157 S.W. 1177 | Tex. App. | 1913
This is an appeal from a judgment for $1,200 in the appellee's favor for personal injuries received in the derailment of a passenger car upon which appellee was a passenger on the 17th day of September, 1911. Appellee alleged that the servants of the defendant railway company were negligent in the manner in which they were running the train at the time of the derailment and negligent in that it permitted its track and switches and equipment to be and remain in a defective and dangerous condition. The defendant answered by a general denial, and specially that the plaintiff was not injured as claimed by him in his petition, but that his action was a fraudulent effort to extort money from the company. The trial was before a jury, and resulted in a judgment as stated.
The evidence on the issue of whether plaintiff was injured by the derailment of the car was conflicting, and while the plaintiff was testifying in his own behalf as a witness the defendant sought to show by him on cross-examination, as the bill of exception shows could have been done, that the plaintiff had been indicted in Taylor county in seven different cases, one of which was for theft, another for an assault, another for carrying a pistol, and others for divers and sundry offenses, all of which were misdemeanors under the laws of this state. The evidence was offered only as affecting the credibility of the plaintiff as a witness, and as tending to support the theory of the defendant that the bringing and prosecution of the suit was the result of a conspiracy and fraud on the part of the plaintiff to feign and claim an alleged injury that did not occur. The court sustained the plaintiff's objection that a witness in a civil action could not be thus impeached. While the authorities on the subject are not uniform, we are of the opinion that the court's ruling was correct. In answering a certificate from this court, the subject received the careful consideration of our Supreme Court in the case of M., K. T. Ry. Co. of Texas v. Creason,
We are of opinion, however, that *1179 appellant's eighth and ninth assignments of error must be sustained. Therein complaint is made of the action of the court in giving special charges Nos. 1 and 2 requested by the plaintiff. These charges read as follows:
"(1) You are instructed that, if you believe that defendant's train was derailed as alleged, then the burden is on the defendant to show that same was not caused through the negligence of defendant."
"(2) You are instructed that, if you believe that defendant's train was derailed as alleged by plaintiff, the fact of such derailment is prima facie evidence of the negligence of defendant."
The fact of derailment was undisputed and the charge first quoted plainly shifted the burden of proof on the issue of negligence to the defendant, whereas it is well settled that the burden of proof on the whole case never shifts from the plaintiff, and the second charge quoted was just as plainly a comment upon the weight of the evidence. It assumed as a matter of law that the mere fact of derailment established in the first instance the important issue of the negligence charged. True it has been said that where an accident happens upon a railway from which a passenger sustains an injury by the breaking down of the carriage or by the running off of the train, or by the spreading or breaking of the rails, the very nature of the occurrence will be prima facie evidence of negligence in the company or its servants. See Hutchens on Carriers, 800; Mex. Cent. Ry. Co. v. Lauricella,
In view of the conclusions above noted, we think it unnecessary to discuss other *1180 assignments of error, but for the errors of the court's charge it is ordered that the judgment be reversed, and the cause remanded.