San Antonio Traction Co. v. Badgett
| Decision Date | 11 June 1913 |
| Citation | 158 S.W. 803 |
| Parties | SAN ANTONIO TRACTION CO. v. BADGETT. |
| Court | Texas Court of Appeals |
Action by Nancy J. Badgett against the San Antonio Traction Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Templeton, Brooks, Napier & Ogden, of San Antonio, for plaintiff in error. Arnold & Carl, of San Antonio, for defendant in error.
This is a suit for damages arising from personal injuries alleged to have been inflicted upon appellee by appellant in negligently starting a car, with a violent jerk or lurch, from which she was about to alight. Appellant pleaded contributory negligence on the part of appellee in stepping from a moving car. The cause was tried by jury, and resulted in a verdict and judgment for appellee in the sum of $4,750.
Deferring to the verdict of the jury, we conclude that appellee was injured in the sum found by the jury through the negligence of appellant in violently jerking its car while appellee was in the act of alighting from it.
The first, second, third, and fourth assignments of error make complaint of the action of the court in not allowing the testimony of J. R. Peche, appellant's conductor, to be read to the jury, necessarily by the stenographer from his notes, the only proposition under the assignments being: "In case of dispute or disagreement on the part of the jury as to the effect of the testimony of any particular witness, the jury have a right to have that testimony repeated to them, and it is the duty of the court upon request to have same done." The only provisions on the subject of recalling witnesses or rereading depositions in case of disagreement of a jury are embodied in articles 1963 and 1964, Rev. Stats. 1911. In those articles no provision is made for the reading of stenographic notes to a jury in case of disagreement as to the evidence of a witness, and it would require legislation to admit of such procedure, although there might be no reason for rejecting the use of such stenographic notes. If the court had ordered the jury to be brought into the courtroom, and had required the stenographer to read from his notes the disputed testimony, while there is no warrant in the law for such action, it might possibly be held such error as could not have injured any one, and consequently not sufficient to form a basis for a reversal. But it was refused, and in the absence of a law permitting or requiring the use of the stenographic notes, when the jury disagree as to evidence, this court cannot hold that the court erred. It might have been well perhaps for the court, if the jury had asked in a legal way for the stenographic report of the evidence, to have suggested that he would have the witness brought upon the stand again, and permit him to detail his testimony to the particular point of disagreement, and we will presume that the court would have done so if it had been practicable to have the witness in attendance; but appellant does not claim that the court erred in failing to make such suggestion, but the contention is that the testimony should have been read from the notes of the stenographer. The decisions of other states under their peculiar statutes cannot be authority for the courts of Texas which must pass upon the action of the trial judge under the statutes of this state. There are decisions, however, which hold that, in the absence of statutes permitting it, it is error to permit the notes of a stenographer to be read to a jury in case of this disagreement as to certain evidence. Fleming v. Town, 67 Iowa, 505, 25 N. W. 752, 56 Am. Rep. 354; Padgitt v. Moll, 159 Mo. 143, 60 S. W. 121, 52 L. R. A. 854, 81 Am. St. Rep. 347. We hold that it was not error to deny the reading of the stenographer's notes to the jury after their retirement, because there is no statute permitting or authorizing such procedure. Appellant did not in the lower court, and does not now, complain that the witness was not recalled and his testimony heard on the disputed question, but the sole contention is that the court should have had the stenographer's report of the evidence read to the jury.
We fall to see any material difference between the contention of the juror who sought by his affidavit to impeach and destroy his own verdict and that of the other jurors. Peche, the conductor of the car, testified that he gave one bell for a stop for a man to get off, and as the latter swung off the conductor gave two bells which meant that the car should go ahead, and then, when he saw appellee "get up and start right off," he gave one bell to stop, and called to her to wait until the car stopped. He testified: "When I saw her get up to start out, I hollered to her to wait until the car stopped; just as I saw her start to get up I gave one bell, a signal to stop, and the motorman started to stop his car." The juror...
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