Dallas Ry. & Terminal Co. v. Baughman, No. 15278

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: RENFRO
• Citation: 243 S.W.2d 233
• Parties: DALLAS RY. & TERMINAL CO. et al. v. BAUGHMAN et al.
• Docket Number: No. 15278
• Decision Date: 19 October 1951

Page 233

243 S.W.2d 233 DALLAS RY. & TERMINAL CO. et al.
v.
BAUGHMAN et al. No. 15278. Court of Civil Appeals of Texas, Fort Worth. Oct. 19, 1951.

Burford, Ryburn, Hincks & Ford and Robert E. Burns, all of Dallas, for appellant.

Blakeley & Blakeley and Carey Williams, all of Dallas, for appellee.

RENFRO, Justice.

The appellants, Dallas Railway & Terminal Company and James V. Johnson, have appealed from a judgment for $550 rendered on a jury verdict in a county court at law in Dallas County in favor of Mrs. A. L. Baughman, appellee, as next friend of Bill Baughman, a minor.

The suit was filed following a collision between an automobile belonging to appellee's minor son, Bill Baughman, and a bus owned by appellant Dallas Railway & Terminal Company and driven by appellant Johnson.

Appellant, in point No. 1, alleges that appellee's counsel committed reversible error in asking the witness Nall questions and eliciting answers calculated to inform the jury that appellant Johnson had been tried in a criminal case arising out of the collision in question and the trial court should have declared a mistrial.

The witness Nall was the only eye witness to the accident except appellee's son and defendant Johnson to testify in the case. He was the first witness and at the beginning of his testimony he was asked if he knew Bill Baughman. He answered that he did not. Further questions developed that he had seen Bill Baughman twice, the first time being the day of the accident and the second time in the criminal court. Appellee's counsel then asked, 'was that the case in which the bus driver was being

Page 234

tried.' Appellant made the following objection: 'Object to that and ask the court to declare a mistrial.' The witness did not answer the question.

The court promptly and properly sustained the objection and instructed the jury to disregard any testimony about any traffic offense and further instructed the jury the case was being tried upon its merits in a civil suit and that testimony would be confined to that alone, and that speaking of the traffic court was immaterial and to disregard any evidence or information about it.

Thereafter, neither the witness Nall nor any other witness was asked about any traffic complaint or trial.

Appellants contend that the offending question was deliberately injected into the record by appellee's counsel for the sole purpose of prejudicing the rights of appellants and to induce the jury to disregard the testimony of appellant Johnson.

We cannot agree with appellants' contention. It will be noted that the witness was not asked if he had seen appellant Johnson since the accident, but was asked if he had seen Bill Baughman since the accident. When he answered that he had seen him one time, appellee asked him where he had seen Bill Baughman, and he answered, 'the criminal court.' Certainly up to this time the questions were not calculated to infer that appellant...