Evansich v. G., C. & Santa Fe R. R. Co.

• Decision Date: 01 February 1884
• Docket Number: Case No. 1641.
• Citation: 61 Tex. 24
• Parties: F. G. EVANSICH v. THE G., C. & SANTA FE R. R. CO.
• Court: Texas Supreme Court

61 Tex. 24

F. G. EVANSICH

v.THE G., C. & SANTA FE R. R. CO.

Case No. 1641.

Supreme Court of Texas.

Feb. 1, 1884.

ERROR from Washington. Tried below before the Hon. I. B. McFarland.

F. G. Evansich, Jr., joined by his father, sued defendant in error for damages for injuries received on its turn-table, alleging that his injuries were caused by its leaving it unfastened, unguarded and uninclosed, whereby plaintiff, who was seven years old, played on it and was hurt.

Answer by general and by special demurrers; also by general denial and by special answers. Judgment for defendant.

The pleadings were the same as on a former appeal. See 57 Tex., 126.

The opinion states all facts necessary to its proper understanding, except the general charge of the court, which, except as stated in the opinion, was in harmony with former decisions.

F. D. Jodon and Breedlove & Ewing, for plaintiff in error, cited: Rhius et al. v. Blake, 1 Texas Law Rev., 241;Wentworth v. Crawford, 11 Tex., 132; R. S., arts. 2223, 2224, 2225, 2235, 2236; Weeks on Law of Depositions, sec. 238, p. 267; sec. 374, p. 445; sec. 370, bot. p. 440; sec. 395, p. 462; secs. 238, 502, 524, pp. 581, 583; secs. 400, 534; 1 Wharton's Law Ev., secs. 408, 410, 527, 529; 1 Greenl. Ev., sec. 446; Evansich v. G., C. & Santa Fe R. R. Co., 57 Tex., 128.

Ballinger, Mott and Terry, for defendant in error, cited: 1 Dan. Ch., 920, 922; Allen v. Babcock, 15 Pick., 56;Jones v. Lucas, 1 Rand., 268;Bailey v. White, 13 Tex., 118;McFarland v. Hall, 17 Tex., 690;Gilliard v. Chessney, 13 Tex., 337;Jordan v. Brophy, 41 Tex., 283.

STAYTON, ASSOCIATE JUSTICE.

The first assignment of error calls in question the correctness of the ruling of the court below in striking from a commission certain cross-interrogatories which the appellant filed to one Hemming.

It appears that the defendant in error had once taken the deposition of Hemming in the case, and that afterwards, desiring to interrogate him in regard to some matters of which inquiry had not been made directly in former interrogatories, in reference to which, however, the witness had made some statements in the deposition already taken, the defendant in error filed interrogatories again to Hemming, which were crossed by the plaintiff in error. A commission seems to have issued to take the deposition of the witness, and this contained the direct and cross-interrogatories on file.

At this stage of the matter the defendant in error moved the court to exclude twenty-one of the cross-interrogatories which were designated by number.

The grounds for this motion were:

1st. They were not in cross-examination upon any matter inquired of in chief.

2d. They were not relevant to any issue in the cause.

3d. They were repetitions of matters fully answered in witness' former deposition.

4th. They were improper and objectionable in form and substance.

5th. They tend to increase the cost of the case to no useful or legal purpose.

The motion was sustained, and another commission was directed to issue, not to contain the cross-interrogatories thus stricken out, and upon this commission the deposition was taken, and it, as well as the deposition formerly taken, were used on the trial.

The interrogatories excluded, as well as the direct interrogatories on which the second deposition was taken, are made a part of the bill of exceptions, as are also the direct and cross-interrogatories upon which the first deposition was taken. Both depositions were used on the trial and are made a part of the statement of facts.

There is nothing in the answers to the cross-interrogatories upon which the second deposition was taken which indicates that the cross-interrogatories which were not stricken out were in substance the same as those stricken out, except in two instances in which answers are found which are in substance answers to two of the cross-interrogatories stricken out.

No critical analysis of the rejected interrogatories will be attempted; suffice it to say that they were such, in the main, as tended to show the situation of the witness at different periods when facts of which he testified occurred; such as would test the accuracy of the memory of the witness by comparison of the statements to be made by him with those made by him in the former deposition; such as would so identify his locality with that of others who testified in the case as to the different times when acts and facts of which he spoke occurred, as to give to the testimony of such other persons, in regard to acts which the witness stated he performed, a weight which the evidence of such persons could not have unless they were shown to have been with or near the witness at the time he claimed to have performed certain material acts and to have seen certain things which were material in the case; such as might enable the jury to give the proper weight, if it was entitled to any, to the fact that the witness was not directly interrogated upon the first deposition in regard to some of the material matters to which the direct interrogatories on which the last deposition was taken refer; such as would have explained or accounted for the failure to file such interrogatories at first, or tend to show that their absence resulted from the failure of the witness, in conversations which he may have had with the agents or attorneys for the defendant in error, prior to taking the first deposition, to relate to them his knowledge of some of the most material facts in the case.

The several grounds upon which the motion was based will be considered in the order in which they were made.

The first ground of objection assumes that no questions can be asked on cross-examination except such as bear directly upon some direct interrogatory; that the cross-interrogatories must be confined to the question propounded and to be answered on the direct examination.

That such is the rule in some of the states is true, while in others, and in England, a different rule is adhered to. Wharton's Law of Evidence, 529; 1 Greenleaf, 445.

In Wentworth v. Crawford, 11 Tex., 133, in speaking on this subject, Lipscomb, Justice, said: “We are aware that some dicta are to be found,...