimony of the witnesses Menefee and Castleberry explain how the accident occurred and present the issues upon which appellant relies for reversal of the judgment against her.
The witness C. A. Menefee testified, in part:
"As to how the accident occurred, I will say that we were going down West Main Street and on this side of the creek, we met a Chevrolet car—it was coming around the curve pretty fast—faster than the automobile we were riding in. It pushed us on the curb. When it pushed us on the curb, he (Riley Castleberry) lost control of the car. He never got back in the road until we hit the building."
And further:
"Our car jumped up on the curb—on our right. He (Riley) then lost control of the car. It struck the banister of the bridge. We kept going right into the building—I don't know whether we ever got back in the road or not. We hit the second building."
And further:
"The accident occurred something after eleven o'clock. At the time of the accident, Mr. Castleberry was driving. Miss Hooks was sitting in the middle. I was sitting on the other side. I don't know how long Mr. Castleberry had been driving when the accident occurred."
And further:
"I stated as we were going around the curb, we met a Chevrolet car and that the car was going much faster than the one we were riding in, that it almost crowded our car off and ran it against the curb, and that when it ran us against the curb, Castleberry lost control of the car and it caused the car to run into the building."
And further:
"There was a curve in the street right in there where we met the car. I saw the car before it got to us. It is not a straight street. I may be mistaken but I think there is a curve there. I didn't see Tommie G. swinging on to Riley's arm. I don't know what she did. After our car left the curb, I believe Tommie G. hollered `look out' or something like that, I don't know exactly what she said. Perhaps she was talking to Riley. That is all I remember. With reference to whether Tommie G. Hooks grabbed the steering wheel or what she did with reference to the steering wheel, I will say I did not see her do anything."
The defendant Riley Castleberry testified, in part:
"When I entered the car with Tommie G. and Clem, I was right close to the Redland Hotel. The car belonged to Miss Hooks. It was somewhere around ten o'clock. She asked us to go riding—Clem and myself. We both got into the car then. We drove around in town and down East Main Street. We went through three blocks—on the south side of Fitch's Filling Station we turned around."
And further:
"She drove the car off from the Redland Hotel, then I drove when we got down to the filling station. Miss Hooks asked me if I cared to drive. I don't remember the words she used. She stopped at the filling station and where we were supposed to turn around, I took the wheel.
"We got out on West Main along about Bonita Creek somewhere around eleven, I don't know exactly. When we reached the curve on West Main Street, we met a car. He (the man driving the other car) took more room than he was supposed to and forced me onto the sidewalk. I pulled it back into the street, as I did, the back wheel was still on the sidewalk and when I jerked the car, the wheel hit the banister of the bridge and got out of balance. She grabbed the wheel and pulled it back over, and as I started to jerk it back into the street, it made a turn into the building. When she caught the wheel, we were right up on the sidewalk. It was my intention to get the car back into the street. We hit the second building. She grabbed at the wheel and it knocked it out of my hand."
And further:
"After we came into here—on the sidewalk, we were headed toward the banister and when we hit the banister, I gave the wheel a jerk. After I hit the banister, she grabbed at it and I grabbed it again and it came back
around that way. She grabbed it the second time and it ran it into the...
