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

• Decision Date: 07 March 1917
• Docket Number: (No. 5737.)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON et al.
• Court: Texas Court of Appeals

193 S.W. 728

MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON et al.

(No. 5737.)

Court of Civil Appeals of Texas.

March 7, 1917.

Rehearing Denied April 4, 1917.

Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.

Suit by Mrs. Gertrude Johnson, administratrix, and others, against Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appealed. Affirmed.

Page & Jones, of Bastrop, for appellant. S. L. Staples, of Smithville, and Orgain & Maynard, of Bastrop, for appellees.

JENKINS, J.

Frank Johnson, deceased, was an engineer upon appellant's train, and was killed October 9, 1914, in a wreck on said road. Appellee Mrs. Gertrude Johnson brought this suit for herself and the children of herself and Frank Johnson, deceased, alleging that the engine upon which the deceased was engineer was derailed by reason of the negligence of appellant in the construction and maintenance of its track at the point of derailment; specifically alleging that said track was negligently constructed; that the rails were defective and badly worn and insufficient to sustain the weight and pressure of the engine, and that the ties were old, rotten, weak, unsafe, split, water-soaked, spongy, too small to support the engine, and spaced too far apart. From judgment in favor of appellees, as to the amount of which there is no complaint, the appellant has appealed and assigns numerous errors.

There was no error in permitting the introduction of the American life insurance table of mortality. The same was shown by the witness Saunders to have been sent to him by the Great Southern Life Insurance Company of Houston, of which he was the agent, and that he used the same in his business as insurance agent, and that he had been engaged in that business for six or seven years.

Appellant assigns error upon the court's permitting the witness Carter to testify, over its objection, that a bulletin had been issued by appellant, limiting the speed of the train upon which Johnson was killed to 45 miles an hour; that this bulletin was in the office of appellant at Smithville, in Bastrop county, Tex., where he had read the same. The objection made to this testimony was that the bulletin itself was the best evidence. This rule does not apply where the document testified about is not the basis of the suit, but is merely collateral to the main issue. Heidenheimer v. Beer, 155 S. W. 355; Larrabee v. Porter, 166 S. W. 405; Dalhart Real Estate Agency v. Le Master, 62 Tex. Civ. App. 579, 132 S. W. 860. Even had the court committed error in the admission of this testimony, it would have been harmless in the instant case, for the reason that it was proven by another witness, without objection, that 45 miles an hour was the limit prescribed by the railway company for the train upon which Johnson was killed. Had it not been true that appellant's bulletin referred to by the witness prescribed this speed, we take it that appellant would have shown that fact in its motion for a new hearing. No such allegation was made in said motion.

The sixth, seventh, eighth, ninth, and tenth assignments of error relate to the manner of cross-examining J. H. Pruett, appellant's roadmaster. The question propounded was:

"Don't you know that if you were to come into this court, now occupying the position you do as inspector of the track to see that the ties are all sound, and if you swore ties were in bad condition, you would lose your job?"

This question, in substance, was repeated three times to this witness. The objection to the question was that it was an attempt to insult, browbeat, and degrade the witness. To all of the questions the witness answered, in substance, that as it was his business to constantly inspect the road, and to report to the company any defect that he found in the ties, that if he should now swear that the ties were rotten it would show that he had failed to discharge his duty to the company, and that he ought to be discharged, if such were the fact, but that this fact would not cause him to swear untruthfully with reference to the condition of the track. The matter of cross-examining a witness is largely in the discretion of the trial court, and we cannot say that the court abused its discretion in this instance to the material detriment of appellant.

Appellant assigns error upon the refusal of the court to permit...