S. A. A. P. Ry. Co. v. Hammon , 92 Tex. 509 ( 1899 )

This suit was brought by the defendant in error against the plaintiff in error to recover damages for personal injuries inflicted upon his wife which were alleged to have been caused by the negligence of the company's servants. The plaintiff in the trial court recovered a judgment, which was affirmed by the Court of Civil Appeals.

It was alleged and proved that the wife of plaintiff was injured by a train of the defendant company at a point where its track crossed a street in the town of Beeville. It was also alleged, among other things, in effect, that at the time of the accident defendant's train was running at a high and dangerous rate of speed without giving the proper signals of its approach. The defendant pleaded that the wife of the plaintiff was guilty of contributory negligence in endeavoring to pass the track without looking and listening for approaching trains. The plaintiff claimed that his wife did look and listen, and that she was prevented from seeing the approaching train by objects near the track which shut it off from view.

The plaintiff took the deposition of his wife in support of his case. Aiefore the trial, a motion on behalf of the defendant was filed to suppress certain of the interrogatories to that witness and the answers thereto, some for the reason that they were leading, and others upon the ground that they predicated upon answers to previous interrogatories which were leading and improper.

A leading question is usually defined as one which admits of an answer simply in the affirmative or negative, or which, embodying a material fact, suggests the desired answer. It may be gravely doubted whether or not the definition be accurate in either form. Probably there may be questions which admit of an answer either in the affirmative or negative which do not indicate to the witness the expected answer. On the other hand, to an intelligent witness, almost any material question contains something in the way of suggestion as to the desired response. Mathis v. Buford, 17 Tex. 152. But where a question contains "a series or group of facts" and admits of a complete answer by a bare affirmation or negation, it is clearly leading. Lott v. King, 79 Tex. 292. It enables the witness "to echo back" the language of the examiner, and enables the examiner to lead even an honest witness in such manner as to give to the testimony a false color, and it may be to grossly distort it. The seventeenth, nineteenth, and twenty-second interrogatories propounded to Mrs. Hammon were of this character. It is apparent from our preliminary statement that it was a material question whether Mrs. Hammon exercised proper care when she attempted to cross the track, and as bearing upon that issue the existence of obstructions to her view along the track became a material question in the case. Yet these interrogatories are so framed that by simple affirmative or negative answers the witness is enabled to say that she did not hear the train; did not hear either the bell or whistle; that there were bushes and cars beside the track, and that by reason thereof she was prevented from seeing the aproaching train. We think the court erred in refusing to suppress the answers to these interrogatories; and think, since the twentieth interrogatory is based upon an answer to a previous leading question, the answer thereto ought also to have been stricken out.

The errors assigned to the action of the court in refusing to suppress the answers upon the ground that the interrogatories were either leading or based upon other answers to leading questions are more than twenty in number, and are too numerous to be discussed in detail. After a careful consideration, we have concluded, with some hesitation as to some of them, that these assignments, with the exception of those mentioned above, point out no error. The twenty-first and thirty-ninth interrogatories may be leading; but if so, we are of opinion that they are not improper, for the reason that we regard them as merely introductory to other questions upon the material issues in the case.

But it is insisted on behalf of the defendant in error that if the interrogatories in question be leading, it should be presumed that the court admitted them in the exercise of a sound discretion, and that therefore there was no error in admitting the answers. It is also urged that it affirmatively appears that the condition of the witness was such as to render it proper for the court to relax the rule and permit leading questions to be asked. The facts relied upon in support of the latter contention are that she was not familiar with the English language; that her deposition was taken through the aid of an interpreter; that her sufferings had been great, her nervous system prostrated, and her Mind affected.

In a very few jurisdictions it is held that the admission of leading questions is discretionary with the trial court, and that therefore its action upon the matter is final. In others, it seems to be held that ill order to reverse for the admission of an answer to a leading question, the burden is upon the appealing party to show by his bill of exceptions that the court did not admit it in the exercise of a sound discretion as coming under some one of the exceptions to the rule. We think, however, that since the general rule is that leading questions as to a material fact are not allowable, in order to sustain the action of a court in admitting answers thereto, the record should show that for some sound reason the judge saw proper to exercise his discretion and to relax the rule. Such we understand to be the rule of decision in this court. In no ease in our reports in which this question has been discussed, from Able v. Sparks, 6 Tex. 349, to Railway v. Duelin, 86 Tex. 450 [86 Tex. 450], have we found any intimation that in the absence of a showing in the bill of exceptions to the contrary, the appellate court will presume that an answer to a leading question was admitted not because the trial judge was of opinion that it was not leading, but for the reason that he considered that the circumstances demanded that he should exercise his discretion and admit it.

In this case we do not see from the face of the record a single circumstance to justify the court in departing from the general rule. The witness was not unwilling, for the reason that although the suit was brought in the name of the husband, it was in part for her benefit. She was a real party to the suit. Simpson v. Brotherton, 62 Tex. 170. If her mind was impaired, her deposition does not reflect the fact. Her answers are clear and precise and her ideas accurately expressed. It can hardly be seriously contended that the fact that her answers bad to be taken through an interpreter afforded any good reason why the rule should be relaxed. There could be nothing to Justify such action in her manner of testifying, for she was not before the court. Indeed in Mathis v. Buford, 17 Tex. 152, if is intimated that, when testimony is taken by deposition there is no exception to the rule which prohibits leading questions.

The plaintiff in error has presented one assignment upon a paragraph of the court's charge and some others to the action of the court in refusing certain special charges requested on its behalf. We have examined these assignments, and are of opinion that they show no error.

For the errors pointed out, the judgment of the Court of Civil Appeals and that of the District Court are reversed and the cause remanded.

Reversed and remanded.