Missouri Pac. Ry. Co. v. Somers

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Missouri Pac. Ry. Co. v. Somers, 14 S.W. 779 (Tex. 1890)
• Decision Date: 25 November 1890
• Parties: MISSOURI PAC. RY. CO. v. SOMERS.

Page 779

14 S.W. 779

MISSOURI PAC. RY. CO. v. SOMERS.

Supreme Court of Texas.

November 25, 1890.

Appeal from district court, Hunt county; E. B. PERKINS, Judge.

Head & Dillard, for appellant. B. F. Looney, for appellee.

GAINES, J.

This case was before this court at the Tyler term, 1888, and the judgment was then reversed, because the evidence was insufficient to support the verdict. The case is reported in 71 Tex. 700, 9 S. W. Rep. 741. It was then held that if the cattle-guards were dangerous by being near to the track of the railroad, the appellee, according to his own testimony, should be deemed to have known of the faulty construction, and to have taken the risk. It was apparent he could not recover for the defect in the brake, for that he well knew. His testimony upon the trial, which resulted in the judgment now appealed from, was variant from that upon the first trial; but, admitting that it was all true, it may be doubted whether it presents any better case. But, however that may be, we are of opinion that the verdict should not be permitted to stand, because the overwhelming weight of the evidence goes to show that what he swore upon the first trial in reference to his knowledge of the cattle-guards was true. Upon the last trial he admitted his former testimony in part, and in so far as it was not admitted it was proved by the special judge who presided at that trial, and by the attorney who then represented him. Upon the last occasion he swore that, at the time of the injury, he did not know that the cattle-guards were too near the track, and attempted to explain his former testimony by saying, in substance, that he had been in the service of the company in 1882 and 1883, and then again in 1887, (the time when the injury was received;) that he was testifying as to the condition of the cattle-guards during his first employment, and would have so stated, but the attorney for the defendant would not let him. He explained his deposition, which had been taken in the case in a similar manner, saying that the notary would not permit him to explain that it was the condition of the cattle-guards in 1882 and 1883, about which he was testifying. He also testified that he did not know what had struck him, although, upon a former trial, he had said he was struck by a cattle-guard. He explained this by saying that he said it was a cattle-guard, because the conductor and brakeman had told him so. The conductor and brakeman both testified that he told them that he saw the cattle-guard before he struck it, but thought he could get his head back before he reached it. At the time of giving this testimony, these witnesses had left the service of the appellant. The appellee, as to the disputed facts, depended solely upon his own testimony, uncorroborated by any witness. Such being the evidence, we feel constrained to hold that the court below should have granted a new trial upon the motion of the defendant. Although this court has the power to review a case upon the facts, and to set aside a verdict which has evidence to support it, that power has been reluctantly exercised. But it is the right and duty of the court to set aside a verdict, when it is against such a preponderance of the evidence, that it is clearly wrong. Willis v. Lewis, 28 Tex. 185; Dimmitt v. Robbins, 74 Tex. 441, 12 S. W. Rep. 94. The plaintiff was contradicted by two disinterested witnesses. On two different trials he gave two inconsistent versions of the facts upon a most material point and gave a very unsatisfactory explanation of the inconsistency. There was no evidence to support his case but his own. It seems to us, therefore, that the jury must have been controlled in their verdict more by their sympathy for a hard-working zealous man, injured in a dangerous employment, than by the law of the case as applied to the evidence.

Since the case is to be remanded, it is...