*1 404 206;
Womble, Tex.Civ.App., 207 S.W.2d S.W.2d 150 Davis, Tex.
Miller v. Legislature A.L.R. Since corporate, body appellee a
created man- sued and and be it to sue
authorized certainly corporation, it affairs as a age its descrip- of some person the status of a
has decisions, and Texas under all tion its claim is entitled
we think county its
privilege be sued excep- showing of some absent a residence afore- venue statute
tion contained
said. action accord are in We Accordingly, court. things affirmed. all is in court RAILROAD
MISSOURI-KANSAS-TEXAS Appellant, TEXAS, OF COMPANY BUSH, Appellee. Lee
Nolan
No. 10533. Appeals Texas. Civil
Court
Austin. 5, 1958.
Feb.
Rehearing Feb. Denied *2 a by
ment on appellant a as brakeman per- freight train and while in the that riding of his duties he was formance cupola of a caboose when he was struck eye his left his face on the left side object propelled thrown or otherwise causing a through cupola window of the eye him to sight loose the of his left to suffer damages. further alleged He appellant respects negligent in was various and that proximate such negligence awas injuries. cause of-his special In answer issues submitted with appropriate and instruc- definitions jury tions a appellant required found: appellee perform his a brake- duties man ain caboose that reason- was without protection able objects pro- thrown or pelled caboose; toward the re- that suc-h quirement negligence, was such and that negligence proximate appel- awas cause of injuries. lee’s jury appel- assessed lee’s damages $80,000, and a appellee for for that amount was rendered. There was evidence that at or near the place where the accident three occurred persons were seen on standing or near the right of way as passed train appellee window sitting which open. The jury found: “that persons one three standing near the train as approach- the caboose Wayne Howell, Denison, R. Pen- G. H. passed ed and threw a rock or other land, Dallas, Freels, Denison, S. B.C. J. passed hard missile which through the Maynard, Bastrop, Moody, Dan Jr. open cupola window ca- Moody, Austin, Dan appellant. for plaintiff.” boose and struck the Hart, P. LaGrange, Bracewell, Reyn- Joe This second trial of this cause Patterson, olds & Houston, appellee. for and at the former trial Hugh C. Cole testi- fied a appellee. for witness He was not GRAY, present at appellant’s this trial and over ob- Justice. jection gave at the former Appellee appellant sued damages for un- trial was jury. read to the This action is der the Employers’ Federal Act, Liability made thé appellant’s basis of point. first Title 45 seq., per- U.S.C.A. Sec. 51 et for injuries. sonal He appellant alleged is shown the record a (including owned network of lines bill exceptions) over railroad cause had been operated which it trains in February 11, 1957, interstate set for com: merce; night 26, that on the Friday July preceding on the Saturday ap- acting employ- pellee’s the course of attorney his learned Cole, on Feb- Denison, fair giving felt them that was gone ruary ready oppose warning going that I was the announcement Texas. Before his transcript of at- introduction February by appellee *3 oppor- testimony; that I appellant’s attor- wanted torneys were advised further, tunity the object to to cross-examine him neys appellant that would to and notice read that them that testimony being giving I was transcript of Cole’s advance, they attor- be the that wouldn’t so jury. the A conference between surprised appel- particular moment at this and neys was had and the trial court reading And, then, the right to now. he refers object to the lant stated he would no presented; have testimony given I authorities he transcript Cole’s authorities, I but about would it at because the former trial say that do remember the authorities wanted hearsay appellant because obtained, did could Appellee witness not be him. further cross examine here, trial there no nothing has offered been postponement either a not seek testimony offered statement made effort or no made no or a continuance and ready at how about time his condition or deposition announced take Cole’s but long 11 and he’d February might been sick—he began for trial. The sick, long said how been February had IS. was concluded sick; how long he was going to be appellee’s attor- February 12 On one of there was that he could not neys testified former trial Cole that at the produced be later testify from here witness; cross that he was testified as a So, the witness stand if he wanted to. then by appellant; that Cole was examined I objection insist I made that Denison; before hospital ill and in a at ready before the announcements of present planned his illness Cole had case, this and ask the for the trial and further testified testimony Court to refuse to have the read.” And, “Q. find out when did hospital ? going that he was objection After following dis- was cussion was had trial court and out that he between the “A. didn’t find appellee’s attorney: actually hospital last in the until either Friday Saturday, I learned or last Well, talking “The Court: I’m not that he was in neighbors from the authorities; predicate about hospital in Denison. all I’m worried about. And, then, you investigate Well, Reynolds: “Mr. we feel that verify that fact? we’ve satisfied the authorities. Yes, sir.
