Missouri, K. & T. Ry. Co. of Texas v. Rose

• Decision Date: 15 October 1898
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Rose, 49 S.W. 133, 19 Tex. Civ. App. 470 (Tex. App. 1898)
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROSE.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 133

MISSOURI, K. & T. RY. CO. OF TEXAS v. ROSE.¹

Court of Civil Appeals of Texas.

October 15, 1898.

Appeal from district court, Raines county; Howard Templeton, Judge.

Action by P. L. Rose against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Affirmed.

On the 1st day of August, 1897, the appellee was in the employment of appellant as a brakeman, and on that day, while descending from the top of a freight train at or near a place called "Island Creek Tank," one of the hand-holds attached to the side of the car gave way, and he was precipitated to the ground; sustaining injuries, as he alleges and claims, about the small of his back and kidneys. On the 28th of October, 1897, he filed his petition in the district court of Raines county, and sought to recover of appellant $30,000 for damages by reason of personal injuries sustained by him under the circumstances above stated. On the 5th of November, 1897, the defendant filed its answer, which consisted of a general demurrer and general denial, and a special plea setting forth that plaintiff's injuries, if any he suffered, were caused by his own negligence, and that such injuries resulted from the risks assumed by plaintiff when he entered the service of defendant; that plaintiff had full knowledge of any defects in the ladder; that the car referred to in plaintiff's petition, on the ladder of which he was descending, was a foreign car, received by it from another company, and loaded at the time it was received by defendant; that defendant had said car inspected in the usual manner; that plaintiff was well acquainted with the manner in which said character of cars was inspected, and had been so acquainted for a long time prior to his injuries. On the 13th day of December, 1897, the case was tried in the district court of Raines county, and resulted in a verdict and judgment in favor of plaintiff. The defendant in due time filed its motion for new trial, which was overruled, to which defendant excepted, and gave notice of appeal. The appeal was duly perfected.

Head, Dillard & Muse and T. S. Miller, for appellant. B. M. McMahan and C. H. Yoakum, for appellee.

BOOKHOUT, J. (after stating the facts).

Appellant's first assignment of error reads: "The court erred in permitting the plaintiff, P. L. Rose, to testify that his mother was living, and that she was now 70 years of age, because the testimony was irrelevant, immaterial, and too remote." Upon the trial, while the plaintiff was testifying as a witness, he was asked if his mother was living, and what was her age, to which question, and the testimony sought to be elicited thereby, the defendant objected on the ground that it was irrelevant, immaterial, and too remote. The objections were overruled, and the witness answered that his mother was now living, and that she was now 70 years of age. To this ruling of the court, defendant excepted, and took its bill of exception. Appellant, in support of its objections, relies upon the case of Railway Co. v. Hannig (Tex. Sup.) 43 S. W. 508. In that case the husband was suing for personal injuries to himself, and while upon the witness stand was permitted to testify that he had a wife, and that his wife had no means of support, except her own labor. The supreme court held that it was error to admit the evidence "that witness' wife had no means of support, except her own labor." In the case before us there is nothing in the record tending to show that the mother of P. L. Rose was in any way dependent upon him, or that he was contributing to her support. It was competent to show the expectancy of life on the part of the plaintiff, Rose; and, as tending to show this fact, the evidence was admitted to show that he was of a long-lived family. Although this testimony may have had but little weight, yet we cannot say it was incompetent. We therefore overrule appellant's first assignment of error.

Appellant's second assignment of error reads as follows: "The court erred in permitting B. L. Rose, S. Pelphrey, and R. N. Allen to testify that a new or different handhold had been placed on the car, because such testimony is irrelevant and immaterial; all of which is set forth in defendant's bill of exceptions No. 2." Upon the trial, after the plaintiff had testified that on the 10th day of August, 1897, he examined car No. 10,998, and found that the wood in said car, at the bottom of the ladder, was decayed and rotten, and that such wood was near the bottom rung of the ladder, or near where the same had been, he further testified, over defendant's objections, that another rung of the ladder, or another hand-hold, had been put on, or the hand-hold that was broken had been put on; and also the witnesses S. Pelphrey and R. N. Allen, who had been placed on the witness stand as witnesses by defendant, on cross-examination were permitted to testify, over defendant's objections, that another hand-hold had been placed on the car No. 10,998. The evidence shows that plaintiff was injured by the hand-hold coming off of car No. 10,998. It was further shown that it was a foreign car, and its initials were "B. M. & R. R." The objection to the evidence was that it was immaterial and irrelevant. The objection was overruled, and the testimony admitted. The court approved appellant's bill of exception, with this explanation: "That plaintiff desired to prove by the witness B. L. Rose the condition of the car from which plaintiff fell, and he testified that he examined in Denison on August 6, 1897, a car (No. 10,998) marked `B. M. & R. R.' For the purpose of further identification he was permitted to testify to the fact that a hand-hold had been recently placed on the car he examined, subsequently. Allen and Pelphrey testified that after the accident, and before B. L. Rose examined the car, a new hand-hold was placed on the car from which plaintiff fell. At the time all this evidence was introduced, I instructed the jury not to consider the same for any purpose, except in so far as the same might tend to identify the car examined by Rose as being the one from which plaintiff fell. No admission was made until after this evidence had been introduced." This evidence was not introduced for the purpose of showing negligence on the part of the company, but solely for the purpose of identifying the car. The court instructed the jury not to consider the same for any purpose, except in so far as the same might tend to identify the car examined by Rose as being the one from which plaintiff fell. The evidence was admissible for the purpose of identification, and the charge of the court expressly limited the evidence to the question of identification. The court did not err in admitting it. Railway Co. v. Johnston, 78 Tex. 536, 15 S. W. 104.

Appellant's third assignment of error complains of the action of the court in permitting the witness W. A. Duffy to testify that, in what he was saying in reference to plaintiff's recovery, he was not governed by his treatment of the case, but by the text-book authorities, and in testifying that such books claimed that there never was any perfect or entire recovery from the disease from which plaintiff was suffering, and in permitting the witness to testify that he did not believe that plaintiff would ever be able to work, or be free...