H. & T. C. R'Y Co. v. Larkin

• Decision Date: 26 June 1885
• Docket Number: Case No. 5596.
• Court: Texas Supreme Court
• Parties: H. & T. C. R'Y CO. v. WILLIAM LARKIN.

64 Tex. 454

H. & T. C. R'Y CO.

v.WILLIAM LARKIN.

Case No. 5596.

Supreme Court of Texas.

Jun. 26, 1885.

APPEAL from McLennan. Tried below before the Hon. B. W. Rimes.

Appellee instituted this suit in the district court of McLennan county to recover damages for personal injuries alleged to have been received by him as the result of alleged defective machinery of a hand-car. Appellee was, at the time of the happening of the accident in which he alleged that he received the injuries, in the employ of appellant as a section hand, and while in such employ, he with some thirteen or fourteen other section hands composing the section gang, were going to work upon the section upon which they were employed in the afternoon, riding upon the hand-car used for the transportation of section hands and their tools. While so traveling over appellant's road the car received a jar or jolt that threw appellee, who was sitting on the front of the car, forward upon the track, and he thereby received the injuries for which he sued. Appellee alleged that the accident was caused by defective cogs in the car-wheels constituting a part of the propelling apparatus. The appellee's thigh was broken and his hip broken and crushed so as to render him a cripple for life, being unable to walk without crutches.

It was not denied on the trial below that there was an accident or that appellee was injured. The case was brought up on exceptions to appellee's pleadings, evidence, the charge of the court, argument of counsel for appellee on the trial of the case, and the insufficiency of the evidence to establish a liability against appellant.

Judgment was rendered on the 25th of June, 1884, against appellant for the sum of $5,000.

The assignments of error were as follows:

1st. The court erred in overruling defendant's motion for a new trial because the depositions of the witness W. H. Larkin were allowed to be read in evidence before the jury.

13th. The court erred in overruling defendant's motion to suppress the depositions of the witness W. H. Larkin, as set forth particularly in defendant's bill of exceptions relating thereto. 2d. The remarks of plaintiff's counsel to the jury in his closing argument, as set forth in defendant's exceptions thereto, were improper and calculated to mislead the jury, and to prejudice the defendant.

3d. The evidence was insufficient to support the verdict, and did not show that the accident was caused by defective cog-wheels as alleged in the petition, or that defendant was in any way or degree negligent in providing or keeping in repair the machinery by which it is alleged the accident was caused, but it does appear that the defendant had used all due care in that regard; that if any defect existed, defendant was ignorant thereof, and under the evidence not liable therefor, and the plaintiff had reasonable opportuntiy to inform himself thereof.

4th. There was no evidence before the jury which warranted the finding that the machinery of the hand-car was in fact defective, and the verdict of the jury was contrary to the overwhelming weight of the evidence in that regard.

5th. The court erred in giving the jury the charge asked by the plaintiff as set forth in defendant's bill of exceptions thereto.

9th. The court erred in refusing charge number one, asked by defendant, because such charge was material in defining who were fellow-servants of plaintiff, and in reference to defendant's duty in regard to the hand-car.

14th. The court erred in overruling defendant's motion for a new trial.

15th. The court erred in charging the jury that defendant would be liable if, by the exercise of “proper” care and diligence, defendant could have known of the deficiency of said cog-wheels, because the charge does nor define what is “““proper” care.

Alexander & Winter, for appellant, that the depositions should have been suppressed, cited: Gresley's Eq. Ev., pp. 78 and 149; H. & T. C. Railway Co. v. Shirley, 54 Tex., 143, 149.

That the remarks of counsel, shown in the opinion, should have caused a new trial, they cited: Rules District Court, No. 39; Willis v. McNeill, 57 Tex., 475; Texas & St. Louis R'y v. Jarrell, 2 Tex. L. Rev., 237; 3 Tex. L. R., 172; W. & W. Dig., sec. 1001.

