Thompson v. Ft. Worth & R. G. Ry. Co.

• Decision Date: 11 March 1903
• Parties: THOMPSON et al. v. FT. WORTH & R. G. RY. CO.
• Court: Texas Court of Appeals

73 S.W. 29

THOMPSON et al. v. FT. WORTH & R. G. RY. CO.

Court of Civil Appeals of Texas.

March 11, 1903.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by N. O. Thompson and others against the Ft. Worth & Rio Grande Railway Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Arch Grinnan and E. S. J. Whitehead, for appellants. West, Chapman & West, for appellee.

KEY, J.

This is a suit for damages brought by the surviving wife and children of R. K. Thompson, they alleging that Thompson's death was caused by the negligence of the defendant railway company. After hearing the testimony, the trial court instructed a verdict for the defendant upon the ground that there was no sufficient evidence that R. K. Thompson was injured while a passenger on the defendant's road, and by its negligence.

Overruling all other assignments of error, we sustain the third, which complains of the ruling of the court in excluding certain testimony. The testimony and ruling referred to are disclosed by bill of exception No. 2, which reads as follows: "Be it remembered that on the trial of the above-entitled cause the plaintiffs offered to prove by Mrs. N. O. Thompson, wife of R. K. Thompson, deceased, that, when said R. K. Thompson returned home in his injured condition, he told her that on December 26, 1898, he was a passenger on defendant's freight train, and had some cattle on the same train, bringing them to Brownwood, and that at or near Stephenville, Texas, the trainmen caused the car in which he was riding to give a sudden, violent, and unusual jar, jerk, and jolt, which threw him from his seat against the door facing of said car, and caused the injuries to his head, shoulder, back, and side. The defendant objected to said evidence because the same is hearsay, which objections were sustained by the court, and the plaintiffs excepted to the ruling of the court, and the plaintiffs then offered said evidence in connection with the following other evidence, viz., the petition of R. K. Thompson and all the plaintiffs in this suit, which was filed in the district court of Brown county, Texas, on February 10, 1898, to perpetuate the testimony of said R. K. Thompson, to be used in a suit to be brought by them, or either of them, in said court, for damages sustained by them by reason of the violence and injuries inflicted upon said R. K. Thompson. In this connection plaintiffs offered in evidence the direct and cross interrogatories, and the commission issued thereon to take the deposition of said R. K. Thompson in accordance with said petition. Said interrogatories had indorsed thereon the following agreement: `I hereby waive service, notice and copy and agree that commission may issue authorizing any officer properly qualified to take the answer of the witness R. K....