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

• Decision Date: 26 February 1894
• Citation: 25 S.W. 406
• Parties: GALVESTON, H. & S. A. RY. CO. v. DUELM.
• Court: Texas Supreme Court

25 S.W. 406

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

Supreme Court of Texas.

February 26, 1894.

Error from court of civil appeals of second supreme judicial district.

Action by Fredric Duelm against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries. A judgment for plaintiff was affirmed by the court of appeals, (23 S. W. 596,) and defendant brings error. Affirmed.

Upson & Bergstrom, for plaintiff in error. Ireland, Burges & Dibrell and John P. White, for defendant in error.

GAINES, J.

Fredric Duelm, the defendant in error, brought this suit against the Galveston, Harrisburg & San Antonio Railway Company, the plaintiff in error, to recover damages for personal injuries. He obtained a judgment in the trial court, which was affirmed, upon appeal, by the court of civil appeals. This writ of error is sued out for the purpose of reversing the judgment.

The injuries complained of were the result of a collision at a crossing of the railroad and a public highway between a train of the defendant company and a wagon of the plaintiff, in which he was riding. The ground of action, as alleged in the petition, was the failure to ring the bell or blow the whistle upon approaching the crossing. The evidence upon the main issue was conflicting. The plaintiff testified, in effect, that as he approached the railroad he stopped his wagon, and looked and listened, but he neither heard the train, nor saw it, until he got upon the track. He also swore that, if the bell had been rung or the whistle blown, he could have heard it. In these particulars he was corroborated by his daughter, who was riding in the wagon with her father, when the accident occurred. The plaintiff, at the time of the collision, was going south. Three persons, who were going north, and who casually witnessed the collision, and were seemingly disinterested, testified that no signals were given of the approach of the train before the plaintiff drove upon the track. Two passengers who were upon the train gave evidence to the same effect. On behalf of the defendant, eight witnesses testified that the signals were given. One of these was a passenger; another, a section foreman; another, the mail agent; and the others were the employes of the defendant who were engaged in operating the train. Some of these swore most positively to the fact that the whistle was blown and that the bell was rung. For a considerable distance before reaching the crossing, the train ran through a deep cut. Upon the question whether the plaintiff could have seen the train, there was a like conflict in the testimony. The plaintiff was thrown from his wagon by the collision, and his leg was broken in two places, so that the bone protruded. He underwent, at different times, three amputations of the broken limb. There was direct testimony that his sufferings were very great and long continued, and he testified that he thought his doctor's bill would amount to $1,000, and that in his opinion his bill for medicines would be about $500. The verdict of the jury was for $9,000. In course of the trial the defendant placed upon the stand, as its own witness, S. N. Garvey, the engineer, who was in charge of the train at the time of the accident, and, among others, propounded to him the following question: "From your knowledge and experience as an engineer, was it possible to have stopped the train after you saw plaintiff, in his wagon, coming on the track at the crossing, and prevented a collision with it?" Objection having been made on behalf of the plaintiff, the court refused to permit the witness to answer the question. The court's ruling was correct. The brief of counsel would lead us to infer that the objection was based solely upon the ground that the question "elicited a mere opinion of the witness, and did not call for any fact," but the bill of exception shows that it was also objected to upon the ground that it was leading. This objection was well taken. The question admitted of an answer "Yes" or "No," and not only suggested the negative response, but was calculated to put in the mouth of the witness the very words of the examining counsel. After the objection the question should have been so framed as to have permitted the witness to state the fact, or rather his opinion as to the fact, in his own way. The materiality of the testimony which was sought to be introduced by the question, we need not discuss.

In connection with this matter, it is also urged that the court, after having excluded this testimony, erred in permitting the plaintiff's counsel, over the objection of the defendant, to urge before the jury, in the opening argument, that no effort was made by the servants of the company to halt the train after they disc...