That emphasizing by repetition the same charge prejudiced their case, and entitled them to a new trial, they cited: Powell v. Messer, 18 Tex., 406;Frisby v. Withers, 61 Tex., 142;Traylor v. Townsend, Id., 145;Railway v. Ormond, 62 Tex., 277.

Thos. Harrison, for appellee.

WALKER, P. J. COM. APP.

The objections to the certificate of the notary public taking the depositions are not well taken. The certificate, taken together with the caption which preceded the answers taken by the officer in question, must be considered together as a part of the officer's certificate, and if it appears from the whole that the statute has been substantially complied with, that shall be deemed sufficient. Carroll v. Welch, 26 Tex., 147. The caption identified the case by its style (although the corporate name of the defendant was abbreviated), and also by the number of the cause, and the court in which it was pending. No technical form of certificate is prescribed by the statute. A substantial though not a literal compliance with the directions of the statute is sufficient. Ballard v. Perry, 28 Tex., 347. It reasonably appears that the depositions were taken in McLennan county. The certificate is headed “The State of Texas, County of McLennan.” The commission is directed to the proper officers of that county. The notary taking the depositions describes himself as a notary public of that county, and affixes to it his official seal. It will be presumed from these facts that the act in question was performed by him in the usual course of his official functions exercised in that county.

A formal and direct certificate of the specific fact that the depositions were taken in McLennan county is not required by the statute, and it appears from the certificate and commission, prima facie, that the commission was executed by the notary in that county.

In so far as the sixth interrogatory called for the mere opinion of the witness as to what caused the alleged disaster, as distinguished from a question asking him to state the facts that occurred in connection with, and which may have caused it, it was, in that form, objectionable. The same observations apply to the seventh answer.

Appellant moved to suppress the sixth interrogatory so far as the same calls for an answer from the witness as to the cause of the alleged accident, because it seeks merely the opinion or conclusion of the witness, and also to suppress the answer thereto, because, so far as the answer relates to the nature of the alleged disaster, it is not responsive, and so far as he testifies as to the cause, he states his own opinion or conclusion only.

The sixth interrogatory requires the witness to state the nature and extent of the alleged disaster, and the cause of it, and to state and describe the thing that caused it. The answer is: “The nature of the disaster was the breakage of the machinery of a hand-car, which disabled the car temporarily, and it was caused by the cogs of the cog-wheels not working properly. The cause of the disaster was defective machinery and the breaking of the cogs on the cog-wheels which are a part of the driving apparatus of the hand-car--these cogs on these cog-wheels sometimes worked too tight, and sometimes too loose.”

Appellant also moved to suppress the answer of the witness to the seventh interrogatory, because given in response to an illegal interrogatory, the interrogatory being based upon the answer to the sixth interrogatory, and also because the answer states conclusions of the witness as to defects, and because irresponsive and irrelevant.

The interrogatory is, “if you say the disaster was caused by defective machinery of hand-car, please describe the machinery, its location, and its use. State fully the nature and extent of the defect in machinery. State your means of knowledge.”

To this the witness answered that the machinery was located under the bottom of the car floor. “There are two cog-wheels--one on the axle of the car-wheel, and one on a bar to which the lever is attached. These two cog-wheels work together and, with the lever, are the driving apparatus of the hand-car. The defect was that these cogs were not properly fitted to each other, but sometimes worked too loose. My means of knowledge were, that at the time of the disaster I was standing at or near the front of the car, which was loaded with laborers; the car was moving of itself on a medium down grade. I heard a crash from under the car like iron breaking and felt a jerk like stopping the car, and I was jerked towards the front end of the car, but caught the lever handles, and, with the help of others, stopped the car. I immediately looked under the car, and saw three or four of the cogs of the cog-wheel on the car axle were broken off. I had examined the driving apparatus of the car just before it left the section house, and the cog-wheels were not then broken.”

Appellant...