Galloway v. San Antonio & G. Ry. Co.

• Decision Date: 23 December 1903
• Citation: 78 S.W. 32
• Parties: GALLOWAY v. SAN ANTONIO & G. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 32

GALLOWAY v. SAN ANTONIO & G. RY. CO.^*

Court of Civil Appeals of Texas.

December 23, 1903.

Appeal from District Court, Bexar County; S. J. Brooks, Special Judge.

Action by Joseph Galloway against the San Antonio & Gulf Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Will A. Morris, Geo. Powell, Perry J. Lewis, and H. C. Carter, for appellant. Denman, Franklin & McGown and Davis & Williams, for appellee.

JAMES, C. J.

The plaintiff, Galloway, alleged injuries resulting from slipping from a hand car, and falling in front thereof, through the failure of the brakeman to stop the car upon plaintiff's signal. Besides a general denial, defendant pleaded a release executed by plaintiff, and contributory negligence. By supplemental petition, plaintiff pleaded the invalidity of the release, because obtained by fraud, and because plaintiff was mentally incapable of executing a release. The verdict was for the defendant. There was evidence which required the case to be submitted upon the above issues; hence the contention that the testimony demanded the verdict (rendered in favor of defendant) cannot be sustained. Plaintiff testified that he was foreman, and was sitting at the front of the hand car, with a block under his thighs to keep his feet clear of the rails; that the car was going downhill, and the block slipped forward, and when he felt himself slipping forward he at once signaled the brakeman to stop, and then another signal to stop, neither of which was obeyed by the brakeman; and then he looked around to see if the brakeman was watching him, and saw that he was standing with his back half turned, talking to other men on the car; then the car ran about half a rail, when the block slipped out, and he fell, and was injured. There was evidence that the car ran about three or four rail lengths after plaintiff started to slip, and before he fell, and that the car could have been stopped in one rail length or less.

The fifth assignment of error alleges that the court erred in refusing to permit plaintiff's counsel to show by Mrs. Galloway that, at the time the release was signed, plaintiff was in such a condition that he was not conscious of what he was doing, as he could not recognize his friends, and that his head was hurt. It was shown that she was plaintiff's wife, and had been with him and nursed him since he was hurt. She was competent to testify as to his mental condition, provided she accompanied her opinion with the facts upon which she based it. Rogers, Exp. Test. pp. 157, 160; Gillett on Coll. Evid. § 214; Haney v. Clark, 65 Tex. 93; Ry. v. Brantley (Tex. Civ. App.) 62 S. W. 96. The evidence that was offered exhibited facts upon which she based her opinion, viz., that plaintiff's head was hurt, and he could not recognize his friends; and, in addition to this, her relationship to plaintiff, and her having attended him since his injury, made the testimony clearly admissible.

The assignments 7 to 11 complain of the rejection of testimony by witness C. D. Weedin which was to the effect that plaintiff was not in a physical and mental condition to transact business, that plaintiff seemed to be in very bad health, that since he had been out of the hospital he had not been capable of transacting business, that his mental and physical condition since he had been hurt had been very much impaired, and that his mental and physical condition was very much worse than before his injuries. The objection to all this testimony was that they were conclusions of the witness. It appeared that this witness had known plaintiff a long time before the injury, which happened on September 3, 1900, and had seen him frequently while at the hospital, and often since he left the hospital; the last time he visited him being on the 6th of October; the release being executed on the 8th of October. This witness testified to various facts occurring under his observation which indicated both physical and mental weakness of plaintiff. It seems to us clear, under the authorities, that the witness, though nonprofessional, was competent, in connection with what was shown by this witness, to state his opinion respecting plaintiff's condition as to health and mental capacity. See authorities supra. The testimony was not made irrelevant by the fact that the witness visited plaintiff the last time two nights before the release was signed.

For the above errors, or either of them, we think the judgment must be reversed.

There are other assignments of error, and it is proper for us to notice them, or some of them, at least, in view of another trial.

In reference to the first assignment, we think it would be in...