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

• Decision Date: 17 December 1910
• Citation: 133 S.W. 499
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.
• Court: Texas Court of Appeals

133 S.W. 499

MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.

Court of Civil Appeals of Texas.

December 17, 1910.

Rehearing Denied January 14, 1911.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by W. T. Williams against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Coke, Miller & Coke and Templeton, Craddock, Crosby & Dinsmore, for appellant. Evans & Carpenter, for appellee.

RAINEY, C. J.

W. T. Williams brought this suit against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for injuries alleged to have been sustained by his wife, which resulted from exposure to cold in the company's passenger station at Brashear, Hopkins county, to which station she had gone in the early morning to take passage to Greenville on appellant's train. After suit W. T. Williams died, and the wife, Alice Williams, made herself a party and prosecuted the suit. The petition alleged, in substance, that on April 15, 1908, Williams and wife purchased from appellant's agent at Greenville, two roundtrip tickets to Brashear; that Brashear was a flag station at night; that said agent at Greenville informed them that the agent at Brashear would flag the early morning train in order to permit them to take passage thereon upon their return to Greenville; that Williams and wife went to the waiting room of appellant about 3:30 on the morning of April 17, 1908; that it was cold and damp; that the agent at Brashear failed and refused to heat or warm the waiting room and failed and refused to flag the train; that they were compelled to wait and remain in said waiting room, where it was cold and damp, about one hour before the train reached said station, and afterwards were compelled to leave the said station and go to a neighboring house for the remainder of the night; that the exposure of Mrs. Williams caused her to contract cold and grippe, which afterwards resulted in rheumatism, nervous prostration, general weakness, and break down of her health, which has become permanent; that Mrs. Williams has continuously since suffered physically and mentally and been disabled from physical labor. Appellant answered by general denial and specially that Brashear was for all night trains a flag station only, and defendant did not keep a servant or agent there at night and persons desiring to take night trains flagged the trains themselves, which was known to W. T. Williams, at the time he went to the station; that if any one was at said station representing himself as acting for appellant it was a fraud, as he had no authority to act for appellant; that if Mrs. Williams was suffering from any disease or ailment it was from disease that existed prior to the alleged injury; that plaintiffs contributed to the injury in that they did not take the necessary precaution for Mrs. Williams' protection; that if Mrs. Williams was suffering from disease or ailment it was the consequence of infirmities and disease natural to women of her age. A trial resulted in a judgment in favor of appellee for $3,500, and the railway company appeals.

The first assignment of error is: "The court erred in admitting in evidence the testimony of the witness J. Y. Carr as to the general reputation of the plaintiff for truth and veracity in the community in which she lived in Rockwall county, as set forth in defendant's bill of exceptions No. 2." The bill of exceptions is: "Be it remembered that upon the trial of the above entitled and numbered cause the defendant's witness J. Y. Carr, being upon the witness stand, and having testified on direct examination, was, upon cross-examination by plaintiff's counsel asked the following question: `I will ask you to state if you know Mrs. Williams' (plaintiff's) general reputation for truth and veracity in that community?' To which question defendant's counsel objected because immaterial and irrelevant, there having been no attack on her general reputation for truth and veracity, and her general reputation not having been put in issue by any evidence in this cause. Which objection was by the court overruled, and the witness was permitted to answer, which he did as follows: `Certainly she was a nice, good woman, a good citizen as far as the woman was concerned in our community, a splendid family of people as far as I know.' To all of which action and ruling of the court the defendant's counsel then and there in open court excepted, and now here tenders this its bill of exception and asks that the same be signed, approved, and filed as a part of the record in this cause." "This bill is approved, with this explanation: When the question was objected to, it was abandoned and was never answered. The witness made a voluntary statement as set forth in the bill, but it was not responsive to the question, and no motion was made to strike it out; besides, at the time this witness testified, there had been an attack made on the truth and veracity of Mrs. Williams." Testimony offered to sustain the good character of a witness for truth and veracity is not admissible unless an attempt has been made by the opposite side to impeach such character. Every witness is presumed to be truthful until the contrary is shown, and the contradiction of a witness by other witnesses testifying differently is not such an attack upon the character for truth and veracity as authorizes the introduction of testimony sustaining the general character for truth and veracity. Railway Co. v. Raney, 86 Tex. 363, 25 S. W. 11. The explanation appended to the bill of exceptions by the trial judge, we think, is not supported by the record. There was testimony by witnesses contradicting the testimony of Mrs. Williams in some particulars, but, as we understand it, there was no attack upon her general character for truth and veracity.

We do not think it ought to be considered that the question was abandoned and never answered, and that the witness' statement was not responsive to the question. The rule for examining witnesses on this matter is to first ask, "Do you know the general reputation of ____ in the community in which she lives for truth and veracity?" The answer should be either "yes" or "no." If the answer is "yes," then the answer to the second question, "Is that reputation good or bad?" should be either "good" or "bad." But as is frequently the case, the witness here answered both questions by replying, "Certainly; she was a nice, good woman; a good citizen as far as the woman was concerned in our community—a splendid family of people, as far as I know." This answer was all that counsel for plaintiff could have desired for the purpose of sustaining the credibility of his witness, and there was no reason for him to further press the matter,...