White v. Houston & T. C. R. Co.

• Decision Date: 28 April 1898
• Citation: 46 S.W. 382
• Parties: WHITE v. HOUSTON & T. C. R. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

46 S.W. 382

WHITE v. HOUSTON & T. C. R. CO.¹

Court of Civil Appeals of Texas.

April 28, 1898.

Appeal from district court, Waller county; T. S. Reese, Judge.

Action by James White against the Houston & Texas Central Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed.

J. V. Meek and R. E. Hanney, for appellant. Baker, Botts, Baker & Lovett and Frank Andrews, for appellee.

WILLIAMS, J.

Appellant sought by this action to recover damages for the killing of his son, John White, which he alleged had been caused by the negligence of appellee's servant and vice principal, one Sebelle, and appeals from the judgment upon verdict of a jury against him.

The petition and evidence showed that deceased was one of a switching crew, employed in defendant's yard at Houston, of which the foreman, Sebelle, was a vice principal of defendant, and the other members were fellow servants of deceased. A car, which was the rear one of a train of 15 or 20, had been derailed from one of the tracks which extended east and west along the northern side of a long platform, and the crew were engaged in the attempt to restore it to its place upon the track. In doing so, White went under, or partially under, the car on its south side, next to the platform, and one Jackson took a like position at the opposite side of the car, for the purpose of placing pieces of iron, or frogs, in position, so that, when the car should be pulled by the engine at the other end of the train, its wheels would mount the frogs and pass over them to the rails. It was thus the duty of these men to adjust the irons, and, when all was ready for the engine to pull, it was the duty of the foreman to give to the engineer the proper signal for the movement. After several "pulls" had been made without success, White and Jackson again adjusted the irons, the signal was given by Sebelle, the engine was moved, and the derailed car moved across the track towards the platform, and White was caught and fastened between it and the platform. When this was seen, signals were given to the engineer to back the train for the purpose of releasing White, and this was done. The plaintiff claimed that Sebelle was guilty of negligence in giving the signal while White was under the car, without giving him warning, and that as a result White, in his attempt to get out, was caught as stated; and that Sebelle was further guilty of negligence in causing the engineer to back the train, instead of adopting less dangerous means of extricating White.

The evidence upon which these contentions depended was conflicting. The court below submitted both issues, and the errors assigned are in the rulings upon the admissibility of evidence and the giving of instructions.

The most important witness for the plaintiff was one Clyde Creighton, whose testimony, if true, would probably be sufficient, with the other evidence, to warrant a recovery. The defendant, besides undertaking by its witnesses to disprove the facts stated by Creighton, attacked his character for truthfulness by the depositions of witnesses taken in Houston, where he resided. The question by which the predicate for the admission of their evidence was laid was as follows: "Are you acquainted with the reputation of Clyde Creighton in the community in which he lives for truth and veracity?" Appellant before the trial moved to suppress the question and the answers of the witnesses, for the reason that the general reputation of the witness was not called for, and the motion was overruled. The question was objectionable because it did not require a statement of the witnesses' knowledge of the general reputation of the party for truth and veracity, which was necessary to qualify them to testify to the fact. But the answers of most, if not all, of the witnesses, showed their knowledge of such general reputation, and were given with reference to it. The question elicited proper testimony from the witnesses who thus qualified themselves, and it was not, therefore, error to allow the question to stand. If the answers of any of the witnesses failed to show that they knew and testified as to the general reputation, the objection should have been urged to such answers when offered as evidence. An objection was urged to both question and answers when offered, but it seems from the bill of exceptions that it was taken generally to all of the evidence upon the subject, and not to the answers of particular witnesses. It cannot be seen that there was error in these rulings of the court. What has been said is sufficient for another trial.

The defendant also introduced, over proper objection, the testimony of the same witnesses to prove that Creighton had no occupation and no means of livelihood; that he would not work, and was a common street loafer and a "bum." This seems to have been offered for the purpose of impeaching his character as a witness. For this purpose we think all of this evidence was inadmissible. Testimony as to the character of a witness, for the purpose of impeaching him, is confined to his general character for truthfulness. Boon v. Weathered's Adm'r, 23 Tex. 675; Railway Co. v. Johnson, 83 Tex. 628, 19 S. W. 151. It is urged by appellee that the evidence was offered for the purpose of identifying the witness, but it is not perceived how his identity was in any way in question, or how this evidence would have enabled the jury to determine it, if it had been in issue.

Some of this evidence might have been admissible, as contended by appellee, if offered for another purpose. Appellee undertook to show that money had been furnished to Creighton by plaintiff to induce him to go to Hempstead and testify. This was admissible as a circumstance to...