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

• Decision Date: 03 July 1896
• Citation: 37 S.W. 771
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 771

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

Court of Civil Appeals of Texas.

July 3, 1896.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by Ida Johnson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Affirmed.

Appellant's statement of the nature and result of the suit is substantially correct, and is as follows: Ida Johnson, a minor, brought suit in the district court of Johnson county against the Missouri, Kansas & Texas Railway Company of Texas, to recover damages for personal injuries which resulted to her in April, 1893, in the town of Alvarado, Tex. She alleged that at that time she was a child of tender age, having been born in June, 1889, and that on the ____ day of April, 1893, she and her brother, also a minor, started from home to carry dinner to their father, who worked at a brickkiln west of the railway track of defendant company; that, after having delivered the dinner, they then started to return home, and while traveling a public road in an easterly direction, and while at a point where said road crosses the track of the railway, and just as she was in the act of crossing same, one of the locomotives of the defendant company, pulling some cars, without blowing any whistle or ringing any bell or using any care or caution, ran against her, and caused her to be knocked off of said road, and one of the wheels ran over one of her legs, crushing, breaking, and injuring same. It was alleged that, by reason of said injuries, plaintiff had lost the use of her toes on her foot, and the use of her leg; and that the same had been rendered deformed and unsightly; and that she suffered physical pain and mental anguish; and that her locomotion had been rendered permanently defective, and she had lost the efficient use of her leg and foot, and would forever suffer a deformity in said foot,—for which she prayed damages in the sum of $10,000. The defendant company answered, pleading general denial and contributory negligence on the part of the plaintiff, and specially that, at the time when plaintiff was struck, she was not at a public crossing, but was on the private ground of the defendant, and that her injuries resulted from her own wrong in putting herself in a place of danger, and without any fault on the part of defendant. The case came on for trial May 27, 1895, and, the application of the defendant for a continuance having been overruled, there was a trial by jury, and verdict rendered in favor of plaintiff for the sum of $5,000. Motion for new trial having been overruled, appellant brings the case by appeal to this court.

Stanley, Spoonts & Thompson, for appellant. Poindexter & Padelford, for appellee.

FINLEY, J. (after stating the facts).

The facts established upon the trial, in so far as we deem it necessary to give conclusions of fact, will be stated under the assignments of error involving the facts of the case.

The first assignment of error presented by appellant complains of the action of the court in overruling its application for a continuance. The continuance was sought to secure the testimony of one T. C. Farley. It was the second application for a continuance made by appellant. The application set forth the facts which the witness Farley would testify to if present, and the facts so set forth in the application were clearly material to the issues raised upon the trial. The witness Farley, at the time of the institution of the suit, was in the employ of the defendant railway company, and had regularly attended upon the court at its previous sessions as a witness to testify in the case, under direction of the railway company. In the early part of December, 1894, shortly after the last session of the court which the witness attended, he quit the service of the company, and went to Mattoon, Ill. On May 3, 1895, the attorney for the defendant wrote a letter to the general agent of the company, advising him that the cause was set for trial on Monday, May 27th, and gave him a list of witnesses who had been in the service of the company, and requested the general agent, who had charge of that department, to arrange for the attendance of the witnesses, including the said Farley. The attorney ascertained, shortly after his request was made to the general agent, that said Farley had left the state of Texas, and removed to the state of Illinois. Upon the receipt of this information, the defendant's attorney immediately prepared interrogatories to take the deposition of Farley, and on May 13th forwarded the same to the attorneys for plaintiff, who at once crossed such interrogatories, and returned them to the defendant's attorney on May 17th, with the commission to take the deposition attached. These interrogatories, with the commission to take the deposition, were sent to an officer at Mattoon, Ill., about May 20th, arriving there about May 23d; and the fact was ascertained from said officer that Farley had suddenly left Illinois, and his whereabouts were unknown, and he had been unable to ascertain where he was. The defendant's attorney seems to have exercised due diligence, so far as he as attorney was concerned; but the client, the railway company, is not shown to have been diligent in the matter. Farley left the employ of the company early in December, as before stated, and went to Illinois. The master (the company) must be held to have had notice that Farley was no longer in its employ, and subject to its command and direction in attending court as a witness. He had appeared as a witness at two terms of the court; but he did not do so in obedience to any process of the court, but at the direction of his employer. The next term of the court at which the case could be tried was in the following May, and the company should have taken the proper steps to secure the testimony of this witness. Had its attorney been promptly notified of the fact that said Farley had quit the service of the company, and moved out of the state, he would, doubtless, have procured the witness' deposition, as Farley left Mattoon, Ill., only a few days before the interrogatories above mentioned arrived there. The application for continuance was addressed to the discretion of the court, and we cannot say that the court erred in overruling the application, as we think the application, instead of showing due diligence on the part of the defendant, showed that the company had been negligent in the matter of procuring the testimony of this witness. Sayles' Civ. St. art. 1276; Telegraph Co. v. Burdine, 2 Tex. Civ. App. 521, 21 S. W. 982.

The second assignment of error complains of the admission of the testimony of the witness James Johnson. The bill of exceptions reserved to this action of the court is as follows: "Be it remembered that, on the trial of the above cause, James Johnson was called by the plaintiff's counsel, and testified that he was a brother of plaintiff, Ida Johnson. The defendant objected to this witness testifying, on the ground that it was not shown that he understood the nature of an oath. Thereupon plaintiff's counsel interrogated the witness as follows: `Q. Jim, if you told a story, what would become of you? A. Old buggerman get you. Q. Who is the old buggerman? What would the bad man or old buggerman do with you? A. Get you. Q. What would he do with you after he got you? Is it right to tell a story or wrong? A. It is wrong. Q. So the bad man would get you if you told a story? A. Yes, sir. Q. (by Court). Suppose he got you, what would he do with you? A. Burn me.'" "After said examination, defendant's counsel further objected that the examination above made was no test of comprehension. The court overruled the said objections, and allowed the witness to testify with reference to the facts of the case, and defendant then and there excepted, and now tenders this its bill of exceptions No. 2, and asks that it be approved and made of record in this cause; and it is done. Allowed, with this explanation: That the witness was shown to be ten years old, and on his preliminary examination he showed that he understood the obligation of an oath, and was a competent witness." The question of the competency of a child to testify as a witness in a civil suit rests largely within the sound discretion of the trial judge. There is no precise age at which the law presumes a child incompetent as a witness. At common law, every one over the age of 14 is presumed to have common discretion and understanding, but under that age such presumption does not obtain. When a child of tender years is offered as a witness, it is proper to ascertain whether it has sufficient intelligence and comprehension of the obligations of an oath to be prompted thereby to tell the truth. If it has sufficient intelligence to distinguish between good and bad, and to understand the nature and effect of an oath, it should be permitted to testify. Schouler, Dom. Rel. pp. 526, 527; 1 Greenl. Ev. § 367. In criminal cases we have a statute on this subject, as follows (article 768, Code Cr. Proc. 1895): "All persons are competent to testify in criminal cases, except the following: * * * Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath." We have no statute on the subject controlling in civil cases, and the common-law rule obtains in civil trials. In Indiana it is held that a child who is ignorant of the nature of the punishment of false swearing, yet comprehended the obligation of an oath, and believed that a departure from the truth while testifying would be followed by appropriate punishment, is a competent witness. Blackwell v. State, 11 Ind. 196. The bill of exceptions presented to us does not disclose that the witness did not know that there was a legal punishment for...