Yeatts v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 05 February 1916
• Docket Number: (No. 7433.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 636
• Parties: YEATTS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

184 S.W. 636

YEATTS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.

(No. 7433.)^*

Court of Civil Appeals of Texas. Dallas.

February 5, 1916.

On Rehearing, March 25, 1916.

Appeal from District Court, Collin County; M. H. Garnett, Judge.

Action by Ed Yeatts against the St. Louis Southwestern Railway Company of Texas. Judgment for the defendant, and plaintiff appeals. Affirmed, and motion for rehearing denied.

B. Q. Evans and H. L. Carpenter, both of Greenville, and L. C. Clifton, of McKinney, for appellant. E. B. Perkins, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellee.

RASBURY, J.

Appellant sued appellee for damages for personal injuries to his wife. There was jury trial, resulting in verdict for appellee, followed by similar judgment, from which this appeal is prosecuted. Briefly stated, appellant's testimony tended to show that prior to the time his wife was injured there was in the town of Josephine a concrete sidewalk maintained by the citizens extending north and south to appellee's side and main tracks, which extended east and west through the town. From the junction of the concrete walk with appellee's tracks appellee built and maintained a sand and gravel walk across the tracks to a junction with its passenger platform. The height of the concrete walk, the gravel and sand extension, and the platform was uniform. This way was customarily used by the citizens of Josephine in going to and from appellee's station to the south portion of the town. Prior to the time appellant's wife was injured appellee removed the sand and gravel constituting the portion of the walk between its main tracks, which were the tracks nearest its platform, and raised its tracks, which left its rails six or seven inches above the earth's surface and the cross-ties one or two inches above such surface. Subsequent to all the foregoing, and on April 22, 1914, at 3:40 a. m., appellant and wife alighted from one of appellee's passenger trains upon the unlighted platform and started in the usual way for their home south of the station. Appellant's wife had no knowledge of the changed condition of the walk, and when she reached the rails she stepped between them placing her foot upon the edge of one of the exposed cross-ties, with the result that her foot turned, and she fell and was seriously injured.

Appellee's testimony tended to sharply contradict appellant's claims, and to show that appellant's wife's injuries were due to other causes. Appellee's testimony also tended to show that the general reputation of the appellant, who was a witness to all the facts material to his recovery, for truth and veracity and honesty and fair dealing, was bad.

We deem the foregoing brief statement of the facts which the evidence will support sufficient, since all issues on appeal arise upon the admission or exclusion of testimony.

It is first urged that the court erred in refusing to permit the witness Abbott to answer a question propounded by appellant. Abbott was a witness for appellee, and on direct examination testified, in substance, that he had known appellant's wife for 12 years prior to the trial, and had seen her during the trial, and that he was unable to see any difference in her appearance as to health or strength since the injury. On cross-examination the witness testified that, while appellant's wife walked and got about "lively," he never did regard her as a robust, healthy woman, but that there was nothing in her appearance to suggest that she was "sick at all."

Question: "Now, you saw her yesterday, and will you tell that jury that there was not anything about her that suggest[s] that she was sick yesterday?"

Had the witness been permitted to answer, appellant expected to prove by him that on the day inquired about appellant's wife appeared pale, emaciated, weak, and debilitated, with a loss of 20 or 25 pounds of flesh. However, upon objections by counsel that the question called for the opinion and conclusion of a nonexpert witness, the court excluded the answer, explaining in his qualification of the bill that the answer was not excluded on the ground that the witness could not testify as to the appearance of appellant's wife, but because the question did not call for an answer concerning the appearance of appellant's wife. The oft-stated rule under which it is urged the answer should have been admitted is that:

A nonexpert witness "may state the apparent physical condition of a man, * * * or as to what are more distinctly inferences from animate bodily phenomena, as the existence of a state of apparent sickness or disease. Such an observer may also state a change in apparent condition, whether the change is from sickness to health, or from health to sickness, or from bad to worse, or from worse to better. He may also infer and state that a person's ability to help himself, or his faculties or the use of his limbs or other parts of his body, or his earning capacity has or has not been impaired." 17 Cyc. 87.

To the same effect is Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W. 455, and cases cited, wherein the reasons for the rule are discussed. Consequently, under the broad and flexible rule stated, we are not prepared to say that the question was improper, or not pertinent, as indicated by the court's qualification. Certainly it was not improper, because the witness was a nonexpert. Nor can it be said that the question was objectionable because it sought to elicit a conclusion or the opinion of the witness, since, based on the preceding testimony of the witness that he had seen appellant's wife before and after the accident and had observed her condition on both occasions, he was qualified to state his conclusion or his opinion concerning her illness.

We conclude, however, that the court's action was harmless, because the witness on recross-examination answered substantially the same question. The record discloses that after the court sustained the objection to the question the witness was again examined by appellee's counsel, and in turn again examined by appellant's counsel, when he, in substance, testified that appellant's wife appeared to be physically weak and looked frail.

Question: "I will ask you if she not only looks frail, but looks sick?" Answer: "I haven't made any very close observation, I was just in her presence a few seconds yesterday evening in the judge's room."

The question excluded was whether she looked sick yesterday. The question finally answered was that he did not know whether she looked sick or not because when he saw her "yesterday" in the judge's office it was only for a few moments, during which time he did not observe her closely. The answer of the witness to the last question was evidently the extent of his knowledge of the subject, since counsel did not pursue the examination further. That being true, and the question being so substantially similar to the one excluded, we are constrained to believe the court's action was not reversible error.

The second, third, fourth, fifth, sixth, and seventh assignments of error relate to the exclusion of certain testimony tendered by appellant in rebuttal of certain facts attempted to be proven by appellee. To any consideration of the assignments appellee objects on the ground that the bills of exception supporting the assignments fail in each instance to state what the answer of the witness would have been to the questions propounded. The ground of the objection as relates to the second, third, fifth and seventh assignments is sustained by the record, and the objection will be sustained for that reason. Beeks v. Odom, 70 Tex. 186, 7 S. W. 702; Cunningham v. Austin & N. W. Ry. Co., 88 Tex. 534, 31 S. W. 629.

As to the fourth and sixth assignments the objection is overruled, since said assignments relate in the one instance to the refusal of the court to permit the witness to answer questions propounded on cross-examination and in the other to the exclusion of testimony. In such cases a different rule applies. Cunningham v. Austin, etc., supra; Long v. Red River Ry. Co., 85 S. W. 1048.

The next issue is the action of the court in refusing to permit the witness Reece to answer questions propounded by counsel for appellant. Reece was a witness for appellee, and had testified that he had known appellant for more than 20 years, had had no personal difference with him, and was on friendly terms with him, but that the general reputation of appellant for truth and veracity and honesty and fair dealing was bad. Upon cross-examination, after probing the facts upon which the witness based his conclusion and eliciting from the witness that he could recall but one circumstance, counsel for appellant inquired:

"His dealings with you were fair and square, were they not?"

The witness was not permitted to answer, whereupon counsel for appellant further inquired:

"Do you know of a single dishonest act that he ever performed or committed?"

Again permission to answer was denied, whereupon counsel inquired:

"Now, Mr. Reece, is it not true that in all of your personal dealings with him for the length of time you have known him he always acted fair and square with you; so far as your personal knowledge is...