Dallas Ry. Terminal Co. v. Durkee , 193 S.W.2d 222 ( 1946 )

This is a damage suit arising out of a collision between an automobile driven by appellee and appellant's streetcar, at the intersection of Lindell and Matilda Streets in the City of Dallas. The streetcar involved in the suit was going north on Matilda Street, the automobile west on Lindell. Appellee is a physician and surgeon, and at 7:30 A.M. on the occasion in question was going west on Lindell en route to a hospital to perform, or assist in the performance of, an appendectomy scheduled for that morning. Appellee was quite familiar with this intersection, having crossed it, as he said, "a couple of hundred times, anyway" in the last "two years and four months."

Appellee testified, pertinent here, that as he approached the intersection, and about 40 feet from the corner, he slowed down his automobile, took his foot off the accelerator, applied pressure on the brakes, disengaged the clutch, thus slackening speed to between 20 and 25 miles per hour, and continued to slow it down as he approached the street intersection; that when he was about 10 feet from the east line of Matilda Street and going less than 10 miles per hour, he shifted the clutch of his automobile, throwing it into second gear, looked both ways — to the north and to the south — and saw a streetcar to the north on Matilda Street about a block away but did not see the approaching streetcar to the south; that he continued to slacken the speed of his automobile to about 8 miles per hour, with gear in second; and, as he approached the streetcar track, again looked to the south; seeing no streetcar approaching from that direction, he continued his slow speed until after the front end of his automobile had crossed the track, when he looked again to the south and, for the first time, saw the streetcar involved in the collision approaching, "seemingly running pretty fast" and, by the time he had moved his automobile four or five feet across the mid-line, or west of the car line, the streetcar struck his automobile about center, dragging it up Matilda Street about 30 or 35 feet, resulting in injuries to himself and damage to his automobile.

In appellant's pleadings and proof, issues of contributory negligence proximately causing the collision were raised: Appellee's failure to keep a proper lookout; failure to slacken speed; for driving his automobile and attempting to cross the intersection in front of the streetcar that had previously entered the intersection; and for operating his automobile at a rate of speed not reasonable and prudent under the conditions then existing, having regard for the actual and potential hazards in approaching and crossing the intersection in question. On trial to a jury verdict was rendered in favor of appellee on all primary and contributory issues of negligence; the trial court entered judgment accordingly.

Appellant's first contention is that the court erred in overruling its application for continuance, or postponement, because of the absence of Mr. W. D. Gauntt. In its application, which is not shown to have been controverted, appellant urges, pertinent here, that it was the first application for continuance; that the witness Gauntt was a material witness in behalf of appellant, in that he would testify that he was a passenger on the streetcar involved in the collision; that he saw the automobile operated by appellee before the collision and before the impact with the streetcar; that appellee was driving his automobile at a rate of speed in excess of 30 miles per hour; that appellee drove his automobile into the intersection and upon the streetcar track in front of the streetcar without slackening speed; that the streetcar upon which witness was a passenger was traveling at a rate of speed less than 20 miles per hour and had entered the intersection before the automobile entered it. The application further shows that appellant had used due diligence to secure the attendance of said witness, in that on January 25, 1945, appellant's agent attempted to contact the witness at 3014 Greenville Avenue in the City of Dallas, where witness had his home and previously worked, and, not finding him there or elsewhere, contacted his wife, only to learn that the witness had not been seen for about two weeks; that witness and his wife were getting a divorce and his whereabouts was unknown; that a sub-poena for the witness was duly issued and delivered to a constable of precinct No. 1, Dallas County, Texas, with request that same be served and that he, the constable, make diligent effort to locate the witness. The application further shows that the officer made return, showing that after diligent search and inquiry he had been unable to locate said witness. The application was sworn to by appellant's attorney, showing that he had authority to make the affidavit and the matters and things set forth therein were true and correct. This being a first application for continuance or postponement, the question presented is whether appellant's application was in compliance with Art. 2168, R.S. 1925. This statute requires that the party applying for continuance must make affidavit that such testimony is material to the issues involved, showing the materiality thereof; that he has used due diligence to procure such testimony, stating in detail such diligence and the cause of failure; that, if it be for absence of a witness, he shall state the name and residence of such witness and what he expects to prove by him; that the continuance is not sought for delay only, but that justice may be done. The statute further provides that on the first application for continuance it shall not be necessary to show that the absent testimony cannot be procured from any other source.

