Miller v. Freeman

• Decision Date: 06 April 1910
• Citation: 127 S.W. 302
• Parties: MILLER v. FREEMAN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

127 S.W. 302

MILLER v. FREEMAN.^†

Court of Civil Appeals of Texas.

April 6, 1910.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by Robert H. Miller against T. J. Freeman, receiver. Judgment for defendant, and plaintiff appeals. Affirmed.

Dowell & Dowell, for appellant. S. R. Fisher, S. W. Fisher, and King & Morris, for appellee.

RICE, J.

This suit was brought by appellant against appellee, as receiver of the International & Great Northern Railroad Company, to recover damages for personal injuries sustained by him, as he alleges, while crossing a stile, which it is claimed appellee had erected for pedestrians over its right of way fence at a point where the same intersects West Tenth street in the city of Austin. The negligence alleged consisted, first, in erecting a fence and stile in said street; and, second, in failing to maintain and keep said stile in good repair. Defendant interposed a general demurrer and general denial, and pleaded contributory negligence on the part of plaintiff; and, further, that if he received any injuries same were aggravated by his failure or refusal to secure prompt medical attention. There was a jury trial, resulting in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The first, second, and fifth assignments of error complain of the action of the court in permitting appellee, on cross-examination of plaintiff, to show by him that at the time of the accident he had several accident policies, contending that such evidence was irrelevant and immaterial. We are inclined to think that this evidence was admissible for the purpose of affecting the weight to be given to the testimony of the appellant. See Wentworth v. Crawford, 11 Tex. 133; Stevens v. State, 7 Tex. App. 41; Freedman v. Bonner, 40 S. W. 47; Jones on the Law of Evidence, vol. 3, § 826; 1 Greenl. Evid. § 446. A wide latitude is given on cross-examination, and the extent to which parties may carry the same with reference to an inquiry into the feelings, motives, interests, and prejudices of a witness is very largely confided to the discretion of the trial court. We think in this instance that the discretion was not abused, but that the inquiry was pertinent, and therefore overrule these assignments.

A deed executed by Mrs. Martin conveying the right of way at the point in question to the International & Great Northern Railroad Company was offered in evidence by appellee. Appellant objected to its introduction, first, that the same was irrelevant and immaterial; that the same was not set up as a defense in the case by proper pleadings; that the absence of the original was not accounted for so as to authorize the admission of a certified copy of the deed; that the execution of the original had not been proven up, as required by law, and that the same had not been filed with the papers of the case for three days before the trial and notice thereof given to him, all of which objections were overruled. Appended to the bill of exceptions taken to the admission of this deed is the following explanation on the part of the court: "The deed referred to had, when admitted in evidence over plaintiff's objection, been shown by other evidence to be the deed conveying to the International & Great Northern Railroad Co. a portion of its right of way, including the place of the alleged accident to plaintiff, and it had been further proved that the defendant and his predecessor, the International & Great Northern Railroad Company, at the time of said accident, had held said portion of said right of way under said deed for more than 20 years." The original deed is shown to have been lost, and the evidence offered, being merely collateral to the inquiry under investigation, we think, in view of the explanation of...