Green v. Texas & Pacific Ry. Co.

• Decision Date: 05 May 1932
• Docket Number: No. 4174.,4174.
• Citation: 50 S.W.2d 353
• Parties: GREEN v. TEXAS & PACIFIC RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W.2d 353

GREEN v. TEXAS & PACIFIC RY. CO.^*

No. 4174.

Court of Civil Appeals of Texas. Texarkana.

May 5, 1932.

Rehearing Denied June 2, 1932.

Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.

Action by L. R. Green against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

In his petition, appellant, who was the plaintiff in the court below, alleged that on the night of July 24, 1930, in Big Springs, Tex., he was injured in his person as a result of actionable negligence on the part of appellee. Testifying as a witness in his own behalf as to the circumstances of the accident, appellant said he was walking on a public street in Big Springs and stopped seven or eight feet from the track of appellee's line of railway, where same crossed the street, to wait for one of appellee's trains to pass over the crossing; that while waiting he put his right foot on a post three or four feet high; that as the train passed, in changing his position, he caught one of his feet under a piece of iron extending onto the street from appellee's right of way, and, stumbling, fell backwards toward the moving train; and that the next thing he knew he "was under the train," which passed over and so injured his left arm as to necessitate its amputation. In his said petition appellant alleged that appellee owned the piece of railroad iron, and was guilty of negligence in permitting it to be on its right of way and to extend as it did onto the street. The case was submitted to the jury in a general charge, and they returned a verdict for appellee. The appeal is from a judgment in accordance with the verdict.

Jones & Jones, of Marshall, for appellant.

King, Mahaffey, Wheeler & Bryson, of Texarkana, for appellee.

WILLSON, C. J. (after stating the case as above).

In support of a theory entertained by appellee that the injury appellant suffered was intentionally brought about by him and was not the result of negligence of any kind on its part, appellee, in its cross-examination of appellant, who testified as a witness in his own behalf, was permitted to prove, over appellant's objection on the ground that such testimony was immaterial and irrelevant, that he (appellant) had collected $7,400 from accident insurance companies on account of the injury he suffered. It is insisted the evidence was inadmissible and that in admitting it, in afterward refusing a requested special charge which, had it been given, would have instructed the jury not to consider the testimony, and in authorizing the jury in his main charge to find for appellee if they believed appellant purposely fell against the train and injured himself, the trial court committed errors entitling him to a reversal of the judgment. The writer thinks the evidence, in the absence, as was the case, as he sees it, of corroborative testimony of probative force, did not make a question as to whether appellant intentionally brought about the injury he suffered, and that the trial court therfore erred when in his charge he authorized the jury to find for appellee on the contingency stated. But the other members of the court think the rulings complained of were not erroneous. Therefore the assignments presenting the matters referred to for review are overruled.

In his charge the trial court instructed the jury to find for a...