Galveston, Harrisburg & San Antonio Railway Co. v. Morris

WILLIAMS, Associate Justice. In passing upon the application for writ of error in this case, we were of the opinion that all of the questions of law raised in the Court of Civil Appeals had been correctly disposed of save two, viz., those raised upon the refusal of the District Court to suppress the depositions and to give requested charge number 5. 1. The interrogatories and notice under which the depositions were taken gave the names of the witnesses as Herman Walters and Mrs. Herman Walters, while the depositions returned were those of Herman Walter and N. E. Walter. The only explanation given -by the trial judge of Ms refusal to sustain the motion to suppress was that it was shown that Mrs. Herman Walters and Mrs. N. E. Walters is one and the same person and that she was the wife of Herman Walters, residing at the place given in the notice and interrogatories as the residence of the witnesses interrogated. Hnder the decision in the case of Faver v. Robinson, 46 Texas, 204, it would seem that there is a material difference between the name Walters and Walter, and, since the statute (article 2274, Revised Statutes) contains" the requirement which must be substantially observed, that the notice of an intention to take depositions shall give the name of the witness, it would seem to follow that the depositions in question were not legally taken and were not admissible, unless it was shown that the purpose, of the law had been substantially met. This, we thought, was not done by showing -only that the witnesses who testified were the persons whose depositions were intended to be taken. One purpose of the statute is to enable the party against whom the deposition is to be used to identify the witness at the time when the notice is served, and the only information by which this is ordinarily done is the name and residence given. If a wrong name is given, we think that, in order to obviate the effect of the mistake, it should appear that the party was not misled or prejudiced by it, but in fact knew what witness was intended. The explanation of the trial judge on which we acted in granting the writ does hot show such facts, but a further examination of the record discloses that both Herman Walter and N. E. Walter had testified at a previous trial of the case and the cross-interrogatories propounded by plaintiff in error show that its counsel knew that the persons whose depositions were to be taken were the ones who had so *509 testified. Under these circumstances, the motion to suppress their depositions was properly overruled. Jones v. Ford, 60 Texas, 131. 2. Special charge number 5 was as follows: “If you believe from the evidence that the plaintiff was injured as alleged, but that at the time of the injury he was in the act of attempting to get upon the train while it was in motion, or was in the act of getting from the train while it was in motion, and that at such time said train was moving so .rapidly that the plaintiff endangered his person in so attempting to get off or on the train, and that an ordinarily prudent person under the same or similar circumstances would not have made such an attempt as was then made by plaintiff, and that such conduct of plaintiff directly contributed to his injury, then in such event plaintiff can not recover, and you will find your verdict in favor of the defendant.” This sought only to have the act of plaintiff in getting on or off the train submitted as an act of negligence. The contention of fact to which it was directed was that plaintiff was not hurt by being thrown from the car by a sudden jerk thereof, as claimed by him, but was injured while engaged in jumping on and off the train in motion. The charge of the court gave full definitions of negligence and contributory negligence, and instructed that “when an injured person is guilty of contributory negligence he can not recover for the injuries even though the party inflicting the injury was also guilty of negligence.” This was immediately followed by this instruction: “Whether or not there was negligence on the part of the defendant in this case, or its agents or servants, in the operation and control of its train, and failure to furnish seats for its passengers, if such was the fact, and this fact was that which caused the injuries to the plaintiff, if such was a fact; or whether there was negligence on the part of the plaintiff which contributed to his own injuries by riding on the platform or by jumping on and off the train at night while it was in motion, if such was so; or whether plaintiff knew the platform was a more dangerous place than the inside of the car; and whether or not plaintiff was a youth of such immature judgment and discretion that he was unable to understand the nature and extent of the peril to which he was exposed, under the circumstances as shown by the evidence, are questions of fact for you to determine from the evidence in the case.” Together, these instructions not only gave the law in the abstract but directly applied it to the evidence relied on by both plaintiff and defendant, and they were a sufficient compliance with the rule which requires that the facts relied on to establish a defense shall be affirmatively presented by "the court upon proper request. The differences between the general charge and the requested instruction are merely in arrangement and verbiage. They state in substance the same proposition. Affirmed.