St. Louis S.W. Ry. Co. of Texas v. Moore , 173 S.W. 904 ( 1915 )

Among the instructions given by the court to the jury was the following:

"If you shall find that the defendant's employés, Phillips and Beaird, or either of them, caused the car in question to be sent or kicked onto the sandy track with great and unnecessary violence, and if you find that such act, if any, on their part, was negligence, and that they could and would, by the use of ordinary care, have known that plaintiff was in danger of being injured by reason of the force with which said car would come in contact with other cars on said track, then if you shall find that as the direct and proximate result of the great and unnecessary speed, if any, with which the cars were kicked on said sandy track, the plaintiff was jerked and wrenched and injured while he was holding to the brake to lessen the speed and violence of the collision of said car with others on said track, you will find for the plaintiff, and, unless you do so find, plaintiff cannot recover by reason of the cars coming in contact with other cars on said track."

Before the charge was read to the jury, appellant objected to the portion thereof set out above, on the ground that it was misleading in that it was calculated to "lead the jury to believe that in the opinion of the court" there was evidence to show that Beaird or other of appellant's employés had been guilty of negligence in the manner in which the cars were kicked, whereas appellant contended there was no such evidence. The first assignment is based on the action of the court in overruling said objection.

It is believed there was testimony sufficient to support findings: (1) That under the circumstances shown a reasonably prudent person would not have kicked the cars, nor caused same to be kicked, as violently as they were kicked; (2) that Phillips, the foreman of the switching crew, whose duty it was to signal the engineer when and how hard to kick the cars, signaled him to kick them as they were kicked; and (3) that the engineer, either in compliance with the signal, or in disregard thereof and of his own volition, kicked them as he did. If the jury might have found that the engineer kicked the cars, as he did, in compliance with signals given him by the foreman, they might have concluded that the latter was guilty of negligence; and, if they might have found that the former kicked the cars as he did of his own volition, they might have concluded that he was guilty of negligence. Therefore we are of opinion the court did not err when he overruled the objection urged to the instruction.

Three other assignments are presented in the brief. Each of them is based on the action of the trial court in overruling an objection made by appellant to testimony specified, and each refers to "defendant's bill of exceptions No. 2," which is not in the record sent to this court. The assignments, therefore, must be disposed of with reference only to objections and exceptions noted in the statement of facts as authorized by the rules.

The complaint in one of the three assignments is that the court erred in overruling appellant's objection to certain testimony given by the witness McKenzie on his cross-examination by appellee. As it does not appear that the action of the court was excepted to, the ruling should not be reviewed here. McFaddin v. Prater (Sup.) 3 S.W. 306; Foley v. Railway Co., 50 Tex. Civ. App. 218, 108 S.W. 169, 110 S.W. 96.

In another of said three assignments appellant complains that the court, over its objection that same was irrelevant and immaterial, permitted the witness Beaird, on his cross-examination by appellee, to give certain testimony. We think the court was justified in overruling the objection on either of two grounds: (1) That it was too general (1 Wig. on Ev. § 18; Railway Co. v. Smith, 50 Tex. Civ. App. 10,108 S.W. 996); and (2) that a part of the testimony objected to, to wit, "when it come to kicking cars, I always use my judgment," etc., was admissible. The rule is that if an objection "goes to the whole of the testimony complained of, and a part is admissible, the objection to the evidence will not be considered." Dolan v. Meehan, 80 S.W. 101.

Cross-examining appellee, appellant proved by him that he continued to work during the night of November 17th, after the collision in which he claimed to have been injured occurred, and during several days between that date and November 26th, when he resigned the position he held with appellant. Appellant further proved by appellee that he suffered from a stricture, and that in October, before the accident occurred, he underwent an operation for same at a point on his person near the place where a femoral hernia developed after the accident. And appellant further proved by appellee that, when he resigned on November 26th, he never said anything to its agents, to whom he tendered his resignation, about having been hurt. On his re-examination by his own counsel, the court permitted appellee, over appellant's objection that same was "hearsay, self-serving, and not res gestae," to testify as follows:

"Q. Did you make any statement to Mr. Phillips, the night foreman, that night, after you got down from the car and came back to where he was, with reference to what happened on the car? A. Yes, sir. Q. Now, tell the jury, as near as you can, what you said to him. A. When I got down I went up there and said: `Phil, you oughtn't to be kicking these cars so damn hard. I hurt myself back there while ago.' He said: `How?' I said: `I wrenched my back there while ago. The brake was bad, and I couldn't hold those cars, and you kicked them entirely too hard.' He said: `Are you hurt bad?' I said: `No; I wrenched my back a little, I think.' He said: `Well, shall I make out a statement?' I said: `No; there is no use of making out a statement, I don't think. I will let you know between now and morning.'"

Other testimony in the record shows that the conversation just detailed took place within three or four minutes after the collision between the cars occurred.

It is believed the court did not err when he overruled the objection urged to the testimony. We are not prepared to hold it was not admissible in rebuttal of inferences deducible from testimony drawn by appellant from appellee while cross-examining him (Railway Co. v. Patterson, 47 S.W. 686; Railway Co v. Fox, 156 S.W. 924, Railway Co. v. Hawk,30 Tex. Civ. App. 142, 69 S.W. 1040); but, if it was not admissible on that ground, we think it was admissible under the rule recognized in this state, which admits, as parts of the res gestæ, "not only such declarations as accompany the transaction, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design." Railway Co. v. Hall, 80 S.W. 133,34 Tex. Civ. App. 535; Railway Co. v. Anderson, 82 Tex. 519, 17 S.W. 1039,27 Am. St. Rep. 902; Railway Co. v. Gray, 95 Tex. 428, 67 S.W. 763; Railway Co. v. Vance, 41 S.W. 169.

The judgment is affirmed.