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

• Decision Date: 10 April 1901
• Citation: 62 S.W. 808
• Parties: GALVESTON, H. & S. A. RY. CO. v. WILLIAMS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

62 S.W. 808

GALVESTON, H. & S. A. RY. CO. v. WILLIAMS.¹

Court of Civil Appeals of Texas.

April 10, 1901.

Appeal from district court, Medina county; I. L. Martin, Judge.

Action by T. A. Williams against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett, John R. Storms, and Walter Gillis, for appellant. Ed. De Montel, S. B. Easley, H. C. Carter, and Perry J. Lewis, for appellee.

JAMES, C. J.

Plaintiff alleged that in performing his duties as fireman on one of defendant's engines, and while in the act of going out to the front of the locomotive, along the running board, to close the headlight-house door, which had come open while the locomotive was running, he placed his foot upon the step provided for the purpose of reaching the headlight, and, while attempting to close the headlight-house door, this step, by reason of its being in a defective and unsafe condition, turned and caused him to be thrown with great violence to the pilot of the engine, and seriously and permanently injuring him. The negligence on the part of defendant charged was permitting said step to become loose and liable to turn when used as intended by being stepped on. Defendant pleaded a general denial, and assumed risk and contributory negligence, in that the defective condition of the step, if any, was open, apparent, and well known to plaintiff, or would have been known to him by the exercise of ordinary care on his part; that, when plaintiff undertook to close the door of the headlight house, the engine was running at a high rate of speed, rendering the attempt dangerous. The verdict in favor of plaintiff is for $12,000. As conclusions from the evidence in the record, in view of the verdict, we find that defendant was negligent in reference to the step, which negligence caused the injury, and that the risk was not one which, under the testimony, plaintiff assumed, nor was he chargeable with contributory negligence.

The first assignment is that the court erred in permitting Dr. Caffery to testify that, in his opinion, the present condition of plaintiff's lungs was due to some violence from without, or it, in other words, was due to some injury inflicted from the outside, for the reason that this was the question for the jury to determine from all the evidence, and was not such a fact or conclusion that a witness, as an expert, could testify about. The assignment practically concedes that the witness was an expert in such matters. The answer was proper expert testimony.

The facts relative to the second assignment are that appellant filed interrogatories to several witnesses, which were crossed by plaintiff. The depositions of these witnesses were taken upon these interrogatories and cross interrogatories at the instance of plaintiff, appellant having failed to sue out a commission. At the trial plaintiff read the depositions in his own behalf over objections to answers to the cross interrogatories upon the ground that the cross interrogatories were leading. The assignment cannot be sustained, for the reason that such an objection must be made before the trial, if the deposition is filed more than one day before the case is called for trial; and, in the absence of any showing on this subject, the presumption is in favor of facts that sustain the ruling. It is unnecessary to undertake to state any further reason.

The third assignment is that the court erred in allowing plaintiff's counsel to ask plaintiff, as a witness, after defendant's application for continuance had been handed him, and his attention called to the amounts which defendant had alleged therein would be testified to by one Hansden, if present, as the earnings of plaintiff for the time therein specified, "whether or not the amounts...