Cunningham v. Austin & N. W. R. Co.

• Decision Date: 20 June 1895
• Citation: 31 S.W. 629
• Parties: CUNNINGHAM v. AUSTIN & N. W. R. CO.
• Court: Texas Supreme Court

31 S.W. 629

CUNNINGHAM v. AUSTIN & N. W. R. CO.

Supreme Court of Texas.

June 20, 1895.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by Eugenie Cunningham against the Austin & Northwestern Railroad Company to recover damages for the death of her husband, caused by defendant's negligence. From a judgment for defendant, plaintiff appeals.

The trial court, on the objection of defendant, refused to allow plaintiff to ask one of defendant's witnesses certain questions on cross-examination, and the court of civil appeals has certified to this court the question, "Did the district court err in sustaining the objections aforesaid, and excluding the testimony referred to?" Question answered in the affirmative.

J. L. Peeler, for appellant. Fisher & Townes, for appellee.

DENMAN, J.

Appellant seeks to recover damages for the death of her husband, James Cunningham, a conductor on one of appellee's trains, caused by a wreck occasioned by the breaking of a car wheel on a car running from Llano to Austin on the 22d day of December, 1892. The petition charged the negligence to consist in the fact that the wheel had a crack or flaw in it, which was known to appellee, or could have been known by the use of ordinary care, and that appellee's car inspector (Rownie) at Llano, whose duty it was to carefully inspect wheels before the same left Llano, was incompetent to perform the duties required of him, and that on the day of Cunningham's death he did not inspect said wheel, as was his duty. There was testimony tending to show that there was an old crack in the wheel, and that it could have been discovered by an inspection made by competent inspector. The witness Rownie, for defendant, testified that he inspected the wheel on the morning of the accident, at Llano, he being the only inspector on the road, outside of Austin, and during the time inquired about hereafter, and it being his duty to inspect the cars at Llano on said dates, and that at the date of such inspection he could discover nothing wrong with the wheel. On cross-examination the witness Rownie testified that the reason he said he inspected it on December 22d was because he understood the accident was on that date, and because he inspected that car every day it was in Llano; and that he did not think there was any other reason for his remembering it, only that he knew he inspected it every day; that he knew it was 7 o'clock that he looked over the coach on that morning, because that was the hour he always went to work. Counsel for appellant thereupon asked the witness whether he inspected the cars at Llano on the 23d and 27th days of December, 1892, January 6, 1893, February 21, 1893, March 9, 1893, and April 4, 1893, all subsequent to the date of the accident; counsel stating that the object of the question was to prove by Rownie that on said dates he had not inspected the wheels of appellee's trains at Llano, and, if he stated that he had inspected them on any one or all of the above dates, then to offer witnesses who would testify that he did not inspect them on either of said dates. Counsel for appellee objected to this testimony, as being incompetent, irrelevant, and immaterial, and not tending to prove any issue in the case; and that, since appellant was seeking to recover for an injury inflicted on the 22d of December, 1892, anything that Rownie may or may not have done after that date was wholly irrelevant and immaterial, and that on such matters the witness could not be impeached. The court sustained the objections, and refused to allow the questions. Under the circumstances stated above, the court of civil appeals for the Third supreme judicial district has certified to this court the question: "Did the district court err in sustaining the objections aforesaid, and excluding the testimony referred to?"

If there was no issue in this case as to Rownie's competency, we are of the opinion that there would be no causal connection between the negligence of Rownie on days subsequent to the injury and the death of Cunningham. Such subsequent neglect of duty to inspect cars might raise a moral probability that he failed to inspect the car on the morning of the accident, but such probability alone would not connect such negligence with the chain of circumstances resulting in the death. In order to prevent confusion and surprise in the trial of causes of this character, courts have, as a general rule, confined the evidence to circumstances tending to establish facts constituting links in the...