“A. right, “The Court: All tes- read the timony.” ques- further Reynolds: No “Mr. tions.” Appellant’s exception was saved and the testimony transcript of Cole’s Upon the transcript of Cole’s was read appellant made a further ob-
being offered jury. His that he follows: jection as employed by appellant forty-five years; offering of the most of the time he worked on
“Well,
object to the
trains,
freight
first as a brakeman
of the trans-
and later
testimony in the form
conductor,
tes-
and that
what the
he was familiar
witness
*4
up in the
A bolt
off and knocks a rock
falls
Under
supra
the rule
here
in
up
glass
air and
a
it comes
and breaks
is: Was there a showing that
“was
Cole
good
a
happened
It’s
to me
caboose.
physically
testify?”
unable to
The burden
many
worry
fact,
In
about
times.
don’t
we
appellee
was on
to
showing.
make this
fur-
somebody gets
that unless
hurt.” He
There is no showing
physi-
that Cole was
“my forty-two years on the
ther said that in
cally
only
unable
testify
but
that he was
road,
thrown
objects
I’ve had
numbers
ill
in
hospital
and
county,
in another
caboose,”
he
in another instance
and
in Texas.
It then
that
necessary
became
continually.”
being
said “We’re
thrown at
appellee
diligence
procure
show
trying
in
He said
used
he was familiar with cabooses
testimony by deposition
his
or otherwise
by
railroad,
in
another
he
that
had ridden
testimony
pro-
could not be
they
equipped
those cabooses and said
cured.
with safety devices. He described the con-
appellee
After
that
in
learned
Cole was
safety
struction of
and
de-
cabooses
hospital
procure
he
evi-
time
vices used. He also said that he knew of
physical
showing
dence
his
condition
appellant’s
two
cabooses that had been
presumption
which reason a
con-
to such
equipped
employees.
by
safety
devices
dition
indulged.
cannot be
The rule with
introduc-
reference to the
“Presumptions
upon
are based
some
prior
given
of evidence
at a
tion
necessity,
and
the absence of such
quoted
Supreme
witness is
absent
our
necessity they
indulged,
will not be
State,
Court
Lone Star Gas Co. v.
137
go
the court will not
into the domain
279,
681,
153
Tex.
S.W.2d
697 as follows:
presumptions
proof
where direct
“
*
* *
testimony of a witness
Christopher
City
be
can
obtained.”
v.
given at
former trial
the same
Paso, Tex.Civ.App.,
El
98
S.W.2d
issues,
substantially
case
the same
400,
394,
dism.; 31
Er.
Evidence
C.J.S.
opportunity
there was
where
114;
Freight
Miller & Miller Motor
§
examination, may
reproduced
cross
Hunt, Tex.Civ.App.,
Lines v.
242
it is shown that the witness is
where
Hinojosa,
919.
v.
Tex.
S.W.2d
Saenz
dead,
insane,
he
or
or that
had become
Civ.App.,
tion appellee proceeded or otherwise his to trial without deter- none “physically to show un mining that he was that conditions existed ren- which testify.” able to Prior to announcement dered it reasonably certain that he could not ready appellee objec procure was advised that by deposition Cole’s evidence tions Davis, supra. would be made to the introduction otherwise. Morris v. Baker Sands, supra. Cole’s former matter was and the opinion. Concurring attorneys discussed between the S.W. 522-523. trial court. court in Even if then Appellee says that the of Cole’s admission objections dicated that be over would testimony was a matter within the discre- ruled and the introduction of the court, tion of the trial error
permitted (which the record does admitting it was harmless because sub- show), appellee making not relieved of stantially evidence received same proper one because was from other witnesses. Sweeney, inviting Tex. error. Casseb v. Civ.App., ref., e. Er. r. S.W.2d n. general Texas courts often used the statement effect matter was Davis, Tex.Civ.App., 292 *5 In Morris v. within the sound trial discretion of the 574, ref., 575, S.W. er. court considered the court and absent of an abuse of rule in the permitting the this State as to question discretion the will not be reviewed. introduction of the of absent However a the definition of term has not trial who a former witnesses had testified at attempted by often been our Texas courts. quoted Boyd the of case. The court from In p. 27 135 it Discretion is said Ry. Co., v. St. 101 C.J.S. Louis Southwestern “judicial relative, discretion” is a elastic 813; Sands, 417, Tex. 108 S.W. Baker v. attempt term “any it define is Tex.Civ.App., 520, 521, 140 Trin S.W. and generally regarded danger- a difficult and as ity Ry. Tex.Civ.App., & Geary, B. V. v.Co. undertaking.” ous “legal 138 And at dis- 458, 460, p. ref., 194 S.W. er. and said: cretion”' is defined as: “A be discretion to beyond dispute “It is clear that the exercised in pre- discerning the course purpose the requiring rule the law, by scribed or within the limits which ‘whereabouts’ of un- the witness to be Ry. law fixes.” In Delno Market v. St. known, former is before his Co., Cir., 967, 965, 9 124 F.2d it is said that admissible, require taking was to law word “discretion” is defined as: deposition when his ‘whereabouts’ “ power by ‘The exercised courts known, though his residence be is even questions to determine which no strict Or, beyond limits state. of the applicable which, rule of law is by Key, which Judge ‘conditions said nature, their and the circum- reasonably it render certain case, by stances of the are controlled ab- procure cannot evidence of the personal 1 of the court.’ deposition or otherwise’ sent witness Diet., Bouv.Law Third Re- Rawles’ party offering be shown vision, p. 884.” it.” Saturday, Friday preceding From quoted ap The above definition is with attorney learned was appellee’s proval in State ex rel. when United Fire States say 1089, hospital (he Terte, did not when Ins. Co. v. 351 Mo. 176 in the S.W.2d Tuesday, ill) Lines, when In that Cole was Craddock v. learned Sunshine Bus offered, 388, only 124, dili- 134 Tex. 133 S.W.2d Cole’s attorney verified said: court gence shown hospital. that Cole was fact “Naturally appellate courts dif- will on fer the delicate clear that it is of whether what has been From said objection trial appellant’s courts have notice of abused their full discre-
409 appel- demonstrated that was harmful to have some it trial courts tion. While matter, lant Rule Texas which reason of discretion measure gov- prevent as, truth, all Rules of Civil Procedure does not cases they have constituting not its equitable principles, it is admission from reversible erned Corzelius, Tex.Civ.App., cases error. Oliver v. decide discretion an unbridled proper, S.W.2d they might without deem prin- rule guiding reference to appellant’s We have examined oth ciple.” points er and in of another we view trial Gray, & Co. Houston T. C. R. In will briefly point notice them. The com 42, 143 the court considered S.W. Tex. plaining that ex jury the verdict of the Legislature giving an act of of our cessive need because discussed mo- authority on hear evidence courts disposition appeal. of the The same is true grounded misconduct tions for new trial points complaining failure conditions, that jurors providing, on trial court to instruct verdict. may in discretion new trial “a appel not error for trial court refuse court, granted.” The court said: requested lant’s issue which in effect in “ * ** quired injury by appellee if the sustained the ‘dis- conclude that we manner in which inflicted cop- expressed act above cretion’ could, care, ordinary, in the exercise dis- with the upon level ied is the same reasonably by appellant foreseen judge vested in the cretion employees in charge its of the train instances, may re- that we many *6 injury There the avoided. evidence clearly it wherein view its exercise perhaps and relative to issue sufficient parties have appear that of rights the it, raise however definition to the submitted disregarded.” been proximate of cause included: discre- trial court’s of the The reasonably “it should have been an- by rule bridled the here is tion involved person ticipated by and of supra foreseen by authorities of law established the prudence ordinary of exercise giv- the a witness of that before ordinary the care that event or some as may be introduced former trial at a en occur as event would a natural similar party the offering the original evidence probable consequence.” and the of discharge must burden pro- diligent effort to fruitless appellant’s inquiring negli- The issue his witness or of the the attendance cure jury) proximate gence (found was a the apply this established to deposition. To fail injury necessarily the included the cause of certainly disregard the law would rule of inquired requested about in the is- matters party. opposing of the rights for which its and reason refusal was sue error. Point not testi- may admitted be said that the negli- establish the mony of Cole tended to Upon another trial the evidence should be respect inquired the appellant gence of appellant to what did or did not do limited to special tended by the issues and about respect cupolas rather than with result general the same as establish express opin- permitting witnesses to their appellee. Yet for witnesses other appellant and conclusions ions least, inci- part related to testimony in at problem attempt to correct with re- the by other testified to and matters not dents objects spect being to thrown into the to testimony was adverse His witnesses. point cupolas. (Appellant’s 17.) and, jury, the appellant if believed admission, points All other relate to the probative value material and had appellant’s objections, of testimony to issues. over the support answers happening incidents, improperly of other con- and we admitted It was 410 of the safety meetings at other caboose at various at and times of
