Missouri-Kansas-Texas R. Co. of Tex. v. Bush

• Decision Date: 05 February 1958
• Docket Number: No. 10533,MISSOURI-KANSAS-TEXAS,10533
• Citation: 310 S.W.2d 404
• Parties: RAILROAD COMPANY OF TEXAS, Appellant, v. Nolan Lee BUSH, Appellee.
• Court: Texas Court of Appeals

Page 404

310 S.W.2d 404

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS, Appellant, v. Nolan Lee BUSH, Appellee.

No. 10533.

Court of Civil Appeals of Texas, Austin.

Feb. 5, 1958.

Rehearing Denied Feb. 26, 1958.

Wayne R. Howell, Denison, G. H. Penland, Dallas, J. S. Freels, Denison, C. B. Maynard, Bastrop, Dan Moody, Jr. and Dan Moody, Austin, for appellant.

Joe P. Hart, LaGrange, Bracewell, Reynolds & Patterson, Houston, for appellee.

GRAY, Justice.

Appellee sued appellant for damages under the Federal Employers' Liability Act, Title 45 U.S.C.A. Sec. 51 et seq., for personal injuries. He alleged that appellant owned a network of railroad lines over which it operated trains in interstate commerce; that on the night of July 26, 1953, he was acting in the course of his employment by appellant as a brakeman on a freight train and that while in the performance of his duties he was riding in the cupola of a caboose when he was struck in his left eye and on the left side of his face by an object thrown or otherwise propelled through a window of the cupola causing him to loose the sight of his left eye and to suffer further damages. He alleged that appellant was negligent in various respects and that such negligence was a proximate cause of his injuries.

In answer to special issues submitted with appropriate definitions and instructions a jury found: that appellant required appellee to perform his duties as a brakeman in a caboose that was without reasonable protection from objects thrown or propelled toward the caboose; that such requirement was negligence, and that such negligence was a proximate cause of appellee's injuries. The jury assessed appellee's damages at $80,000, and a judgment for appellee for that amount was rendered.

There was evidence that at or near the place where the accident occurred three persons were seen standing on or near the right of way as the train passed and that the window by which appellee was sitting was open. The jury found:

'that one of the three persons standing near the train as the caboose approached and passed threw a rock or other hard missile which passed through the open window of the cupola of the caboose and struck the plaintiff.'

This was the second trial of this cause and at the former trial Hugh C. Cole testified as a witness for appellee. He was not present at this trial and over appellant's objection the testimony he gave at the former trial was read to the jury. This action is made the basis of appellant's first point.

It is shown by the record (including a bill of exceptions) that the cause had been set for trial for February 11, 1957, and that on the preceding Friday or Saturday appellee's attorney learned that Cole, on February 5, had gone to a hospital in Denison, Texas. Before the announcement of ready for trial by appellee on February 11, his attorneys were advised by appellant's attorneys that appellant would object to the transcript of Cole's testimony being read to the jury. A conference between the attorneys and the trial court was had and appellant stated he would object to the reading of the transcript of Cole's testimony given at the former trial because it would be hearsay and because appellant wanted to further cross examine him. Appellee did not seek either a postponement of the trial or a continuance and made no effort to take Cole's deposition but announced ready for trial. The trial began February 11 and was concluded February 15.

On February 12 one of appellee's attorneys testified that at the former trial Cole testified as a witness; that he was cross examined by appellant; that Cole was then ill and in a hospital at Denison; that before his illness Cole had planned to be present for the trial and further testified.

'Q. And, when did you find out that he was going to the hospital?

'A. I didn't find out that he was actually in the hospital until either last Friday or last Saturday, and I learned from the neighbors that he was in the hospital in Denison.

'Q. And, then, you did investigate that and verify that fact?

'A. Yes, sir.

'Mr. Reynolds: No further questions.'

