Galveston, Harrisburg & San Antonio Railway Co. v. Henning , 90 Tex. 656 ( 1897 )

DENMAN, Associate Justice.

Henning sued the Galveston, Harrisburg and San Antonio Railway Company to recover damages for personal injuries claimed to have been inflicted upon him by the negligence of the engineer of the crew to which he belonged, alleging that such engineer was a careless and reckless person. In order to establish this fact plaintiff propounded interrogatories to J. M. Hillian for the purpose of eleciting his answers to the effect that such was the engineer’s general reputation, and defendant propounded cross interrogatories with the view of learning the names of the persons whom the witness had heard speak of the engineer as such a person. In response to the direct interrogatories the witness testified that the engineer’s general reputation was that of a careless and reckless person, and to the cross interrogatories he answered, giving the names of various persons whom he-had heard so speak of him. It does not appear from the record when these interrogatories were filed nor when the depositions were taken or returned. The suit was filed prior to December 11, 1895, at which date an amended petition was filed, was subsequently continued on application of defendant, and when finally called for trial on the 14th day of May, 1896, defendant filed its application for a continuance to procure the testimony of the persons named by Hillian, to the effect that they had not so spoken to him. The application states that “said depositions were in the posses sion of counsel for plaintiff from the time they were filed until the afternoon of May 5, 1896, when they were delivered to counsel for defendant.” Assuming that defendant used every means within its power to secure the testimony, from the time the depositions were thus delivered, on the 5th, until the case was called for trial on the 14th day of May, and that the application shows that fact, still we think it does not show due diligence to secure same prior to May 5. In order to have shown such diligence it should have been made to appear that defendant did not know and by the use of reasonable diligence could not have known of the answers to the -cross interrogatories 'in time to have secured the testimony of the persons named therein. Having filed the cross interrogatories for the purpose of contradicting Ilillian by the production of such persons as he might name in response thereto, it should have shown that it used the proper effort finder the circumstances, such as inquiry of the clerk or adverse counsel, to ascertain whether the depositions had been taken. The trial court, in ruling on the application, had the depositions before it, evidencing when they were returned, and in the absence of a contrary showing we must presume in support of his ruling that they had been filed for a sufficient length of time to have enabled defendant, by the use of proper diligence, to have inspected same and to have procured the testimony the absence of which was made the basis of the application for continuance. The trial judge appended the following explanation to the bill of exceptions taken to his action in overruling the application: “The application for a continuance was the defendant’s second, it having had a continuance at a former term of this court. The cause was originally set down for trial on April 16th and had been passed several times during the term to suit the convenience of counsel, and was finally set down for trial on the day that this motion was offered.” This does not indicate that his ruling was not based upon the fact that defendants application did not show diligence, but merely states circumstances pertinent to such issue. The circumstances stated by the court as to the continuing, setting, and postponing of the case would indicate that defendant should have looked after the depositions before May 5th if it wished to- secure other testimony based thereon. We think the application clearly failed to show such diligence as would have authorized the granting of a second continuance and that the application was properly overruled.

Having granted the application for writ of error mainly upon the impression that the application for a continuance was improperly overruled and believing upon examination of the record that the other assignments are not well taken the judgment will be affirmed.

Affirmed.