Costley v. Galveston City R. Co.

• Decision Date: 24 February 1888
• Citation: 8 S.W. 114
• Parties: COSTLEY v. GALVESTON CITY R. CO.
• Court: Texas Supreme Court

8 S.W. 114

COSTLEY v. GALVESTON CITY R. CO.

Supreme Court of Texas.

February 24, 1888.

Appeal from district court, Galveston county; W. H. STEWART, Judge.

Action by Robert Costley against the Galveston City Railroad Company for personal injuries. Judgment for defendant, and plaintiff appeals.

Waul & Walker, for appellant. F. Charles Hume, for appellee.

STAYTON, J.

This action was brought by the appellant to recover damages for a personal injury alleged to have been received by him through the negligence of the employe of appellee in operating its street railway. On the trial the appellant offered to testify in his own behalf, and this was objected to, on the ground that he had been convicted of a crime which disqualified him. In support of this objection, a transcript of the proceedings of the district court for Travis county showing his conviction of a felony was offered. The appellant then showed a pardon, which removed the disqualification. The court instructed the jury as follows: "The proclamation of the governor renders the plaintiff a competent witness, leaving his credibility to be determined by you from all the facts and circumstances in evidence." It is urged that this was a charge upon the weight of evidence. The fact that the witness had been convicted of a felony, and was at one time disqualified, had evidently been proved in the presence of the jury, and the charge did no more than to inform the jury what the effect of the pardon was, and to leave the credibility of the witness to the jury, as the credibility of every witness. The charge was correct as a legal proposition, and evidently intended to remove any impression the jury may have received from testimony affecting his competency introduced during the trial.

The testimony for the plaintiff tended to show that, in attempting to cross the street, in advance of the street car, he was knocked down by the mule drawing it, and then run over by the car. The evidence for the defendant tended to show that the plaintiff was intoxicated, and lying on the railway in the night-time, and not seen by the car-driver until it was too late to stop the car before it passed over him. So standing the case, the court gave the following charge: "If you believe from the evidence that the plaintiff was knocked down by the mule, and that the car-driver then saw him down on the track, and was guilty of palpable negligence in not stopping the car before it ran over plaintiff, then, although the...