Castilleja v. Southern Pacific Company

Decision Date11 June 1971
Docket NumberNo. 28623.,28623.
Citation445 F.2d 183
PartiesElena CASTILLEJA et al., Plaintiffs-Appellees, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Ferd C. Meyer, Jr., Harper Macfarlane, San Antonio, Tex., for appellant.

Sidney Ravkind, Houston, Tex., Les Mendelsohn, San Antonio, Tex., for appellees.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

The parties in this wrongful death action are here for a second appearance, but this time the roles of appellant and appellee are reversed. On the prior appeal, appellants Ausencio Castilleja's widow and minor children (the present appellees) secured reversal of a judgment based on a jury verdict in favor of Southern Pacific Company and a new trial based upon an improper jury instruction not here at issue. Castilleja v. Southern Pacific Company, 5 Cir. 1969, 406 F.2d 669. Upon retrial the jury, under Rule 49(b), F.R.Civ.P., answered written interrogatories and returned a general verdict in favor of Mrs. Castilleja and her minor children in the amount of $90,000.00. Southern Pacific appealed and urges three asserted points of error in the second trial below. We affirm.

The deceased, Ausencio Castilleja, was fatally injured on January 5, 1966, in Guadalupe County, Texas, when a train of the Southern Pacific struck a truck in which he was a passenger at a grade crossing in the open countryside about three miles from Seguin, Texas. Both the driver of the truck, Johnny Ortiz, and the deceased were employees of Economy Furniture Company, a retail establishment in Seguin and were delivering furniture to customers living outside town on the day of the accident. The decedent was Ortiz's helper. Ortiz survived the accident and gave testimony at the first trial. He was also a plaintiff. He did not perfect an appeal from the adverse verdict and was no longer therefore a party when the case was retried. Ortiz did not testify at the second trial, but his prior testimony was allowed to be read in evidence over objection by Southern Pacific counsel that there was no proof that he was beyond the jurisdiction of the court or otherwise unavailable to testify. The admission of this prior testimony forms the basis of appellant's first claim of error.

The second asserted error is that the court erred in instructing the jury they could find in favor of the plaintiffs, based on the railroad's operation of the train at an unsafe speed under the circumstances, over the railroad's objection that there was no evidence the train was proceeding at an inappropriate rate of speed, the operator of the truck being under a duty to stop before proceeding across the tracks.1 This ground is based upon the submission of Special Interrogatory 2: "Did the defendant negligently operate the railroad engine at an unsafe speed under circumstances which proximately caused the death?" to which the jury answered "Yes".

Lastly, Southern Pacific maintains that the court erred in submitting to the jury the question of whether the grade crossing was extrahazardous and if so whether the railroad was negligent in so maintaining it, over its objection that the evidence was as a matter of law insufficient to permit submission to the jury of this issue. The jury answered in the affirmative an interrogatory to this effect with the additional finding that it proximately caused the death of Castilleja. (Special Interrogatory 3.)

The trial court's alleged errors in the three particulars related, the admission of Ortiz's prior testimony and the instructions to the jury on the questions of the train's speed and the hazardous nature of the crossing were preserved for our review by motion and for new trial and for judgment n. o. v. addressed to the trial court after verdict and thereupon denied.


When railroad counsel objected to the introduction of Ortiz's prior testimony, the court inquired of counsel for the appellees as to the whereabouts of Ortiz. Counsel informed the court that an attempt had been made to locate Ortiz and that it was learned he was working in Dallas, Texas, but that no information was available as to where he lived in Dallas. The trial was in San Antonio, Texas, in the Western District. The trial judge was entitled to notice judicially that the population of metropolitan Dallas is upwards of one million people, and that Dallas is in the Northern District of Texas, about 269 miles distant by highway from San Antonio. The court then allowed Ortiz's former testimony to be read to the jury without further predicate being required or attempted, after assuring appellant's counsel that the court would also receive any testimony taken at the first trial which was offered as rebuttal to any portion of Ortiz's testimony.

