Texas & Pacific Railway Co. v. Barron

STAYTOH, Chief Justice.

—Appellee claims to have been injured while a passenger in a wreck on appellant's railway, alleged to have been caused by its negligence.

The evidence was conflicting upon the question whether appellee was injured in the wreck, and it is claimed that a new trial should have been granted on the ground that there was no sufficient evidence that appellee was injured at all in the wreck, but there was ample evidence on this point to sustain the verdict.

A witness was permitted to testify: “ I was a passenger on the Texas & Pacific Railway train which was wrecked east of Elmo, June 30, 1889, and was in the ladies car. After the wreck we got the passengers out of the cars, some ladies among the number. After we had gotten all the passengers out of the cars I saw the plaintiff, who seemed to be very much excited. He was very pale. I asked him if he was hurt and he said, eI do not know.' He placed his hands on his stomach or bowels and said, 'I feel very strange; I do not feel right in here; I am afraid I am hurt.' How long it was after the wreck when this occurred I do not know. We had gotten all the lady passengers out; it was perhaps fifteen minutes; I can not tell exactly the time that had elapsed since the wreck, but it was about ten, fifteen, or twenty minutes.”

It is urged that this evidence should have been excluded. Other evidence tended to show that the conversation occurred soon after appellee succeeded in extricating himself from the wrecked train, and that the injuries afterwards found to exist were such as would not likely be realized at once after the act that caused them.

The evidence was material, and especially so in view of the fact that it was contended on part of appellant, with some evidence looking in that direction, that the claim of injury caused by the wreck was an afterthought if not based entirely on feigned symptoms.

“Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings made at the time in question are also original evidence. If they were the natural language of *424 the affection, whether of body or mind, they furnish satisfactory evidence and often the only proof of its existence. And whether they were real or feigned is for the jury to determine. * * * So also the representations by a sick person of the nature, symptoms, and effects of thq malady under which he is laboring at the time are received as original evidence. If made to a medical attendant they are of greater weight as evidence, but if made to any other person they are not on that account rejected.” 1 Greenl., 102.

This rule is well established. Bacon v. Charlton, 7 Cush., 586 ; Railway v. Shafer, 54 Texas, 648 .

We think the evidence was properly admitted, and that the time that may have elapsed between the injury and the declaration is not of much importance in an inquiry of this character.

The question was, What was his feeling at the time of speaking? Whether that was some time after the accident or not might affect the weight to be given to the evidence as tending to establish that he was injured in the wreck, but would not affect its admissibility.

The case of Railway v. Crowder, 70 Texas, 226 , is cited as an authority against the admission of such evidence, but it has no bearing on the question; for in that case the declaration went to show how the injured person was wounded—what he was doing at the time and what caused him to be injured. The difference between the two classes of declarations is well established.

Appellant claims that the court should have granted a new trial because the evidence showed that the break in the track which caused the wreck resulted from an unprecedented rainfall; and further on account of newly discovered testimony.

That the track was broken by the flow of water against the embankment on which the track was is fully shown, but the evidence is as greatly conflicting as well could be as to whether the rainfall was unusual, and it was for the jury to settle the question in view of all the evidence, and to determine whether the railway was so constructed as, in the light of known or ascertainable facts, it ought to have been.

On the trial a witness stated that he heard the general manager of the road, who was on the train at the time-of the wreck, reprimand the section foreman for not going over the track on the morning before the wreck occurred.

One ground on which a new trial was asked was as follows:

“Defendant was surprised by the testimony of plaintiff’s witness R. L. Warren, who testified to the effect that shortly after said wreck occurred, and while upon the scene, he heard defendant’s general manager, Jno. A. Grant, reprimand defendant’s section foreman for failing to inspect said track on'the morning of that day before said wreck occurred; that defendant did not anticipate such testimony, and was not prepared *425 to meet or disprove the same; that defendant’s said general manager left this State shortly before the commencement of this suit, and was out of the State at the time of the trial thereof, and his testimony could not possibly be had to.refute such statement on the trial of this case; that the affidavit of said Grant denying the statement, and to the effect that instead of reprimanding said section foreman, he was informed that he had inspected said track on said morning, is hereto attached and marked Exhibit A and made a part of this motion, and if a new trial is granted defendant expects to produce the testimony of said Grant to the effect stated in said affidavit.” This was duly verified by affidavit.

The affidavit referred to in the motion for a new trial, attached thereto, is as follows:

“ State of Texas, Gounty of Dallas.—Before me, the undersigned authority, this day personally appeared Jno. A. Grant, who, after being by me duly sworn, says on oath that he is and has been for a long time, and was on the 30th day of June, 1889, the general manager of the Texas & Pacific Railway, and performing the duties usual to such position; that on the 30th day of June, 1889, he was on the passenger train passing over said railway which was wrecked east of Elmo, and upon which train W. J. Barron claims to have been a passenger; that it is not true that affiant reprimanded the section foreman of said railway upon which said wreck occurred for not going over the track and inspecting the same on the morning of said wreck; that affiant did not converse with and has no recollection of speaking to said section foreman at all upon the day said wreck occurred; that after said wreck occurred affiant was told by the road master that said section foreman and his men had been over the road at that place on the morning before the wreck occurred, and that said road master said he had obtained such information by inquiry of said section men; that having the information aforesaid, affiant had no occasion to and did not reprimand said section foreman in that regard. Affiant further says that he left Dallas eri route to New York on the 12th day of .November, 1889, before the institution of this suit, and did not return to the State until the 3rd day of December, 1889, and was beyond the limits of this State and had no knowledge of the institution and pendency of this suit until after the trial thereof.”

The condition of the track and proper exercise of care by the appellant were vital issues in the case, and the evidence of the witness Warren tended to show an admission by the general manager of the road that one of the persons charged with its constant inspection and the keeping of that part of the road in good order had been so negligent as to call for reprimand from his superior.

The effect which such evidence would probably have is readily seen, and if appellant brought itself within the rules which authorize the grant *426 ing of a new trial on account of newly discovered evidence it should have been granted.

The materiality of the newly discovered evidence is manifest, and there is a reasonable probability that it might change the result on another trial; 'it came to the knowledge of appellant after the trial, and from its nature, if true, could not have been obtained on the trial by the exercise of a reasonable degree of diligence, and it is not cumulative. , We think the new trial should have been granted (Watts v. Johnson, 4 Texas, 319 ; Railway v. Forsyth, 49 Texas, 178 ; Wolf v. Mahan, 57 Texas, 171 ), and for the failure of the court to do so on the ground last noticed, its judgment, will be reversed and the cause remanded.

Reversed and remanded.

Delivered November 18, 1890.

Motion for rehearing was refused.