versations witnesses; places incidents appellant’s We testified executives. safety ad- discussions complained meetings think relative of evidence was safety devices, appellant’s Mr. missible. replied request McDonald win- for a appellant’s For reasons above stated dow placed cupola shield to be “that point first should sustained the railroad money appropriated had no judgment trial court reversed of the purposes.” those remanded. cause complains 5 Point verdict is ex- cessive. The verdict was an dam- award of foregoing has tendered The ages for: capacity loss of to work and earn opinion majority the court’s however money, past future; physical pain suf- opinion are of that the fered in past and to be suffered stated in the affirmed for reasons future, and anguish mental to> suffered and opinion Archer and filed Chief Justice be suffered in the future. opinion Hughes. filed of Justice my opinion reading of It is evidence shows that at the time transcript testimony of witness of the trial (February, 1957) appellee was requires remand a reversal and years 32 age with a expectancy o.f life we However reasons above stated. since years (then 33.92 July ap 1953 he was question appellant’s disagree other on this proximately years age); points noticed. must be further healthy robust and earning $450' per month. After the un accident he was Appellant’s points 6 in able to work both for a time and afterwards point noticed, clusive, except com 17 later worked at jobs various approxi and for plain mately years of the admission of the three average earned an per other inci relating $113 month. of various witnesses freight trains were happening while dents compensation appellee ques- was a Just *7 safe operated, made at being of statements tion resting within the discretion of the appel made to ty meetings and statements jury under the instructions of the court. yardmasters as superintendents, lant’s We find nothing in the record suggest to superintendents. This evidence sistant that the instructions violated, that im- appellant’s negli the issue of relevant to proper evidence was considered, or that proxi especially the of to issue gence and prejudice, passion or improper other present er points do not cause. The mate prompted influence jury the to fix an ex- presented of evidence issues ror. This cessive award. the jury determine and the to fact appel refusing not err in trial court did can question There be no appellee’s that ver request for directed motion lant’s injury permanent was not and serious. 2 and 4. dict. Points p. In 13 Sec. the rule Tex.Jur. is stated as follows: complains that the witness Point appel testify permitted that Foster was "In General—Discretion in Deter- problem attempt to correct the mining lant did not Amount.—It is a well settled respect objects being thrown into general rule where the law fur- record cupola. In view of entire the legal the nishes no measure damages, present point not reversible error they does unliquidated, this are the amount standing may though alone it to be even awarded largely rests in the dis- objection subject the it was cretion jury; been of the and unless the opinion and conclusion the witness. large so the award is indicate it evidence: as to the condition passion, There is the prejudice result or
4H n corruption or only portion applicable has The rule of such evidence here, my opinion, disjunctive con- is is the their verdict disregarded, “ * * * phrase physically ex- unable or is be set aside as not and will clusive ” * ** testify. rule does court The cessive, by the trial either require any diligence appeal. regard requiring and I have found no case in- in each attained “The end it. compen- compensation. Full is stance abstract; impossible in the is sation Gray however, holds, that dili- Justice vary will different individuals gence required is deposition of the will be which sum estimate of the their ill pos- witness should have been taken The pecuniary compensation. just sible. ap- jury only see courts will parties It must be remembered that the estimate, or that proximate a sane day have had their court with ab- judi- shock do not results attained sent witness and of whether amount And while the conscience. cial his reproduced by should be read- reasonable must bear some awarded ing the transcribed notes court re- sustained, ver- injury proportion to porter in the one tran- instance merely be- set aside will not dict scribed notes public notary review- large or because cause is other instance is one of small In moment. less. awarded would have ing court either jury case all that is sees dam- to assess jury’s function is The page. written prefer that our believe fur- law ages, fact and the law is impractical not so require as to legal admeas- rule for their nishes dilatory, depositions uneconomical taking of warrant, does not urement under these dupli- circumstances and thus substi- the court from restrain rather cate the of an absent sick wit- what would tuting judgment as to its ness.1 for the compensation be a reasonable jury.” injury that of following The pertaining evidence 5 is overruled. Point absent witness Cole was before the Trial Judge when he ruled on admissibility af- trial court prior testimony: firmed. Hart, right; All Mr. do Affirmed. present know Mr. Cole is where *8 A. in hospital time? at He’s HUGHES, (concurring). Justice Denison, hospital. Texas —railroad did not err my opinion the Trial Court In “Q. you problem Do know what his in of admitting evidence the in Yes; he he’s is? Is sick? A. ill. a of given at former trial the witness “Q. And, go when did he this case. hospital hospital ? A. went to the He accept correct statement of I today; ago week would have a admitting in be observed