Appellant contends, on the basis of Rule 43(a), F.R.Civ.P., that Texas law is controlling on the question of admissibility of former testimony. Rule 43(a) provides:

"(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner". (Emphasis added)

Appellant directs our attention to several Texas cases contending that they demonstrate that Texas courts would require more proof of non-availability of a witness than mere statements of counsel. Houston Fire & Casualty Ins. Co. v. Brittian, Tex., 1966, 402 S.W.2d 509; Harris v. Reeves, Tex.Civ.App.1967, 421 S.W.2d 689; Moore v. Spencer, Tex.Civ. App., 1966, 399 S.W.2d 880; M-K-T RR v. Bush, Tex.Civ.App., 1958, 310 S.W.2d 404. Appellees concede on brief that Texas courts appear to require more proof of non-availability than occurred below. For their part, however, the appellees maintain that the question is governed by federal law and that under a liberal application of Rule 43(a), F.R. Civ.P., testimony from a former trial should be considered as the equivalent of a deposition taken under Rule 26(d), F.R.Civ.P., in determining admissibility.2 This view is convincingly stated in Hertz v. Graham, S.D.N.Y., 1958, 23 F.R.D. 17, which cites Wigmore on Evidence, § 1401(a), for the proposition that "(a) There is on principle no distinction between a deposition and former testimony as to the conditions upon which either may be used at the trial". 23 F.R.D. 17, 25, n. 1. Further, in Williams v. Cox, 10 Cir. 1965, 355 F.2d 667, the court cited Rule 26(d) (3) and held that a federal district court properly considered in a hearing before it the testimony given by an attorney in a prior state habeas corpus proceeding, when the attorney was shown to reside more than 100 miles from the site of the federal proceedings.

It is customary in federal courts to accept statements of parties or counsel as to unavailability of witnesses as a predicate to the use of depositions taken under Rule 26, F.R.Civ.P. Stewart v. Meyers, 7 Cir. 1965, 353 F.2d 691; Frederick v. Yellow Cab Co. of Philadelphia, 3 Cir. 1952, 200 F.2d 483.

The record indicates that the court below was satisfied from the statements of counsel that Ortiz was not available as a witness before permitting introduction in evidence of his former testimony. It was within the discretion of the trial court to accept or reject counsel's representations. The court's action in accepting counsel's statement is not demonstrated to be error. We conceive this holding to be in keeping with the established policy of construing Rule 43(a) as favoring receipt rather than exclusion of evidence, Harrington v. C. I. R., 5 Cir. 1968, 404 F.2d 237. We stress also that no complaint is made that the court's action denied appellant the opportunity to cross-examine Ortiz, nor that counsel for appellees was misrepresenting the facts as to his whereabouts. The sole grounds of objection urged on us is the absence of adequate proof of the witness' lack of availability. Thus assuming that error is demonstrated in the abuse of the trial court's ruling, we view it as harmless error. It is suggested to us that since Ortiz, upon retrial, was no longer a party as he was at the first trial, that his testimony on retrial might have been less adverse to appellant. This argument was never clearly advanced before the trial court and appears to us to be conjectural and speculative.

It is our conclusion that the lower court's action in permitting the use of Ortiz's testimony from the prior trial was not an abuse of that court's discretion as to admission of evidence.


We deal next with Southern Pacific's contentions regarding the sufficiency to go to the jury of the evidence on the question of the train's unsafe speed. We determine that this issue was properly submitted to the jury. Since a single finding of negligence on the part of the railroad, — the jury finding that the train was operated at an unsafe speed under circumstances which were a proximate cause of Castilleja's death — formed a sufficient basis for the award of damages against the railroad, the verdict and judgment should be sustained without regard to the correctness of the additional finding of negligence as to the maintenance of the crossing in a hazardous condition. Analysis of the testimony and the other evidence leaves us in doubt as to whether there was sufficient evidence for...

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