70 Tex. 468 | Tex. | 1888
This action was brought by the appellee to recover damages on account of an injury alleged to have resulted from the falling of a stone wall, in course of construction by the appellants, contiguous to the wall of the house in which appellee was doing business. It was claimed on the one side that the wall was defectively constructed, and that this was attributable to the negligence of appellants, and the cause of the injury; while on the other it was contended that the wall was skillfully and carefully constructed, and was thrown down by an unprecedentedly severe wind and rain.
A second application for a continuance was made by the appellants, which the court announced was not sufficient because sufficient diligence to procure the attendance or testimony of the witnesses was not shown. The court, however, notwithstanding this ruling, announced that a continuance would be granted, but that the costs for the term would be taxed against the appellants. This seems to have been a condition on which the court would grant the continuance, and the appellants declined to accept it on these terms and went to trial, reserving a bill of exceptions. The ruling of the court is now assigned as error.
Under the facts on which the ruling was made, we deem it unnecessary to consider whether the ruling of the court on the question of diligence was correct, or whether the court properly exercised its discretion in ruling that the costs for the term should be taxed against the appellants as a condition on which the continuance could be granted. It was said in Burton v. Power, 4 Texas, 380: “Continuances on such terms as the court may think just to impose are common; and, whatever the terms may be, the party on which they are imposed has his election to take the continuance on the terms imposed or to reject it and go to trial; and if he does so, and the verdict is against him, and he believes the court erred in ruling him to trial when he had shown a good cause for continuance, he can have the judgment of the court, overruling his motion for a
Four persons who were drawn as jurors stated, on examination as to their qualifications, that they had heard much about the case, and had formed an opinion as to the plaintiff’s right to recover which it would require evidence to remove, but they stated that they thought they could decide the case according to the law and the evidence offered on the trial, and that they had no bias nor prejudice against either party to the action. The court held that these jurors were subject to challenge for cause, and they were challenged by appellee and set aside. The statute provides that “any person who has a bias or prejudice in favor of or against either of the parties ” is not a qualified juror; and it also declares persons disqualified who have served as jurors in another case involving the same questions of fact. (Rev. Stats., art. 3011.)
In a case at the last Galveston term it was held that the bias or prejudice named in the statute did not relate solely to the person or persons parties to the action, but to the case as well. The statute further provides that “a challenge for eause is an objection made to a particular juror, alleging some fact which under the provisions of the first chapter of this title, disqualifies him to serve as a juror in any case, or in the particular case, or which, in the opinion of the court, renders him an unfit person to sit on the jury. (Rev. titats., art. 3080.)
This statute shows that the court, trying a cause, may allow a, challenge for cause on other grounds than those which are declared to render a juror disqualified in the particular case, and when this power, which must necessarily be discretionary in character, is exercised, it ought not to be reversed in any case unless it be made clearly to appear that thereby the party
It is urged that the court erred in refusing to permit the appellants to read in evidence certain papers showing their right to construct the wall on the ground occupied by it. There was no error in this ruling, for there was no question involved as their rights there properly to construct.the wall. The question was, whether they had so used property they had the right to use as to injure the appellee, and not as to their right to use it in a lawful manner.
The court excluded some interrogations propounded to two witnesses and their answers thereto, and this is assigned as error. An inspection of the record shows that the same witness had already testified to substantially the same facts, and, if the evidence was admissible, there is no reason to believe that the refusal of the court to permit a repetition could have affected the result; and especially so when a very large number of witnesses gave testimony on the same points, tending, to prove the same fact.
It is urged that the court erred in refusing to give charges asked by appellanst. Every charge, asked and refused, was embraced in the charge given, in so far as they are shown to have had any application to the case made by the pleadings and evidence, and some of them were reiterated. As illustration the appellants asked the court to instruct the jury that “negligence is that want of care which ordinarily prudent men take under like circumstances.” Almost every paragraph of the charge informed the jury that to authorize a recovery by the appellee, it must appear that the injury resulted from a failure of the appellants' to use ordinary care in the construction of the wall. A part of the charge given was “you are further instructed that the defendants and their employes were bound to use such care and skill in the construction of said wall and placing'said truss as persons of ordinary prudence would exercise under the same circumstances and surroundings, and if you find that the defendants did exercise such care and skill, and that said wall was thrown down, or caused to fall by reason of an extraordinary rain storm, such as could not have been anticipated, and by reasonable care guarded against, then you should find for the defendant.” The charge given was applicable to the case made, and as correctly informed the jury as to the law of the
About fifty witnesses testified on the trial, and th eevidence of almost all of them bears upon the question of proper construction of the wall, and the cause from which it fell. This-evidence was conflicting, and we can not undertake to determine its preponderance. That has been passed upon by a jury under a proper instruction, and their finding is conclusive, there being ample evidence to justify it. The same is true as to the amount of damages awarded by the verdict.
There is no error in the judgment, and it will be affirmed.
Affirmed.
