Galveston, H. & S. A. Ry. Co. v. Wesch
| Citation | 22 S.W. 957 |
| Parties | GALVESTON, H & S. A. RY. CO. v. WESCH. |
| Decision Date | 22 June 1893 |
| Court | Supreme Court of Texas |
Action by William Wesch against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries received in the wreck of a train on which plaintiff was a passenger. A judgment for plaintiff was reversed on appeal by the court of civil appeals, (21 S. W. Rep. 62,) and thereafter, on rehearing, plaintiff remitted part of the damages recovered, and the judgment was thereupon affirmed, (21 S. W. Rep. 313.) Defendant brings error. Reversed.
Appellee took the deposition of H. A. Hawkins, and in its cross interrogatories to him appellant propounded this question: "If, in answer to any of the direct interrogatories, you have stated anything as to the rate of speed the train was running at the time of the wreck or accident, state how you know, and state particularly what attention, if any, you paid to the speed of the train; and you will also state what knowledge and experience you have had in learning to ascertain the speed at which railroad trains run, giving such facts as are actually within your knowledge." Part of the answer to this cross interrogatory was as follows: "And all were nervous and apprehensive, and the effects and sensations were those of very last speed, and what seemed to me reckless speed." In the manner and within the time prescribed by the statute appellant submitted a motion to strike out this part of the answer of the witness to the above cross interrogatory, because not responsive to the question, and not a statement of any fact, but a conclusion of the witness. This motion was overruled, and over the same objections appellee was permitted to read to the jury the part of the answer complained of, and this action of the court is assigned as error.
Upson, & Bergstrom and Thos. McNeal, for plaintiff in error. John P. White and Ireland, Burges & Dibrell, for defendant in error.
This suit was brought by appellee to recover damages for personal injuries alleged to have been received while a passenger on a train of the plaintiff in error. The injuries were inflicted by a derailment, which was claimed to have been caused by the negligence of the company's servants. The plaintiff's collar bone was broken, but his injuries otherwise were slight. He obtained a verdict for $7,500, for which the court gave him judgment.
During the progress of the trial, the defendant, who was under examination as a witness, was asked by his counsel the following question: "State, if you can approximate, what expenses you have been at by reason of the accident and injuries received." The question was objected to on behalf of the defendant, but the court overruled the objection, and permitted the witness to answer, "About $750 or $800." The ruling of the court was excepted to, and was assigned as error upon the appeal. The action of the court in permitting the question and answer was clearly erroneous. The plaintiff must have known of what his expenses consisted, and should have been required to state them in detail. His answer to the question as propounded was dependent upon his opinion as to what expenses were legitimately chargeable to his injuries, and was, in effect, a conclusion upon mixed questions of law and fact. For the error of the trial court in admitting this testimony the court of civil appeals entered judgment reversing the judgment below, and remanding the cause; but, in order to cure the error, the attorneys for the appellee filed a remittitur for $800, and prayed the court to set aside its former judgment, and to affirm the judgment of the trial court. This was accordingly done. The appellant, who is the plaintiff in error in this court, now complains that the court of civil appeals erred in allowing the remittitur, and in affirming the judgment. We know of no precedent for the court's action, except the case of Railway Co. v. Trawick, 80 Tex. 275, 15 S. W. Rep. 568, and 18 S. W. Rep. 948. In that case the plaintiff sued to recover for the loss of and injury to cattle which had been delivered to the defendant company for shipment. Some of the cattle were permitted to escape from the defendant's pens before the bill of lading was executed; others were injured in transit. In the verdict of the jury the damages for the cattle lost before the bill of lading was signed was assessed separately from the damages to those which occurred in course of transportation. There was a stipulation in the bill of lading that the shipper should bring suit for any damage which might accrue to him for breach of the contract within 40 days. This court held that, as to the damage which accrued after the...
To continue reading
Request your trial
-
Houston Chronicle Pub. Co. v. Wegner
...Revised Statutes, would not apply, and the entire judgment should be reversed, and the cause remanded for another trial. Railway v. Wesch, 85 Tex. 593, 22 S. W. 957; Nunnally v. Taliaferro, 82 Tex. 286, 18 S. W. 149; Electric Co. v. Green, 48 Tex. Civ. App. 242, 106 S. W. 463; Railway Co. v......
-
Texas & N. O. R. Co. v. Barham
...plaintiff damages for physical and mental pain, loss of time and his diminished capacity to labor in the future. Galveston, H. & S. A. R. Co. v. Wesch, 85 Tex. 593, 22 S.W. 957. Defendant raises several other points, but since the case, in our opinion, must be reversed, we will discuss only......
-
Dickey v. Phœbe Jackson
...remittitur ought not be permitted "when the error may have had an influence upon the general verdict." G., H. & S. A. Ry. Co. v. Wesch, 85 Tex. 593, 599, 22 S. W. 957, 958; H. & T. C. Ry. Co. v. Bird (Tex. Civ. App.) 48 S. W. 756; T. & P. Ry. Co. v. Taylor (Tex. Civ. App.) 58 S. W. 844; M. ......
-
San Antonio Traction Co. v. Cassanova
...a remittitur, as was the case in Railway v. Duelm, 23 S. W. 596, affirmed 86 Tex. 450, 25 S. W. 406. In the case of Railway v. Wesch, 85 Tex. 593, 22 S. W. 957, the judgment was reversed because the injured person was allowed to state that his expenses were approximately $750 or $800, and i......