Trinity County Lumber Co. v. Denham

• Decision Date: 13 December 1894
• Citation: 29 S.W. 553
• Parties: TRINITY COUNTY LUMBER CO. v. DENHAM.
• Court: Texas Court of Appeals

29 S.W. 553

TRINITY COUNTY LUMBER CO. v. DENHAM.

Court of Civil Appeals of Texas.

December 13, 1894.

Appeal from district court, Trinity county; A. B. Watkins, Judge.

Action by H. S. Denham against the Trinity County Lumber Company. From a judgment for plaintiff, a new trial being refused, defendant appeals. Affirmed.

For former opinions, see 11 S. W. 151, and 19 S. W. 1012.

J. P. Stevenson, Jas. E. Hill, Adams & Adams, and J. R. Burnett, for appellant. Nunn & Nunn, for appellee.

PLEASANTS, J.

This suit was instituted by appellee on the 9th of April, 1883, against the appellant, in the district court of Trinity county, to recover of the defendant compensation for personal injuries sustained by plaintiff, and resulting, as alleged, from the negligence of defendant. There have been several trials in the lower courts, and the cause has been twice in the supreme court, and the decisions upon the appeal to that court are to be found in 73 Tex. 78, 11 S. W. 151, and 85 Tex. 56, 19 S. W. 1012. In December, 1882, the defendant, the Trinity County Lumber Company, was operating a steam sawmill at Groveton, in Trinity county, and the plaintiff, H. S. Denham, was employed by defendant to cut logs for its mill, and while so engaged had occasion to go to the mill to confer with L. T. Sloan, the general manager of the defendant company, in reference to certain logs, which had been ordered; and while in the mill, which was then in operation, plaintiff was severely injured by a blow from a piece of lumber 2×6 inches, and from 2½ to 3 feet long, which fell from what, in the nomenclature of machinists, is designated as the "idler frame," upon the belt or band which connects the saw with the engine, and which was hurled with great violence against plaintiff, striking him upon the face, his left breast and left arm, breaking his nose, producing concussion of the brain and lungs, and rendering him senseless for several days. The "idler" is the pulley which rests on the belt, and regulates its tension, and the "idler frame" holds this pulley in position, and moves up and down while the mill is in operation. The idler frame in defendant's mill was constructed of four pieces of timber, mortised and tenoned, and held together by bolts and nuts. The frame was made of unseasoned lumber, and a short time before the injury to plaintiff the tenons, by reason of the shrinkage of the wood, became loose in the mortises, and the bolts were tightened, and braces were placed diagonally between the upright pieces of the frame, and fastened thereto by 20-penny nails; and it was one of these braces which struck the plaintiff. The issue between the litigants was whether or not an idler thus constructed and thus braced was reasonably safe. The evidence upon this point was conflicting. A trial was had in April, 1894, and resulted in a verdict and judgment for the plaintiff for $10,000, and, a new trial being refused, the cause is brought to this court by appeal.

On the trial of the cause, J. D. Borden, a witness for the plaintiff, testified by deposition that a day or two after plaintiff was injured he met Mr. L. T. Sloan, the president and general manager of the defendant company, upon the streets of Groveton, and that Sloan said to witness he was very sorry for the accident, and that he knew the idler was in bad condition, and had told his foreman to watch it closely, and that he supposed the foreman had overlooked it; and in reply to cross questions propounded him by defendant's counsel this witness said, in substance, that the plaintiff's suit was brought by himself and Mr. Granbury; that they were at one time interested in the suit; that he now had no interest whatever in the suit; that he had transferred for a consideration all his interest to Messrs. Nunn & Bean; that he did not remember exactly the date of the assignment of his interest, but that it was before the venue of the case was changed to Polk county; that he did not remember when he first testified, — the records would show; he thought it was at the third or fourth trial of the cause; that Granbury and himself were to receive one-half of what they recovered for the plaintiff, and that he received for his interest $100. On motion of plaintiff's counsel, the words, "Granbury and myself were to receive one-half of what we recovered," and "for the consideration of one hundred dollars," were by the court excluded, because irrelevant; and the defendant assigns this as error. The court was of opinion, as appears from the bill of exceptions, that, the witness having testified that at the time he was being examined he had no interest in the result of the suit, whether he was or was not interested when he first testified was no longer material. We think the defendant had the right to show, if he could, that defendant was interested when he first testified, notwithstanding he had ceased to have any interest in the suit. The fact that the witness was interested in securing a recovery for the plaintiff when he first testified for him was relevant, as tending to show bias or sympathy for plaintiff on part of the witness, and for this purpose such fact was legitimate evidence. But we do not see that any part of the excluded testimony shows, or tends to show, that witness was interested at the time he first testified. Had the witness been asked the question. "When you first testified in this cause, were you or not interested in the result?" the witness would doubtless have given a positive answer; but this question was not propounded, and the answers given, including the words excluded by the court, leave it uncertain whether the witness assigned his interest in the suit before or after he first testified. What the witness received for his interest was, in our judgment, a fact which could serve no legitimate purpose, and was irrelevant. While it may be that the amount of the witness' interest in the sum which plaintiff might recover was not irrelevant, we do not think the exclusion of such fact by the court, if error, is such error as would authorize a reversal of the judgment.

The second assignment of error is in these words: "The court erred in allowing plaintiff to prove over defendant's objections, as set out in its bill of exceptions No. 2, that defendant's witness L. Mason had joined in an affidavit to change the venue of this suit from Polk county on defendant's motion, and to read in evidence the affidavit of said Mason for such change of venue. Said evidence did not affect, or tend to impeach or affect, the credibility of the witness, or show a bias or sympathy on his part for the defendant in this suit, as held by the court, and was incompetent as impeaching evidence, and was calculated to mislead the jury, and prejudice the rights of defendant." We think it would certainly have been permissible for plaintiff, upon cross-examination of the witness, had he been testifying in court, to show any fact which would tend to show a bias or sympathy with the plaintiff on part of the witness. It is always legitimate to show by the witness himself relations between himself and the party for or against whom he is testifying. Relationship, friendship, party or class sympathy, have...