Abilene & S. Ry. Co. v. Burleson

• Decision Date: 18 January 1913
• Court: Texas Court of Appeals
• Parties: ABILENE & S. RY. CO. v. BURLESON.

157 S.W. 1177

ABILENE & S. RY. CO. v. BURLESON.

Court of Civil Appeals of Texas. Ft. Worth.

January 18, 1913.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Action by R. C. Burleson against the Abilene & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

D. T. Bomar, of Ft. Worth, and Ben L. Cox, of Abilene, for appellant. Mahaffey & Fulwiler, of Abilene, for appellee.

CONNER, C. J.

This is an appeal from a judgment for $1,200 in the appellee's favor for personal injuries received in the derailment of a passenger car upon which appellee was a passenger on the 17th day of September, 1911. Appellee alleged that the servants of the defendant railway company were negligent in the manner in which they were running the train at the time of the derailment and negligent in that it permitted its track and switches and equipment to be and remain in a defective and dangerous condition. The defendant answered by a general denial, and specially that the plaintiff was not injured as claimed by him in his petition, but that his action was a fraudulent effort to extort money from the company. The trial was before a jury, and resulted in a judgment as stated.

The evidence on the issue of whether plaintiff was injured by the derailment of the car was conflicting, and while the plaintiff was testifying in his own behalf as a witness the defendant sought to show by him on cross-examination, as the bill of exception shows could have been done, that the plaintiff had been indicted in Taylor county in seven different cases, one of which was for theft, another for an assault, another for carrying a pistol, and others for divers and sundry offenses, all of which were misdemeanors under the laws of this state. The evidence was offered only as affecting the credibility of the plaintiff as a witness, and as tending to support the theory of the defendant that the bringing and prosecution of the suit was the result of a conspiracy and fraud on the part of the plaintiff to feign and claim an alleged injury that did not occur. The court sustained the plaintiff's objection that a witness in a civil action could not be thus impeached. While the authorities on the subject are not uniform, we are of the opinion that the court's ruling was correct. In answering a certificate from this court, the subject received the careful consideration of our Supreme Court in the case of M., K. & T. Ry. Co. of Texas v. Creason, 101 Tex. 335, 107 S. W. 527, and it was there held after a review of the authorities that a witness in a civil suit in this state could not be so impeached or discredited even on cross-examination. To the same effect is the ruling of the Court of Civil Appeals for the Fifth District, as will be seen by reference to the opinion in the case of Hazard v. Western Commercial Traveler's Ass'n, 54 Tex. Civ. App. 110, 116 S. W. 625. Also see Wigmore on Evidence, § 982, p. 1110, and 40 Cyc. 2603, 2604. It is urged that this case is to be distinguished from those of our own courts referred to in that in the present case the witness sought to be impeached was a party, and for the further reason that herein the issue of a simulated injury was presented, but we are unable to see that the distinctions pointed out should alter the rule as already established. The statute of this state has removed the common-law incompetency of persons interested in the issue to be tried and of parties to the suit to testify (see Revised Statutes 1911, art. 3688), and at the same time places them upon the same footing as other witnesses. See Revised Statutes 1911, art. 3647, which provides that either party to a suit may examine the opposing party as a witness, but that his examination shall be conducted and his testimony shall be received under the same rules applicable to other witnesses. It is obvious, we think, that, except as affecting the plaintiff's credibility as a witness, the offered testimony has no relevancy to the issue of fraud, and we accordingly conclude that appellant's first assignment of error raising the question discussed should be overruled.

We are of opinion, however, that appellant's eighth and ninth assignments of error must be sustained. Therein complaint is made of the action of the court in giving special charges Nos. 1 and 2 requested by the plaintiff. These charges read as follows:

"(1) You are instructed that, if you believe that defendant's train was derailed as alleged, then the burden is on the defendant to show that same was not caused through the negligence of defendant."

"(2) You are instructed that, if you believe that defendant's train was derailed as alleged by plaintiff, the fact of such derailment is prima facie evidence of...