Texas & P. Ry. Co. v. Raney

• Decision Date: 29 January 1894
• Citation: 25 S.W. 11
• Parties: TEXAS & P. RY. CO. v. RANEY.
• Court: Texas Supreme Court

25 S.W. 11

TEXAS & P. RY. CO. v. RANEY.

Supreme Court of Texas.

January 29, 1894.

Error from court of civil appeals of second supreme judicial district.

Action by Calvin Raney against the Texas & Pacific Railway Company for personal injuries. To a judgment of the court of civil appeals (23 S. W. 340) affirming a judgment for plaintiff in the district court, defendant brings error. Affirmed.

B. G. Bidwell, for plaintiff in error. S. W. T. Lanham, for defendant in error.

BROWN, J.

Calvin Raney recovered, in the district court of Parker county, a judgment against the Texas & Pacific Railway Company, for injuries alleged to have been inflicted upon him through the negligence of defendant while he was in its employ as section foreman. The railroad company appealed, and the judgment was affirmed by the court of civil appeals.

The first assignment of error presented for our consideration is as follows: "The court erred in overruling defendant's objection to evidence offered by plaintiff, showing his reputation for truth and veracity to be good, when no attack had been made on it by defendant." Counsel for defendant in error object to the consideration of the assignment by this court, because the bill of exceptions does not show that the character of the witness had not been attacked. We are referred to the case of Hardin v. Sparks, 70 Tex. 432, 433, 7 S. W. 769. In the case cited, the question was as to whether the witness was qualified to testify as an expert, and involved the production of evidence to the court, and not to the jury. Such evidence need not necessarily be in the statement of facts. The court held that it would presume that the judge of the trial court had done his duty, and unless the bill of exceptions, or some paper in the case, showed to the contrary, the question would not be considered. In this case the evidence impeaching the character of the witness for truth and veracity, if given, was addressed to the jury, and should be in the statement of facts. This court will look to the statement of facts to ascertain whether the exception was well taken or not. The bill of exceptions is sufficient.

The defendant took the deposition of Frank Young, and the plaintiff filed the following cross interrogatory to Young: "Are you, or not, acquainted with the character of the plaintiff, in the community in which he lived when you knew him, for truth and veracity? If you say you are acquainted with it, then please state whether it is good or bad," — to which question the witness answered: "Yes; it is good." After the defendant had closed its testimony, the plaintiff offered to read to the jury the foregoing question, to which the defendant objected, for the reason as stated in the first assignment copied above. The objection was overruled, and the question and answer read to the jury.

Plaintiff lived in Eastland county, the trial being had in Parker county. Plaintiff introduced no witness to prove the facts upon which he sought to recover except himself, stating that no one was present except two Mexicans, who could not speak English, and whom he could not find. He was contradicted by a number of witnesses as to facts about which he testified, and defendant cross-examined him rigidly, drawing out, among other things, the statement that his arm had been dressed by a Dr. McReynolds, to whom he paid five dollars and took his receipt, which was produced in court. The defendant offered the receipt in evidence in connection with the bond for costs which the plaintiff had signed, for the purpose of enabling the jury, by comparison of the writing, to determine whether or not the plaintiff did not write the receipt himself. Contradiction between witnesses, in their testimony given upon the trial of a cause, does not authorize the introduction of testimony to sustain the contradicted witness by proof of general character for truth and veracity. 1 Whart. Ev. § 569; 1 Greenl. Ev. § 469; Bishop of Durham v. Beaumont, 1 Camp. 207; Leonori v. Bishop, 4 Duer, 420; Russell v. Coffin, 8 Pick. 153; Starks v. People, 5 Denio, 30; Pruitt v. Cox, 21 Ind. 16; Fitzgerald v. Goff, 99 Ind. 33; Tedens v. Schumers, 112 Ill. 267; Railroad Co. v. Williams, 54 Ala. 172; Wertz v. May, 21 Pa. St. 279; Atwood v. Dearborn, 1 Allen, 483. It is held by the following cases that the fact that a witness is contradicted by witnesses for the opposite party authorizes the introduction of other witnesses to sustain the character for truth of the witness whose testimony is so contradicted: Isler v. Dewey, 71 N. C. 14; Merriam v. Railroad Co., 20 Conn. 354; Davis v. State, 38 Md. 15; George v. Pilcher, 28 Grat. 311; Newton v. Jackson, 23 Ala. 335. Some of the cases cited couple with it the further proposition that the witness must be a stranger in the place where the trial is had. In the case of Davis v. State, supra, two of the judges dissent, and deny that the rule adopted by the court is the correct one; citing Vernon v. Tucker, 30 Md. 456. In the case of Merriam v. Railroad Co., supra, the court state the rule announced here as the general rule, but also say that the court of that state has adopted an exception, to the effect that when a witness is a...