International & Great Northern Railroad v. Vallejo , 102 Tex. 70 ( 1908 )

ON MOTION FOR REHEARING.

Opinion delivered January 13, 1909.

In preparing the opinion in this case the writer through mistake made the statement as follows: “The fireman testified that it was his duty to keep a lookout in the direction the train was moving and he did so.” An examination of the record shows that the fireman did not so state, and the statement will therefore be eliminated from the opinion.

We have reconsidered the case and see no reason to change our conclusion. There is no evidence in the record upon which a verdict for the plaintiff could be properly sustained.

Counsel for the defendant in error earnestly insist that this court shall remand the case in order to enable them to introduce as a witness the mother of the child that was hurt, who was in the court at the last trial and not introduced for reasons stated by counsel, and also that the plaintiff himself might be introduced as a witness. It is stated that at the last trial he was too young to understand the obligation of an oath and for that reason was not offered, but now he is of age sufficient to be competent as a witness and could testify to the facts as they transpired, and would testify that when the fireman was looking at him he was going directly toward the train. We do not believe that this court should remand the case to enable the plaintiff to testify. It is possible that the boy might remember something about the transaction, but with his surroundings and the number of years that have elapsed we think it is not probable that his testimony as to the facts of that transaction would be reliable.

The motion is overruled.

Reversed and rendered.