Texas & P. Ry. Co. v. Crump

• Decision Date: 18 May 1908
• Citation: 110 S.W. 1013
• Parties: TEXAS & P. RY. CO. v. CRUMP et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 1013

TEXAS & P. RY. CO. v. CRUMP et al.^*

Court of Civil Appeals of Texas.

May 18, 1908.

On Rehearing, June 6, 1908.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by Booker Crump and another against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. L. Hall and Flippin & McCormick, for appellant. P. A. Sidell and Curtis, Hancock, Cockrell & Gray, for appellees.

RAINEY, C. J.

Booker Crump and Addie Crump, husband and wife, brought this suit against the Texas & Pacific Railway Company for damages for the killing of their 10 year old son, Allen Crump, alleging the killing to have resulted from the negligence of appellant's servants in running a passenger train over him. Defendant answered by general denial, and contributory negligence of said Allen Crump in attempting to board the train while it was in motion. A trial resulted in a verdict and judgment for plaintiffs, and the defendant appeals.

The first error assigned is: "The court erred in overruling defendant's application to withdraw its announcement and continue the case, and in refusing to permit the defendant to withdraw its announcement of ready, and to have the case continued when it was shown to the court that after announcement defendant, for the first time, learned that its chief witness, on whom it had relied, had changed his testimony, and denied all knowledge of having witnessed the accident and of having made a statement to the effect that Allen Crump was killed while attempting to board a moving train. The facts bearing upon this assignment are more fully shown in defendant's bill of exception No. 1." There is copied in the transcript what purports to be a bill of exceptions, but it fails to show the signature of the trial judge, if it was ever signed. In order for the wrongful overruling of a motion for continuance to be taken advantage of in this court, it is necessary that a bill of exceptions should be preserved, and to preserve a bill of exceptions it is essential that it be signed by the trial judge, and it should so appear from the record sent to this court. The assignment, therefore, has no basis for consideration by this court. We will remark in passing, however, that the purported bill of exception does not show reversible error.

The second assignment of error complains of the court in overruling the motion for a new trial, which is based on the court's action in overruling the motion for a continuance. What we said in relation to the first assignment is sufficient to show that there is no merit in this assignment.

The third assignment complains of the court's refusal to admit testimony of three witnesses, as to statements made by one Tommie York, to the effect that Allen Crump had attempted to board a moving train, which was the cause of his death. The witness Tommie York was introduced by the defendant to prove that he saw the accident, and that Allen Crump at the time he was killed was attempting to board the moving train, and that he had made a statement to that effect. He testified that he was not present at the time of the killing and knew nothing of how it happened. This testimony did not affect the merits of the case. He did not swear to what defendant claims he had formerly stated about Allen Crump attempting to board the train. The testimony of the three witnesses would not have been evidence that York saw Allen Crump attempt to board the moving train, but its only purpose would be to contradict York; and, as York made no statement injurious to defendant's case, the testimony was properly excluded. Besides, a party cannot contradict his own witness, unless he has been surprised by some injurious statement made by the witness. Appellant cannot claim surprise on this score, as Tommie York had told counsel, just before being placed on the...