rule to February. 5th of been on the quoted majority prior a in the at given State, “Q. prior Now, Star Co. time had opinion Lone Gas v. from Mr, 279, you 153 S.W.2d discussed Cole and had 137 Tex. previous testimony, principle, seem that it would admission 1. “On deposition deposition if taken would no of witness bet fact testimony.” though the former he un than Mc taken is ter have been could trial, Ray, Law Texas a witness at the should Cormick Evi available n * * 943, p. weight against dence, 2d Ed. Sec. no particu- planned present In Ray, 729, this to be McCormick & p. footnote Yes; had. hearing? lar A. it is stated: “Q. A. Yes. Before his illness? “As to the infirmity, duration of the inability would seem that at the time “Q. And, you find out when did attend, testify, or should going -hospital ? A. he was test, be the the former evi- actually out didn’t find that he I dence admissible, should be Fri- hospital until in either last discretion, court’s infirmity whether the day Saturday, and learned or last temporary permanent.” neighbors from that he was hospital in Denison. Whatever the rule should be I find authority for holding proof of con- then, And, investigate fining illness of the witness at the time Yes, verify that and A. that fact? is not a predicate sufficient sir.” admission of his former testimony. Gray finds with this two faults Justice question not, repeat I wish is testimony: (1) It show does not my opinion, depo- of substance. If one physically testify, witness was unable to repeatedly may sitions used succeed- only hospital that he was sick and in the why ing trials use of former tes- (2) that it does not show illness to be timony prior be made more restrictive than one, continuing merely temporary. a require? decisions here is whether or not On motion for new trial claimed er- Judge Trial abused his discretion under prior in admitting ror the Cole the circumstances. Underwriters Federal again Appellant raised. attached Exchange Rigsby, Tex.Civ.App.Beau its motion an affidavit Dr. H.W. mont, 130 S.W.2d writ dism. cor. quote: Frietsch from which I judgm.; Bryan, Tex.Civ.App. Bowles v. Dallas, dism., 277 S.W. j.; writ o. w. “That he cognizant is the facts p. 660.2 Tex.Jur. competent herein stated and is to make affidavit; regular that he li- is infer, Judge, Trial that if a as did the physician practicing censed and person confined to a he is is ill and Texas, surgeon of the residing State court, away, 260 miles be in too sick to Denison, Texas, of the regular testify.” “physically unable to hence is medicine; school of that he knows strengthened here This inference Copeland Cole, Sr., Hugh a resident “railroad hos- fact that Mr. Cole was Smithville, Bastrop Texas; County, pital.” day that on about 6th of Febru- objection As to the second ary, 1957, Hugh Copeland the said Jus- quoted Gray, neither in the Cole, Sr., tice rule reported to him at the out- any Star nor in case cited nor patient Lone clinic of the Missouri-Kansas- authority found the re- *9 Texas me does Employes Hospital Texas Railroad at quirement appear that must Denison, Texas, be shown that examination, com- of an absent witness be more the illness plaining of discomfort and a burning temporary. than passing sensation when material from eluding admitting is otherwise in McCor- The test stated or former testi- Ray, Evidence, mony accordingly.” & Texas Law 2d mick ' p. enlightening Ed. 738: See discussion of the minds could differ “If reasonable not term “abuse of discretion” Associate existence or non-existence dissenting as to Justice W. St. John Garwood necessary predicate, Co., Ditto Tex., in v. Ditto Investment .facts question, judge determine the ex- would 309 S.W.2d A. “Q. your trouble? dis- What this He stated his bladder. Sir? months’ several been of comfort treatment had taken duration; that he A. “Q. your What was trouble? relief, re- but that drugs for sulfa with An infection in the bladder. obtained; not been lief had Sr., was Cole, they you Copeland “Q. gave some And Hugh then said H. Dr. W. right. said thereupon by the treatments? A. That’s here, hospital- D., Frietsch, affiant M. any pain "Q. Now, you were examination further ized for certainly you when A. got there? cysty- diagnosis under treatment was; yes, sir. diagnosis was confirmed tis; this pain “Q. you in long were How patient by further examination you