Galveston, H. & S. A. Ry. Co. v. White

• Decision Date: 30 October 1919
• Docket Number: (No. 1011.)
• Citation: 216 S.W. 265
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & S. A. RY. CO. v. WHITE.

216 S.W. 265

GALVESTON, H. & S. A. RY. CO. v. WHITE.

(No. 1011.)

Court of Civil Appeals of Texas. El Paso.

October 30, 1919.

Rehearing Denied November 20, 1919.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Olan Washington White against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Beall, Kemp & Nagle, of El Paso, for appellant.

M. W. Stanton, McKenzie & Loose, and Hudspeth & Harper, all of El Paso, for appellee.

WALTHALL, J.

Appellee, Olan Washington White, brought this suit against appellant, Galveston, Harrisburg & San Antonio Railway Company, to recover damages for personal injuries alleged to have been sustained by him on account of negligence of the appellant, while working for appellant as a switchman in its yards at El Paso, Tex.

Appellee alleged that on July 28, 1917, while he was attempting to descend from one of appellant's box cars, the handhold or grabiron, one of the appliances placed and used by appellant on the side of its box cars to assist in descending from the car, pulled off, or became detached from the side of the car, and that by reason thereof he was thrown down and received the injury of which he complained.

On the issues submitted the jury found in favor of appellee, and assessed his damages at $11,000, and judgment was so entered.

Appellant's first and second assignments complain of the admission of the evidence of witnesses Ramsey and Jones. The objection made to the admission of the evidence of each of the witnesses is substantially that it is speculative merely, and the expression of the opinion of one who is not shown to be a physician or surgeon, or an expert on anatomy or physical condition.

Ramsey testified in part:

In 1917 he was working for the Southwestern. He knew White at that time. White went to work on the engine with him. Did not know where White lived when he first knew him. Visited White the following Sunday after White was injured. He then saw that White was bleeding at the left ear. He sat down alongside of the bed. Noticed nothing else about his head; noticed nothing that indicated his mental condition. His appearance was "like a man that was pretty badly hurt." Was acquainted with White before the accident and had occasion to observe his appearance. "Noticed lots of difference" in his appearance before the injury and afterwards. "He wasn't like a man that was at himself. I talked to him very little. As to his appearance prior to his injuries with reference to strength and activity, his appearance was good; he was a large man, and his appearance as to health good. I have seen Mr. White since that time occasionally when I came in. As to his appearance now with reference to size and flesh as to what it was prior to his injuries, he is not at all the same man that he was when I first met him when he worked in the Southwestern." Met White once in the summer of 1918 before he had the operation performed. "As to his physical appearance at that time, I thought he was very poor. As to what I meant by that, he had fallen away in weight, and he walked around like a man that was all in, I would judge. As to his appearance prior to his injuries with reference to whether he was an active man, slow or quick, he was active."

Jones testified that—

He became acquainted with White in 1907 in Wichita Falls; knew him there about three years. Did barber work for him during that time. Witness came to El Paso in 1916, and saw White in El Paso in 1917. In Wichita Falls witness had occasion to observe White as to appearance in weight and physical condition; noticed "that he was a big, husky guy." In June, 1917, in El Paso, prior to his injuries, as to his physical condition, "he appeared to be in the same condition that he did when he lived at Wichita Falls. As to what he weighed when I first became acquainted with him, I figure he would weigh somewhere in the neighborhood of 165 pounds. I have seen him a number of times since the time he claimed to have received his injuries. As to his appearance now with reference to his physical condition, he doesn't appear to be the same man that he was before. He doesn't look to be as heavy as he was before. As to his movements and his general condition in regard to health, he doesn't move as brisk as he did before; he doesn't seem to have the energy that he did before."

We think the evidence of the witnesses is not subject to the objections offered. The witnesses each knew White and saw him just before and just after his injuries, and the evidence given is their personal observations of outward manifestations of condition open to all who came in contact with appellee subsequent to his injuries, and we think competent as showing White's physical condition at that time. Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W. 455, in which a writ of error was refused; Railway v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010.

Appellant's third, fourth, fifth, and sixth assignments are directed to remarks of counsel made to and in the presence and hearing of the jury during, and as a part of, the argument to the jury. Appellant assigns the remarks as harmful and prejudicial error.

One of appellee's attorneys in his argument, referring to appellee, said; "He is a man without means and with a family." Again, same counsel, referring to appellee, said:

"It appears from the uncontroverted evidence in this case, gentlemen of the jury, that he was working because he had to. I tell you, necessity knows no law. The man worked because he had to. We all have to work because we have to. We have to earn a living. We have to do it in some way and do it honestly."

It might be observed here that no issue was made in the case as to whether appellee was a man with or without means, nor was it an issue in the case that appellee was working because he had to. It is claimed by appellee that the remarks were rendered proper by reason of certain evidence introduced by appellant. On cross-examination of appellee he stated that he signed a name other than his own to an application for employment, and on redirect examination, in explanation why he did so sign the application, he said:

"When a fellow is having litigation with a railroad company he can't get work. I have to support my wife and baby and that is the only means I had to get employment was to work under an assumed name. * * * I have no means or resource to support my wife, baby, and myself. * * * I had no means of support, and I followed this railroad work practically all my life, and I had no other way of making a living for my family, and that is the reason that I made these false statements in the application, in order to get employment."

The question as to the admissibility of the evidence offered, as to the application or the statements contained therein as primary or original evidence, is not before us; nor is the above-quoted evidence of appellee in explanation thereof. It...