Hardin v. Fort Worth & Denver City Railway Co. , 49 Tex. Civ. App. 184 ( 1908 )

For the fourth time this case is before us on appeal. The former judgments were reversed on account of errors in the charge of the court, as will be seen from the case as reported in 33 Texas Civ. App. 448[33 Tex. Civ. App. 448], 41 Texas Civ. App. 19[41 Tex. Civ. App. 19], and 100 S.W. Rep., 995. The charge is again complained of, but we doubt if the objections urged to the last charge would warrant a reversal of the judgment, though, in stating the degree of care which appellee owed appellant, in the second paragraph the court uses the rather indefinite expression "a high degree of care" instead of a very high degree of care or the highest degree of care. Also in the fourth paragraph of the charge the court instructed the jury that if under the testimony there was any difference in the safety to the passenger of freight train transportation and transportation on passenger trains, appellant assumed such increased hazard or risk incident to his transportation on a freight train. This, we think, was at least inappropriate and should have been omitted. Further than this we do not care to discuss the charge, since our views have been sufficiently expressed on that subject in the previous opinions.

Without, however, determining whether the objections to the charge above pointed out would require the judgment to be reversed, we are constrained to hold that the following rulings on the admission of testimony must have that effect: The appellee was permitted to prove, over the objections of appellant, that appellant was prosecuting this suit on a pauper's affidavit and that his son-in-law had refused to go on his bond for costs. This evidence was clearly irrelevant and could only have had the desired effect of placing appellant before the jury in an unfavorable light, to say the least of it. Appellee seeks in different ways to avoid the force of the ruling, but without undertaking to discuss the matter in detail, we think that the proceeding complained of, as set forth in the record, had a tendency to deprive appellant of a fair hearing before the jury.

We are also of opinion that appellee should not have been permitted to prove that it had a rule which was in force requiring the train crew to report the case of a man who had got hurt on the train, and that it would go hard with the crew who did not do this. The answer to the assignment complaining of the admission of this testimony is twofold: First, that only a general objection was made to the evidence; second, that the testimony was harmless because the evidence did not further show that no report had been made of this accident.

It seems that this testimony was embodied in the stenographer's report of a former trial in which the testimony was objected to because it was irrelevant, immaterial and hearsay, but when this report was offered on the last trial the evidence was objected to generally and the ground of objection was not then specifically stated. We are inclined to the opinion, however, that appellant must have intended in making this objection to incorporate, the ground of objection as set forth in the stenographer's report.

As to the other point, it is sufficient to say that the testimony afforded counsel an opportunity in the argument of the case to treat it as a circumstance tending to prove that no such accident as appellant claimed had occurred, there being no evidence that any such report had been made.

We are also inclined to the opinion that the court erred in permitting Robert Spencer to corroborate his own testimony with the statement that he had testified several times before, and that his testimony was the same every time and the same as was the statement he had made to Mr. Taylor, one of the attorneys for appellee, when first talked to about it out of court. Appellee seeks to justify this ruling on the ground that an attack had been made on the character of this witness by the following cross-examination: "Q. What is your name? A. Robert Spencer. Q. Who was it that found your testimony and found you? A. Found me? Q. Who found out what you would testify to on this case? A. When; this last time? Q. No; the first time that you were ever questioned about this matter. A. I believe that Mr. Jackson said something to me about the case — said there was a case in court. Q. Who came to you first? A. I believe that Mr. Taylor said something about it. Q. When I first asked you that, why did you not tell it right out ? A. Well, it was not the first I heard of it," etc.

We hardly think this amounted to an attack on the character of the witness. The cases relied on by appellee went a good deal farther, we think, than this cross-examination. The questions propounded may have been intended as an insinuation against the veracity of the witness, but we hardly think that that was their necessary effect, because immediately following the question, "Who was it that found your testimony and found you?" which was the most insinuating of all, is a further question which seems to withdraw that construction by explaining what was meant by the question as follows: "Who found out what you would testify to on this case?"

Being unable to approve the rulings on the admission of testimony and to say that they were harmless, we are constrained to again reverse the judgment and remand the cause for a new trial.

Reversed and remanded.