Louisiana Ry. & Nav. Co. v. Cotton

• Court: Texas Court of Appeals
• Writing for the Court: Vaughan
• Citation: Louisiana Ry. & Nav. Co. v. Cotton, 1 S.W.2d 393 (Tex. App. 1927)
• Decision Date: 19 November 1927
• Docket Number: (No. 10085.)
• Parties: LOUISIANA RY. & NAV. CO. OF TEXAS v. COTTON.

1 S.W.2d 393

LOUISIANA RY. & NAV. CO. OF TEXAS v. COTTON.

(No. 10085.)

Court of Civil Appeals of Texas. Dallas.

November 19, 1927.

Appeal from District Court, Hunt County; Newman Philips, Judge.

Action by Willie Cotton against the Louisiana Railway & Navigation Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

B. M. McMahan, of Greenville, and Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

H. L. Carpenter, of Greenville, for appellee.

VAUGHAN, J.

Appellee, Willie Cotton, a feme sole, instituted this suit in the court below to recover from appellant, Louisiana Railway & Navigation Company of Texas, a corporation, $5,000 in damages actually sustained and $2,000 in damages to accrue, all of which damages were alleged to have resulted to appellee from injuries received in a collision between one of appellant's trains and an automobile in which appellee was riding in Greenville, Tex., November 1, 1925, as a guest of one George Ponder, not a party to this suit.

Appellant answered by pleas of general demurrer and denial and contributory negligence.

The cause was submitted to the jury on the general issue. Trial was had January 4, 1927, which resulted in a verdict and judgment for appellee in the sum of $1,000, from which appellant duly prosecuted this appeal. As to the situation at the scene of the accident, the evidence revealed the following:

Appellant's tracks run practically east and west at the place of the accident. Johnson street runs north and south, crossing said tracks at right angles. East of Johnson street one block, and parallel therewith, is Stuart street, and east of that street about two blocks is a St. Louis & Southwestern Railroad crossing over appellant's track, and considerably further east is a Texas Midland Railway track over said appellant's track. West of Johnson street one block, and parallel therewith, is Stonewall street. The blocks between said streets are about 220 feet wide. North of appellant's main line, and immediately east of and adjoining Johnson street, is a building occupied by Waples-Platter Grocery Company, and between that building and said main track are two switch tracks, one adjoining and north of the main track, and the other adjoining and south of said grocery building. Between said switch tracks there are located a coal office, coalhouse and scales, a large signboard, and a fence. At the time of the collision, the switch track next to the grocery building had a box car standing on and extending to the line of the sidewalk, and there were three to six box cars on the switch track next to the main line.

The issues submitted to the jury as to appellant's negligence were: First, excessive speed of the train; second, failure to sound whistle; third, failure to ring the bell. As to appellee, her own contributory negligence in failing to discover the approach of the train; to hear and note the signals, if any, that were given as to the approach of said train, and her acquiescence in or assenting to Ponder's negligent operation of the Ford coupé.

Although not presented in the natural sequence of the assignments of error on which appellant's propositions are based, we will, in our discussion of the case, follow the order in which appellant's propositions have been presented in its brief.

By its first proposition, appellant contends that:

"Having duly excepted to the charge of the court because it failed to limit to impeachment purposes solely the testimony of three jurors in a former trial of this cause, namely, Barber, Gregory, and McGee, introduced to impeach the testimony of appellant's witness, and Engineer Rowell, and appellant having further specially requested a charge in point, the trial court erred to the prejudice of appellant in ignoring said exception and refusing said requested charge, because the said impeaching evidence was not admissible, and could not be considered by the jury in determining other issues involved in the case."

Countering said proposition, it is contended by appellee that:

"Where the party calling a witness has vouched for or adopted his former testimony by having called said witness and offered his testimony at such former trial, then proof of such former testimony of the witness is admissible in the instant trial against said party calling him as original testimony."

On the last trial of this cause, said Rowell, in reference to the place of the collision, testified as follows:

"In backing the engine up like it was being operated that night, I was on the south side of the engine, the south side going west. I did not see the approaching automobile. I did get a stop signal. I got it from the foreman, Mr. Stephens. He was on the south end of the rear footboard on the west end of the tender and on the south side. When I got that signal, we had the street covered. The rear end of the tender was at the edge of the walk, or on the walk on the west side of the street."