We think the application in question was substantially in compliance with the statute; as related above, it was properly verified as to diligence shown to procure the witness's attendance, cause of failure, name and residence of the witness, and what appellant expects to prove by him. The materiality of the witness' testimony, which was not controverted, must be considered as true. Thus, in ascertaining whether the trial court abused its discretion in overruling the application, the alleged facts along with the testimony taken on trial of the case must be considered. Ward v. Brown, Tex. Civ. App. 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex. Civ. App. 48 S.W.2d 437; United Employers Casualty Co. v. McCloud, Tex. Civ. App. 146 S.W.2d 247; 9 Tex.Jur., p. 760, sec. 83. In so doing, there can be no question as to the materiality of the alleged absent witness's testimony, particularly so in light of the pleadings and evidence in reference to the issues of appellee's contributory negligence. However, it will be seen from subsequent events that, perhaps, the error of the trial court in overruling the application for continuance could not reasonably be held sufficient to reverse the cause. The record on motion for new trial shows that a week or ten days after the case was tried, a claim agent of appellant located witness Gauntt and, in conversation with him, the witness related that he was on the streetcar involved in the collision, saw the automobile as it approached and entered the intersection in question, and that the automobile was "running fast." The record further shows that the witness promised said agent to be in attendance at court on the motion for new trial and give testimony in reference to the circumstances incident to the collision; but, for reasons unknown to appellant and its agent, witness was not present and could not be again located. Manifestly, the related statement of the absent witness that the automobile was "running fast," without more, is merely a conclusion of the witness and such would not substantiate the allegations in appellant's application for continuance; but, we think, with the promise of attendance, the agent may well be excused for not being able to relate in detail all the conversation he had with the witness, and for the failure to issue sub-poena to force his attendance. United Employers Casualty Co. v. McCloud, Tex. Civ. App. 146 S.W.2d 247. However, because of our disposition of this appeal on another assignment, we express no conclusion as to whether or not the trial court's abuse of discretion in this particular alone would constitute reversible error.

While there are numerous issues involved in this appeal, we think the controlling question presented grows out of the trial court's action in refusing appellant's request to permit the jury to take with them in their retirement to deliberate on the case, four certain photographs of the streets and intersection where the accident occurred. The photographs in their entirety were introduced in evidence with admonition, properly given by the trial judge, that they do not depict or evidence the amount of foliage on the trees and bushes, position of the streetcar involved in the collision, or the sign of warning in the middle of the intersection. This accident occurred on May 6, 1944, the photographs were taken on January 16, 1945; thus it could hardly be assumed that the bushes and trees shown in the picture were in full accord as of May 6, 1944, or that the streetcar on the track, for demonstration purposes, and the sign of warning in the intersection, were the same in the winter month of January 1945, as they were in the spring month of May 1944, when the accident occurred; otherwise, predicate of identity was established as to the intersecting streets.

The following is one of the photographs (the others visualizing the intersection from other viewpoints):

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

This picture was taken with camera placed at 100 feet east of the intersection on Lindell Street; the streetcar shown was 36 feet south on Matilda; Lindell Street is shown to be 25 feet wide and Matilda 36 feet wide. Now, bearing in mind appellee's testimony that, at 7:30 in the morning, on May 6, 1944, he was approaching the intersection from Lindell Street and at 40 feet from the corner had reduced the speed of his automobile to about 20 to 25 miles per hour, continued to slow it down, with clutch disengaged and running in second gear, to 10 miles per hour as it entered Matilda Street and to 8 miles per hour as he approached the streetcar tracks; that at the east line of Matilda Street he looked to the north and to the south, and again looked as he approached the track going at 8 miles per hour, and on neither occasion did he see the streetcar; and that the first time he saw the streetcar was after the front end of his automobile had crossed the track, when he looked up and, for the first time, saw the streetcar, too late to have avoided the collision, clearly the photographs demonstrate that the trial court visited injury to appellant in refusing appellant's request to permit the jurors to take them in their retirement. The court qualified appellant's bill of exception to its action in overruling the request, by adding to the bill that if the jury had requested the photographs during their deliberation they would have been given to them. We think the qualification to the bill did not cure the error of the trial court in denying appellant's request. This question is decided in Trinity B. V. R. Co. v. Lunsford, Tex. Civ. App. 183 S.W. 112, and Bankers Life Co. v. Butler, Tex. Civ. App. 122 S.W.2d 1077, 1079 to which we adhere, "that R.S. Article 2193 was enacted for the benefit of litigants, and that its enforcement should not be made to depend on whether or not the jury requested the use of such written testimony while considering the case." "Photographs and pictures, it is said, stand on the same footing as diagrams, maps, plans, etc., and as a general rule whenever it is relevant to describe a person, place, or thing, photographs or pictures are admissible for the purpose of explaining and applying the evidence and assisting the court or jury in understanding the case." 22 C.J., 913; 32 C.J.S., Evidence, § 709; Texas Employers' Ins. Ass'n v. White, Tex. Civ. App. 68 S.W.2d 511, 514. The importance, materiality and probative force of the photographs, in the light of appellee's testimony, were important factors in determining whether the violation of the mandatory provision of the statute visited injury upon appellant. It may well be conceded, in absence of proof of injury, that the admission, or refusal, of unimportant, immaterial, uncontroverted or cumulative disclosures by photographs or documental evidence, or the disclosures of the whole record, might affirmatively determine that no injury resulted to the losing party; but, where photographs (as here) and documentary evidence disclose facts on vital controverted issues, the court should not speculate on the rights of the parties and assume that no injury resulted from the violation of the statute. Art. 2193, now Rule 281 T.R.C.P., expressly provides that the jury may take with them in their retirement any written evidence, except depositions of witnesses. Written evidence includes photographs. The evident purpose, in authorizing such to be carried into the jury room, is to aid the jury in vizualizing the related facts on material issues and composing any disagreements that may arise in reference thereto. It is a wellknown fact that some people draw conclusions from the sense of sight, others from the sense of hearing as well as sight. Evidently, in the case at bar the photographs were material and, we think, carried probative force on the issues involved in the suit; hence the error of the court in refusing to allow them to be taken to the jury room is cause for reversal of the judgment and remand of the cause for new trial.

We have examined all other assignments of error; they are overruled; and, for the errors above related, the judgment is reversed and cause remanded.

Reversed and remanded.