79 Tex. 678 | Tex. | 1891
The plaintiff was employed by the defendant to work in its “press room.”
In another room, called the “seed room,” the defendant operated a piece of machinery called a “conveyer,” which was located in the floor of the seed room, and was a shaft with flanges, which was ivorked by steam and when in operation revolved with great power and velocity. It was situated very near one wall of the building, where there was an open door used for the purpose of unloading cotton seed from the cars into the room, but which was not intended to be used for the entrance of persons, though there was evidence that the men engaged about the mill sometimes used it as an entrance.
The conveyor opposite the door was left uncovered and exposed. The evidence shows that it could have been covered and made safe. It was running idle on the night of the injury to plaintiff, which was unnecessary, as it could be easily stopped by casting off the belt without interfering with the movement of the other parts of the machinery.
On the night of his injury, the plaintiff having occasion to leave the building temporarily, on his return found it convenient to enter through the open door above referred to," which was without steps and was elevated some three or four feet above the ground. Plaintiff, in entering
Upon the verdict of a jury judgment was rendered in favor of the plaintiff for $9000.
Appellant’s first assignment of error is that “ The court erred in overruling defendant’s motion for a new trial on the grounds set forth in the first paragraph of said motion, which is as follows: ‘ Because the verdict-of the jury is contrary to the law and the evidence, in this: The testimony for the plaintiff shows that he was the proximate cause of his injury in entering a dark, unlighted room by a door four feet high from the ground, with no steps for entrance, and used exclusively for unloading cotton seed from railroad cars, at the same time having full knowledge of the existence, location, and danger of the conveyer in which he-was injured.’”
The evidence with regard to the knowledge of the danger by plaintiff' and with regard to his own negligence was conflicting; and while we are not prepared to say the verdict of the jury was in accordance with its weight, it is sufficiently supported to make it improper for us to vacate-the judgment on the ground that the court below should have set the verdict aside because it was unsupported by the evidence.
The evidence introduced by the plaintiff was amply sufficient to sustain the verdict if the jury gave credit to it rather than to that introduced by the defendant.
It was peculiarly the province of the jury to judge of the credibility of' the witnesses, as has been often declared by this court.
At the request of the defendant the court gave to the jury a- number of special charges, substantially directing them to find for the defendant if they should believe from the evidence that plaintiff had no business in the room where he was injured; that his injury was caused by his entering a dark room; and if he knew of the existence and situation of the con= veyor or could have known of it by the exercise of ordinary care.
It is insisted by the appellant that the verdict of the jury was contrary to said charges, and that the court should have granted its motion for a. new trial upon that ground.
As these assignments relate to the sufficiency of the evidence they must, be disposed of by what we have said with regard to the first assignment.
Appellant’s ninth assignment of error reads as follows: “ This case ought to be reversed on account of the misconduct of plaintiff’s counsel in the cross-examination of defendant’s witness George Bedart, in asking the said Bedart the five questions set out in defendant’s bill of exceptions-No. 2, because said questions were asked for the purpose of discrediting said Bed art’s evidence in reference to Hanlon’s knowledge of the existence of the conveyor where he was hurt, and without any intention on the part of plaintiff’s, counsel to follow up the impeachment of said Bedart by the
The bill of exceptions referred to reads as follows:
“Be it remembered that on the trial of this case the plaintiff's counsel propounded the following questions to Geo. Bedart, a witness for defendant, on cross-examination:
“1. Question. I will ask you whether or not shortly after Hanlon came out of the hospital, and while in the cake room of the mill, you were present at a conversation in which Hanlon asked you how you came to say to Mr. Heidenheimer you had notified him, Hanlon, about the danger and to keep out of the mill, and you replied you had not so told Mr. Heidenheimer? Do you remember a conversation of that sort?
“Defendant's counsel objected to the question, and the court overruled the objection, to which ruling defendant excepted.
“ 2. Question. Do you remember a conversation between Louis Evers and yourself shortly after the accident in the mill room in which you stated to Louis Evers the boy was not to blame, and this conveyer should have been covered, and it would be put on you, and Evers stated to you that you could not swear the boy was in there, and you answered you did not know what you would swear to before you got through with this case?
“The plaintiff, on defendant's objection, withdrew the question, and defendant excepts to the question, because, notwithstanding its withdrawal, it has had its effect.
“3. Question. Do you remember a conversation between Louis Evers and yourself shortly after the accident in the mill room in which you stated to Louis Evers the boy was not to blame, and this conveyer should have been covered, and it would be put on you, and Evers stated to you that you could not swear the boy was in there, and you answered you did not know what you would swear to before you got through with this case?
“The plaintiff, on defendant's objection, withdraws the first part of the question and will ask the balance. The defendant objects, notwithstanding the withdrawal of the question, because it has had its effect.
“4. Question. In a conversation between yourself and Louis Evers shortly after the accident in the mill room, did you or not state to Evers that you could not swear that the boy was in there ?
“ Defendant objects to this question because the witness has already answered this in the direct and cross-examination. Objection overruled, and defendant excepts.
“5. Question. In this conversation—a conversation shortly after the accident in the mill between Louis Evers and yourself when you were talking about this case—did you or not say you did not know what you would swear to before you got through with this case?
“To all of which questions the witness George Bedart answered in the negative.
“The defendant's counsel objected to the question and the plaintiff withdrew it.
“And to all of which questions the defendant's counsel objected, on the ground that they were irrelevant and not pertinent to any issue made by the pleadings or any testimony given by the said Bedart, and because they were calculated to prejudice the jury, the said plaintiff's counsel not thereafter having introduced any evidence to contradict the said Bedart in reference to any fact contained in said questions, or otherwise pursued any course of examination of the parties named in said questions with a view of impeaching the testimony of the said Bedart."
We think that such matters as are here complained of must be left to the discretion of the trial court.
If the party asking such questions either withdraws them on objection without an answer or when answered brings no evidence to contradict the witness or impair the .force of the evidence, we can not believe that with the advantage of argument of counsel to the jury there can be such ground to apprehend that the verdict has been influenced by the questions propounded rather than by the answers of the witness as to make it proper to reverse the judgment by this court on account of such proceedings.
Appellant contends that “ the verdict ought to be set aside on account of the improper conduct and remarks of the counsel of plaintiff in addressing the jury, wherein he said, in commenting on the evidence of Louis Seinsheimer, c Gentlemen of the jury, will you believe this little Israelite?' it being well known to the court and jury that said Louis Seinsheimer and defendant's witness Samson Heidenheimer, the president of defentant's company, were Jews, because the same was calculated to prejudice the jury against defendant and its case."
The words were objected to at the time and the objection was sustained, whereupon the plaintiff's counsel withdrew the language.
This action was, we think, a sufficient admonition to the jury in this instance that they should not suffer themselves to be unfavorably influenced towards the defendant's case by the words objected to.
There may arise cases when such action will not be considered a sufficient remedy. . We do not think, however, that this one belongs to that class, and we do not think that it would have been proper to have reversed the judgment if the objection had not been sustained nor the words withdrawn.
We are not able to conclude that the verdict is so excessive in amount as to make it proper for us to set it aside for that cause.
The judgment is affirmed.
Affirmed.
