Hardin v. Ft. Worth & D. C. Ry. Co.
| Decision Date | 08 February 1908 |
| Parties | HARDIN v. FT. WORTH & D. C. RY. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Clay County; A. H. Carrigan, Judge.
Action by A. D. Hardin against the Ft. Worth & Denver City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.
L. C. Barrett, J. A. Templeton, P. M. Stine, and G. A. Watts, for appellant. Spoonts, Thompson & Barwise and R. E. Taylor, for appellee.
For the fourth time this case is before us on appeal. The former judgments were reversed on account of errors in the charge of the court, as will be seen from the case as reported in 33 Tex. Civ. App. 448, 77 S. W. 431, 90 S. W. 679, and 100 S. W. 995. The charge is again complained of, but we doubt if the objections urged to the last charge would warrant a reversal of the judgment, though in stating the degree of care which appellee owed appellant, in the second paragraph, the court uses the rather indefinite expression "a high degree of care," instead of a very high degree of care, or the highest degree of care. Also, in the fourth paragraph of the charge, the court instructed the jury that, if under the testimony there was any difference in the safety to the passenger of freight train transportation and transportation on passenger trains, appellant assumed such increased hazard or risk incident to his transportation on a freight train. This, we think, was at least inappropriate, and should have been omitted. Further than this we do not care to discuss the charge, since our views have been sufficiently expressed on that subject in the previous opinions.
Without, however, determining whether the objections to the charge above pointed out would require the judgment to be reversed, we are constrained to hold that the following rulings on the admission of testimony must have that effect: The appellee was permitted to prove, over the objections of appellant, that appellant was prosecuting this suit on a pauper's affidavit, and that his son-in-law had refused to go on his bond for costs. This evidence was clearly irrelevant, and could only have had the desired effect of placing appellant before the jury in an unfavorable light, to say the least of it. Appellee seeks in different ways to avoid the force of the ruling; but, without undertaking to discuss the matter in detail, we think that the proceeding complained of, as set forth in the record, had a tendency to deprive appellant of a fair hearing before the jury.
We are also of opinion that appellee should not have been permitted to prove that it had a rule which was in force requiring the train crew to report the case of a man who had got hurt on the train, and that it would go hard with the crew who did not do this. The answer to the assignment complaining of the admission of this testimony is...
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