Upon the transcript of Cole's testimony being offered appellant made a further objection as follows:

'Well, I object to the offering of the testimony in the form of the transcribed notes of what the witness testified to, not because of any question about the verity of the testimony as it has been transcribed; I'm sure that it's absolutely accurate and I've read it, but I felt that I was giving them fair warning that I was going to oppose the introduction of the transcript of his testimony; that I wanted an opportunity to cross-examine him further, and that I was giving them that notice in advance, so that they wouldn't be surprised at this particular moment right now. And, then, he refers to the authorities he presented; I have no question about the authorities, but I do remember the authorities say that if the witness could not be obtained, and there has been nothing offered here, no testimony offered or no statement made at the time about his condition or how long he'd been sick--he might have said how long he had been sick, but how long he was going to be sick; there was no showing that he could not be later produced to testify here from the witness stand if he wanted to. So, I insist on the objection that I made before the announcements of ready were made in this case, and ask the Court to refuse to have the testimony read.'

After the objection the following discussion was had between the trial court and appellee's attorney:

'The Court: Well, I'm not talking about the authorities; the predicate is all I'm worried about.

'Mr. Reynolds: Well, we feel that we've satisfied the authorities.

'The Court: All right, read the testimony.'

Appellant's exception was saved and the transcript of Cole's testimony was read to the jury. His testimony was that he had been employed by appellant for forty-five years; that most of the time he worked on freight trains, first as a brakeman and later as conductor, and that he was familiar with the type of caboose used by appellant. He testified to three specific instances of rocks or objects being thrown at or into the caboose; that in the 'Big Cut' near San Antonio slabs of concrete fell off of overpasses onto trains and that other objects were thrown at them; that in one instance gravel spilled from a car in the train and was thrown up against the caboose 'and showered us pretty good in the caboose'; that once a piece of oak fell from a car and came up and landed on the top of the caboose. He said that glasses 'are broken by just such as I'm talking about. A bolt falls off and knocks a rock up in the air and it comes up and breaks a glass in the caboose. It's happened to me a good many times. In fact, we don't worry about that unless somebody gets hurt.' He further said that in 'my forty-two years on the road, I've had numbers of objects thrown at the caboose,' and in another instance he said 'We're being thrown at continually.' He said he was familiar with cabooses used by another railroad, that he had ridden in those cabooses and said they were equipped with safety devices. He described the construction of the cabooses and the safety devices used. He also said that he knew of two of appellant's cabooses that had been equipped with safety devices by employees.

The rule with reference to the introduction of evidence given at a prior trial by an absent witness is quoted by our Supreme Court in Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 as follows:

'* * * testimony of a witness given at a former trial of the same case on substantially the same issues, and where there was opportunity for cross examination, may be reproduced where it is shown that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.'

See also Carter v. Irvine, Tex.Civ.App., 77 S.W.2d 247.

The most that the record shows is that Cole testified and was cross examined at the former trial and at this trial he was ill and in a hospital at Denison. There was no showing that the illness was disabling, whether it was expected to be of temporary duration or was of a continuing nature. It is not shown whether Cole voluntarily entered the hospital or whether he was directed by his doctor to enter, nor is it shown for what purpose he went there or how long he was expected to remain.

Under the rule supra the question here is: Was there a showing that Cole 'was physically unable to testify?' The burden was on appellee to make this showing. There is no showing that Cole was physically unable to testify but only that he was ill and in a hospital in another county, but in Texas. It then became necessary that appellee show diligence in trying to procure his testimony by deposition or otherwise and that the testimony could not be procured.

After appellee learned that Cole was in the hospital he had time to procure evidence showing his physical condition for which reason a presumption as to such condition cannot be indulged.

'Presumptions are based upon some necessity, and in the absence of such necessity they will not be indulged, and the court will not go into the domain of presumptions where direct proof can be obtained.' Christopher v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394, 400, Er. dism.; 31 C.J.S. Evidence Sec. 114; Miller & Miller Motor Freight Lines v. Hunt, Tex.Civ.App., 242 S.W.2d 919. Saenz v. Hinojosa, Tex.Civ.App., 268 S.W.2d 476.

Further the inference cannot be drawn that because Cole was in the hospital he was physically unable to testify because it would be uncertain from mere proof that he was ill and in the hospital that he was also physically unable to testify. Rounsaville v. Bullard, 154...