Appellant adduced the testimony of W. H. Barber, C. G. Gregory, and George McGee, three of the jurors on the former trial of this cause, as to the testimony of said Rowell at said trial, each in effect testifying that he heard the Engineer Rowell testify at said trial, and that at that time he testified that just after the engine and tender — the footboard of the tender where the switch crew was standing — approached or reached the sidewalk on the east side of Johnson street, he got a signal from a watchman on the footboard to stop, and that he put his brakes into emergency to stop.

The facts testified to by the witness Rowell on the former trial, as shown by the testimony of said three former jurors, were material, likewise the testimony of said witness, Rowell, at the last trial, to the defense urged by appellant to appellee's cause of action. The question for us to decide is whether or not the testimony of said three former jurors should have been limited, as requested by appellant in its special charge, to be considered by the jury for impeachment purposes only of the witness Rowell, or whether or not, as contended by appellee, the testimony of said three former jurors, being in reference to a specific material fact, was properly admitted as original testimony against appellant on the ground that, by offering the testimony of the witness Rowell on the former trial, as testified to by said former jurors, same was an admission by or a declaration against the interest of appellant, under the circumstances, that same was introduced so as to make same admissible as original testimony not conclusive as to the facts testified to, but to be received by the jury and given such probative effect as in their judgment same might be entitled to. Appellee's counter-proposition embraces the full spirit and purport of the holding announced in Richards v. Morgan, 10 Jur. (N. S.) 559, 564, decided in 1864, opinion by Cockburn, L. C. J. In reference to this particular question, the learned judge made the following observations:

"In principle, there can be no difference whether the assertion or admission be made by the party sworn to be affected against himself or by some one employed, directed, or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purpose of asserting or proving some fact on his behalf, whether in a court of justice or otherwise, must be taken himself to assert the fact which he thus seeks to establish. * * * Where a witness is called for the purpose of proving a particular fact, this amounts to an assertion of that fact by the party who so uses his testimony. And in this respect, I must observe that I can see no difference between written and oral testimony. For while I concur in the position that the evidence of a witness called on a trial is not necessarily nor to the full extent to which it may go admissible against the party calling him in a future proceeding, yet if it can be shown that the witness was called to prove a specific fact, it appears to me that this would be admissible as an assertion of such fact by the party calling the witness. * * * Bearing in mind that the true ground on which such evidence is admissible is that a party seeking to establish a fact by evidence in a court of justice must be taken (in that litigation) to assert the fact he so seeks to prove. It seems to me to follow on the one hand that oral evidence, so far as it shall appear to have been used to establish a specific fact will (in subsequent litigation) be evidence against the party using it as an assertion of that fact, and on the other, that written evidence will be admissible against the party using it in a subsequent proceeding with a different party, not for the purpose of proving all the statements it may contain, but only so far as it shall appear to have been used to establish a given fact or facts."

Along the same lines of reasoning is the opinion rendered by Denman, L. C. J. (1837), in Brickell v. Hulse, 7 Adol. & El. 454, 456. The only case that has been called to our attention, or which we have been able to discover through our own research, adopting the rule announced in Richards v. Morgan, supra, by any of the courts of this country, is the case of Knapp v. Brotherhood of American Yeomen, by the Supreme Court of Iowa (May 12, 1910), 149 Iowa, 137, 126 N. W. 336. In support of this holding in that case, the following reported cases are cited: Richards v. Morgan, 10 Jur. (N. S.) 559 (Eng.); Bageard v. Consolidated Traction Co., 64 N. J. Law, 316, 45 A. 620, 49 L. R. A. 424, 81 Am. St. Rep. 498; Becker v. Philadelphia, 217 Pa. 344, 66 A. 564.

In the case of Richards v. Morgan, supra, also reported in 4 Best & Smith's Report, 641, the question involved was not founded upon oral testimony, but the written depositions of a witness, whose testimony was offered by one of the parties to that suit, who was not a party to the original suit in which...