Fort Worth & D. C. Ry. Co. v. Kidwell

• Decision Date: 10 November 1917
• Docket Number: (No. 8726.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 249 S.W. 303
• Parties: FORT WORTH & D. C. RY. CO. v. KIDWELL.
• Court: Texas Court of Appeals

249 S.W. 303

FORT WORTH & D. C. RY. CO. v. KIDWELL.

(No. 8726.)^*

Court of Civil Appeals of Texas. Fort Worth.

November 10, 1917.

Rehearing Denied December 23, 1922.

Appeal from District Court, Clay County; Wm. N. Bonner, Judge.

Action by G. W. Kidwell against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thompson, Barwise & Wharton, of Fort Worth, and Taylor, Allen & Taylor, of Henrietta, for appellant.

Wantland & Parrish, of Henrietta, for appellee.

BUCK, J.

This is a suit for damages filed in the district court of Clay county by G. W. Kidwell against the appellant, for alleged injuries caused by falling into a hole, excavation, or inequality in the platform adjacent to defendant company's depot at Vernon, Tex.

Plaintiff alleged that he had secured a ticket as a passenger on defendant's train, then about due, and, while attempting to board the train, he fell into this hole and injured himself in the respects pleaded. He alleged negligence on the part of the defendant company, by reason of permitting its platform to be in a defective condition, and by reason of its failure to properly light said platform, so that he, as a passenger, might be able to see said hole or excavation. He sought a recovery in the sum of $5,050.

Defendant pleaded that it was not negligent in the respects claimed by plaintiff; that its platform was well lighted at the place where plaintiff claimed to have been injured; that if plaintiff had exercised ordinary care he could have seen any hole or depression at said place; and that the plaintiff was guilty of contributory negligence in not looking where he was stepping.

From a verdict and judgment in favor of plaintiff in the sum of $1,000, the defendant has appealed.

Appellant in its first assignment urges error in the action of the court in admitting the eleventh interrogatory and the answer thereto in the deposition of the witness S. H. Leake, a hotel keeper at Oklaunion, to which place the plaintiff went from Vernon on the night of his injury, and where he stopped at Leake's hotel and was nursed by Leake from the night of August 8, 1916, to September 4th following. The interrogatory propounded by plaintiff was:

"State fully the condition of Kidwell when you did treat him, and also state whether or not there was any evidence of pain and suffering during the time you were with him and treated him, and, if so, state what such evidences were."

To which the deponent witness answered:

"He seemed to be injured and suffering with his hip and ankle when he got to the hotel and suffered all the time he was there, as was evidenced by the fact that he could not walk and was always complaining of pain, and the expression about his face indicated the same thing. He complained especially when I treated him, and when he tried to move in bed."

The second assignment is directed to the question propounded and so much of the answer as begins with "He seemed to be injured," and closes with "was always complaining of pain." The objections noted in the two bills of exceptions directed to this alleged error show that counsel for defendant objected to the question and answer for the several reasons that the interrogatory calls for the conclusion of the witness; because a proper predicate had not been laid for the introduction of this testimony, and the witness was not an expert; because the answer called for a self-serving declaration of the plaintiff and was not part of the res gestæ, and was invading the province of the jury, and was not responsive, and "might be prejudicial."

Appellee urges that the two assignments should be overruled, for several reasons, one of which is that no motion was filed by the defendant to suppress the question and answer of which complaint is made, under article 3676, V. S. Texas Civil Statutes; and that the objections go to the form and manner of taking the deposition, and therefore, defendant cannot be heard at the time of offering testimony on the trial to urge its objections.

It is held in a long line of decisions that objection to the answers to interrogatories that they are not responsive must be made in writing and notice given before the trial. Lee v. Stowe, 57 Tex. 444; Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606; Parker v. Chancellor, 78 Tex. 524, 15 S. W. 157; and other cases cited in 6 Ency. Dig. of Texas Reports, p. 373.

As to the other objections urged, we think it is a sufficient answer that the defendant secured the personal presence of the witness Leake after the interrogatory and answer complained of had been introduced in evidence by plaintiff, and that the witness, without objection, testified in substance, to the same effect as he did in the answer of which complaint is made. Ry. Co. v. Eckles, 25 Tex. Civ. App. 179, 60 S. W. 831. Said witness testified, in part, as follows:

"When I first saw Kidwell he was on my front porch in a sitting or stooping position; I don't remember which. He pulled up by the door or screen to get into the house. The bannister is in the office, made like rails, and he pulled up by those to get upstairs. I put medicine on him for awhile and for the first two or three days, or five or six days, it seemed to pain him whenever I rubbed him. When I would try to move or rub his ankle for the first few days it would pain him, when I would try to put liniment on it. I have seen people suffer — not a great deal — and have noticed their countenance and appearance when suffering. When I would move Kidwell or rub him, apparently he seemed to be in pain. And when I would move his right leg at all, it would seem to pain him."

Furthermore, a witness named Geo. T. Sharpe, a farmer, and therefore not a medical expert, testified without objection that he took the plaintiff to Leake's hotel in his car and that plaintiff "was complaining and groaning all the while, and seemed to be suffering considerably with his foot and ankle." Moreover, it is well-recognized rule of evidence that a nonexpert witness may give an opinion when he also states the facts upon which his opinion is based. Ry. Co. v. Brune (Tex. Civ. App.) 181 S. W. 547; Taylor v. Jackson (Tex. Civ. App.) 180 S. W. 1142; McCabe v. S. A. Traction Co., 39 Tex. Civ. App. 614, 88 S. W. 387, affirmed in 101 Tex. 647; Turner v. Strange, 56 Tex. 141. We are of the opinion that these two assignments do not present material error, and they are hereby overruled.

In the third assignment complaint is made of the refusal of the court to instruct the jury that, if the light that would have shown upon the place where the plaintiff is alleged to have stepped into a hole and received his injury was obscured by "busses" or other rigs, then the defendant company would not be responsible for the light being thus shut off, and would not be guilty of negligence in failing to have that portion of its platform properly lighted at the time of the alleged injury. The evidence showed that there was a platform of brick, cement, or other such material around the depot building, and that the depression in which plaintiff claimed to have fallen was caused by the removal of or the absence of several bricks in the platform; that there was a small street light on a pole some 75 feet west of the depot and another street light some distance from the depot on the east. These lights seem to have been the only means of lighting the outside of the depot building and the platform. There was some evidence to the effect that at the time of this injury there were some "busses" or rigs standing on the west side of the depot. On cross-examination plaintiff testified:

"Yes; I think the light was about 30 or 40 yards west of the depot. Between the light west of the depot and the hole that I fell in there were some rigs standing out there. I do not know just how far it was from the hole to where the rigs were standing; and I do not know how far it was from the rigs up to the light. I could give no estimate of that distance. I do not know whether it is a fact or not that the busses and rigs were way up the track west of the depot, so as not to prevent the light shining on the hole, from the light west of the depot; owing to the distance, I could not say. I do not know of anything else that would prevent the light west of the depot shining on that hole except those rigs. Those rigs were vehicles of transfer people, I suppose, and I do not know how many there were. There was also a light at the corner down across the street, but I do not think that it would shine on this hole; if anything prevented it, it would be the corner of the depot — I do not know whether that did prevent it or not."

We do not think the evidence cited and relied on by appellant to...