56 Tex. Civ. App. 282 | Tex. App. | 1909
This is the third appeal of this case. Hpon the last appeal it was reversed and rendered by the Court of Civil Appeals of the Third Supreme Judicial District (105 S. AY., 519), but upon a writ of error the Supreme Court reversed that ruling and remanded the cause (101 Texas, 411, 108 S. W., 813). The case was again tried in the District Court of Bowie County, resulting in a judgment in favor of the appellee for damages in the sum of $7500, from which, the present appeal is prosecuted.
The facts in the case are substantially stated in the opinion of the Supreme Court upon the former trial, and of which we content ourselves with a reproduction: “The St. Louis Southwestern Eailway Company of Texas maintained at Texarkana, in Texas, a system of sidetracks, or switches, consisting of nineteen tracks, which crossed Oak Street from east to west, and were numbered from one on the north side to nineteen, inclusive, on the south. Many cars' were stored upon these tracks upon both’ sides of Oak Street, and engines were frequently moving the cars across that street in both directions. There were on the occasion when this injury occurred a number of cars on different tracks on each side of the street. Oak Street extends from the business part of the city of Texarkana southward across this system of tracks, and is the only street by which one who desires to go from the northern part of the city to that part south of the railroad tracks can pass, unless they go some distance into Arkansas. Oak Street was a public street of the city of Texarkana
Objection is made to the testimony of Boyd, that on previous occasions when he undertook to cross the tracks at this place, while any switching was being done, there would be someone there to tell him when to cross. In this connection the appellant requested a special charge instructing the jury that they could not consider this testimony in determining whether the appellant was guilty of negligence in failing to keep a watchman at that crossing. The admission of this testimony, the refusal of the special charge,' and the
On a former trial J. F. Lytle, the foreman of the switching crew which was operating in the yards on the night the appellee was injured, testified as a witness for the appellant. A report was made of his testimony on both the direct and cross-examination, by the official stenographer. On the last trial in the court below, as well as on the one preceding, this report was introduced and used by the appellee, over the objection of the appellant. The objection was based upon the contention that no sufficient predicate for its introduction was laid. It seems that after the first trial, which occurred in 1905, Lytle disappeared from Texarkana, where he then resided, having left the employ of the appellant company. Considerable inquiry was made by counsel for appellee to ascertain his whereabouts, but without success. Upon the second trial the stenographer’s report of his testimony was used, and in discussing the objections there made to its use the Supreme Court lays down the rule adopted in this State for the admission of that character of testimony in the following language : “The proper predicate being laid to show that Lytle’s whereabouts is unknown and that diligent search has been made to ascertain where he is, the evidence to prove what he testified to on a former trial should be admitted.” (101 Texas, 411, 108 S. W., 813.) The court, however, declined to pass upon the sufficiency of the predicate laid in that case, giving as a reason that the same conditions would not probably arise upon another trial. Without undertaking to state the full extent of the effort made to discover the whereabouts of Lytle, or the diligence used to bring him into court as a witness, we think it is sufficient to say that a proper predicate was laid. He had been absent nearly three years, and no one seemed to know where he was. This, we think, was a strong fact tending to show that he was beyond the jurisdiction of the court. The sufficiency of the predicate is a matter resting largely in the discretion of the trial court, and we do not think in this ease that discretion was abused in the admission of this testimony.
Assignments numbers five to ten, inclusive, all present questions which involve practically the same legal propositions. They complain of the admission of the following testimony elicited from Lytle on cross-examination upon a former trial, and which was produced upon the last trial from the stenographer’s notes and admitted over the objection of the appellant: “I say that there ought to have been a switchman riding that car, and had a light, because that is a long field, and the switchman’s duty, that is, to protect it from running
The only other assignment which we deem it necessary to consider is that complaining of the refusal of the court to give special charge FTo. 2 requested by the appellant. That charge in effect requested the court to instruct the jury that even if Boyd did stop and look and listen when he reached the first of the tracks over the crossing, and at a time when his view was partially obstructed by some intervening houses, that if he failed to look and listen again when he got to a point fifty feet south of the track upon which he was injured, or at any other point between .there and where he was injured, and that had he done so he could have discovered the approach of the car in time to have avoided being injured, and if the jury believed that a person of ordinary prudence situated as Boyd was would not have failed to look in the direction of the moving ears, to find for the appellant, regardless of whether or not its employes were guilty of negligence. We think the issues embodied
We think the remaining assignments of error are without merit, and they are therefore overruled.
The judgment of the District Court is affirmed.
ON MOTION FOR REHEARING.
In the motion for rehearing counsel for appellant insist with much force of argument that the trial court erred in refusing to give special charge Mo. 2 above referred to. Upon further examination of the record, we find that the issue as to whether the appellee was guilty of contributory negligence in failing to look and listen after starting over the crossings and before reaching the track where he was injured, was fully submitted in the general charge of the court. The general charge upon that issue is as follows: “If you believe from the evidence that the plaintiff failed to look or that he failed to listen for the cars when he arrived at, or while he ivas attempting to go across said crossing, and if you belieVe from the evidence that such failure to look or such failure to listen for the cars, if there was such failure, was negligence, and that such negligence, if any, caused or contributed to cause his injury, then, in either event, you will find the plaintiff guilty of contributory negligence, and will find for the defendant.” After having given this instruction, it would have been improper to give the additional instructions requested.
The motion for rehearing is overruled.
Affirmed.
Writ of error refused.