was in after A. got there? hospital on the from the discharged pain every day. February, 1957. day 25th “Q. pain? A. Was it severe Frietsch, D. “Affiant, M. W. H. Dr. was. while all times at states that further “Q. every day you were And until Cole, Sr., was Copeland Hugh said finally you get some released —did Texas, Denison, he hospital at * * * I left there A. Even when mentally ca- physically and was both pain. it was still some testimony under exam- pable giving and cross-examina- ination both direct “Q. Well, when was it as severe might in which he any litigation tion you you got was when there? left as it further a witness. He called as No, A. sir. why reason was no states there “Q. you any conversa- Did have stay Mr. necessary, during the if Frietsch with Dr. about whether tion hospital Mr. the Denison Cole in stay hospital, did you or could have left the hospital? you stay in he order testify person reported to thing first He That’s the A. did. Bush Missouri- of Nolan vs. * * * me; told he said Company Railroad Kansas-Texas port of ty, Texas when Appellant with-out ance at the trial tion been made on days, the said Texas; and, February danger to his affidavit. more offered no that such Hugh pending in particularly could 12, 13, 14, could have been one of the Copeland physical physical condi- Bastrop Coun- Cole, following appear- 1957.” Sr., sup- told me to out what was the matter ‘I’m and I will cure right care? A. [******] “Q. ifQ. “Q. going here; All And What did he right; Yes, stay there until he found he, himself, don’t cure you sir. you leave you, tell were under his possible’. you recommended this with me— ? A. He you stay building, hospital? you stay in the A. did. He testify: Cole did The witness “Q. What did Dr. Frietsch say was [*] [*] [*] [*] [*] [*] you question— Let me ask you, with know wrong did he what they you catheterize while you? wrong A. He didn’t Yes, there? A. sir. period days for a of ten until know found the and then when he trouble *10 “Q. Yes, doctor This did? A. sir. cysto- gave in and called Moorman me Every day “Q. scopic times? examination found the A. —several No; twice. trouble. 596; February 6th., Employee’s “Q. Walker Insur through And v. Texas testimony you Association, Tex., days, your ance 298. some ten it’s 291 S.W.2d in ? That’s pain A. extreme As excessiveness right. I express opinion, being yard- no there “Q. you you time Did feel at that stick judg- determine to extent what and testi- could have come down here ment should a remittitur. reduced have fied? A. I don’t would believe I there, left if hadn’t told me to. even opinions The Gray Associate Justice Yes, “Q. sick? A. You were that Hughes Associate discuss Justice fully sir. case see no need facts recite rulings. and other “Q. Now, you in testified you case, of this other did not? A. affirm judgment. I would Yes, sir.
“Q. you And knew that it been you again,
set down not? right.
A. That’s able, you you Had would appeared,
have would A. not? Certainly.” COUNTY, Appellant, CHILDRESS course, Trial have, Court could SACHSE, Appellee. granted a new trial and no doubt would L. A. if he had been convinced that his rul- No. 6744. ing admitting prior the Cole Appeals Court Civil of Texas. predicate was erroneous or that the factually for its admission was incorrect. Amarillo. Feb. on the new trial
The evidence heard confirms, my hearing judgment, orig- Rehearing Denied March ruling of in admitting inal the court prior testimony of Mr. Cole.
Except as herein indicated concur opinion of Associate GRAY. Justice opinion I also concur Chief Jus- ARCHER insofar as it
tice affirms the
judgment below.
ARCHER, (concurring). Chief Justice not believe reading
I do Cole, the witness the circum surrounding which fully are
stances set opinions cause, other
out error, any error, justify
such of this case in view of
reversal the hold Railway Aultman v. Dallas
ing in Ter Company, 152 Tex.
minal 260 S.W.2d notes scribed any question type by appellant. with the of caboose used to, because of tified specific it to three verity He testified instances about objects being thrown transcribed; rocks or I’m sure that it’s or into has been it, caboose; “Big and I’ve read Cut” absolutely accurate near 4Q7 off of concrete fell the former 'San Antonio slabs of trial and at ill he was n overpasses ob- other hospital and in a onto trains at Denison. There them; in- jects in one no showing were thrown at disabling, illness train spilled it gravel expected stance from a car whether was temporary to be of caboose up against and was thrown duration continuing was of a nature. n “and ca- is not pretty good voluntarily us shown showered whether en- ; tered the piece boose” that of oak fell di- once a whether he was top on the rected up enter, a car and came landed his doctor nor is “are glasses purpose shown for caboose. He said what he went there or long by just talking expected broken I’m about. how such as to remain.