Fox v. Gulf, C. & S. F. Ry. Co.
|24 January 1935
|80 S.W.2d 1072
|FOX v. GULF, C. & S. F. RY. CO.
|Texas Court of Appeals
Chester H. Johnson, of Houston, for plaintiff in error.
Terry, Cavin & Mills and Rupert R. Harkrider, all of Galveston, for defendant in error.
This brief but correct general statement is taken from the defendant in error's brief:
In this court, through her first three propositions, the plaintiff in error assigns as prejudicial error the trial court's action as reflected from this bill of exceptions as qualified in the concluding paragraph:
he was asked this question by Mr. Scruggs, attorney for plaintiff:
As thus qualified, it is not thought this bill reflects any reversible error; in the first place, it seems plain that the trial court's remarks contained no intimation in favor of or against the credibility of the witness, nor any comment upon the weight of any evidence, but only a rebuke of a clearly unjustified insinuation by such counsel against the witness' credibility and integrity as a fair and truthful one—that is, the plain imputation in this concluding question, following the abrupt reference to his being employed at that time by the appellee railway company and knowing its general attorney, Mr. Wigley, mighty well, that he wanted Mr. Wigley to win this case in any event—whether or not the facts justified it; an examination of the long detailed testimony the witness had just been giving fails to disclose any justification for such an insinuation or imputation, his testimony as a witness for the appellee apparently reflecting no other than a purpose to state the facts as he knew them; not only so, but that examination further discloses at least some justification for the trial court's apparent impatience over the matter, such for instance as the same counsel's prolonged and repeated interrogation of this witness as to whether or not he had considered Jas. H. Fox a competent brakeman—during which he had asked him flatly whether he wanted to minimize Mr. Fox—whereupon the court stopped the pillorying on the ground that he had already asked the same thing two or three times; furthermore, the court then proceeded to properly charge the jury that they were the exclusive judges of the facts proved, the credibility of the witnesses, the weight to be given the testimony, but must get the law of the case from the court, and, further, this: "If any juror or jurors shall have any knowledge of any fact * * * or of any witness, outside of that gained by the testimony from the witness-stand, he will not communicate said knowledge to his fellow-jurors, nor take the same into consideration. * * *"
In the situation thus presented, not only was the control of the extent to which the cross-examination of this witness might properly go a matter largely within the discretion of the trial court (Horton v. Ry. Co., 46 Tex. Civ. App. 639, 103 S. W. 467), but the following declaration of our Supreme Court in Sabine & E. T. Railway Co. v. Brousard, 75 Tex. 597, 12 S. W. 1126, is thought to be applicable; "When the remarks are considered in connection with the evidence of the witness, and the subsequent charge of the court, by which the jury were told that they were the judges of the weight to be attached to the testimony, and that it was not the province of the court to pass on that question, or to express an opinion as to the value of the testimony admitted, but they were to be controlled by their own views, we do not think the jury could have been improperly influenced by the remarks."
Next is presented assignment No. II, the material part of which is this: "The court erred in commenting to the jury and in making the statement in the presence of the jury, while the plaintiff, Mrs. Fox, was on the witness stand as a witness, substantially to the effect that the witness ought to be able to specify some month and some occasion just what amount deceased gave her, the said plaintiff, which comment was upon the weight to be given to plaintiff's evidence and calculated to lead the jury to believe that the court doubted the credibility of said witness."
The comment thus specified was this:
The only exception taken to this statement of the court was that it went to the weight of the evidence; it was made while Mrs. Fox was testifying in her own behalf in response to questions of her counsel seeking to establish the measure of the damages she sustained from her son's death by showing what he might reasonably have been expected to contribute to her, had he lived; in answering such inquiries, she had testified that she could neither tell exactly how much her son had made, nor what specific amount he had contributed to her during the last year of his life; whereupon, her counsel then inquired whether or not he had been considerate of her, to which she replied:
On objection, the court instructed the jury not to consider that question or answer, and, in connection therewith, made this statement:
Then followed the first above-quoted remark that is made the basis of this assignment.
Properly construed and considered in connection with the court's appropriate and proper instructions touching the credibility of the witnesses and the weight to be given their testimony, which has been quoted, supra, this court is of opinion that the remarks here criticized as being a comment by the court on the weight of the evidence cannot be reasonably held to have any such harmful effect; rather it would seem to have been a legitimate effort to hold the examination down to proper rules looking toward establishment in fact of what the mother's monetary damage had been by the loss of her son, rather than to permit her to speculate in...
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