Cunningham v. Austin & Northwestern Railway Co.

DENMAN, Associate Justice. —Appellant seeks to recover damages for the death of her husband, James Cunningham, a conductor on one of appellee’s trains, caused by a wreck occasioned by the *536 breaking of a car wheel on a car running from Llano to Austin,, on the 22nd day of December, 1892. The petition charged the negligence to consist in the fact that the wheel had a crack or flaw in it, which was known to appellee, or could have been known by the use of ordinary care; and that appellee’s car inspector (Rownie) at Llano, whose dtity it was to carefully inspect wheels before the same left Llano, was incompetent to perform the duties required of him, and that on the day of Cunningham’s death he did not inspect said wheel, as was his duty. There was testimony tending to show that there was an old crack in the wheel, and that it could have been discovered by an inspection made by a competent inspector. The witness Rownie, for defendant, testified, that he inspected the wheel on the morning of the accident, at Llano, he being the only inspector on the road outside of Austin, and during the time inquired about hereafter, and it being his duty to inspect the cars at Llano on said dates, and that at the date of such inspection he could discover nothing wrong with the wheel. On cross-examination the witness Rownie testified, that the reason he said he inspected it on December 22nd was because he understood the accident was on that date, and because he inspected that car every day it was in Llano, and that he did not think there was any other reason for his remembering it, only that he knew he inspected it every day; that he knew it was 7 o’clock that he looked over the coach on that morning, because that was the hour he always went to work. Counsel for appellant thereupon asked the witness whether he inspected the cars at Llano on the 23rd and 27th days of December, 1892; January 6, 1893; February 21, 1893; March 9, 1893, and April 4, 1893, all subsequent to the date of the accident; counsel stating, that the object of the question was to prove by Rownie that on said dates he had not inspected the wheels of appellee’s trains at Llano, and if he stated that he had inspected them on any one or all of the above dates, then to offer witnesses who would testify that he did not inspect them on either of said dates. Counsel for appellee objected to this testimony as being incompetent, irrelevant, and immaterial, and not tending to prove any issue in the case, and that, since appellant was seeking to recover for an injury inflicted on the 22nd of December, 1892, anything that Rownie may or may not have done after that date was wholly irrelevant and immaterial, and that on such , matters the witness could not be impeached. The court sustained the objections, and refused to allow the questions. Under the circumstances stated above, the Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the question: “Did the District Court err in sustaining the objections aforesaid, and excluding the testimony referred to?” *537 If there were no issue in this case as to Bownié’s competency, we are of the opinion that there would be no causal connection between the negligence of Eownie on days subsequent to the injury and the. death of Cunningham. Such subsequent neglect of duty to inspect cars might raise a moral probability that he failed to inspect the car on the morning of the accident, but such probability alone would not connect such negligence with the chain of circumstances resulting in the death. In order to prevent confusion and surprise in the trial of causes of this character, courts have, as a general rule, confined the evidence to circumstances tending to establish facts constituting links in the chain of circumstances having a causal connection with the injury. The pleadings and evidence, however, raise the issue as to Bownie’s competency as a car inspector, which involves, first, his skill, and second, his attentiveness to duty. If he was lacking in any of these qualities, he could not be said to be competent to perform the important duties required of him. It is a matter of common knowledge that some persons are by nature inattentive, or thoughtless, and, as a result thereof, frequently neglect the performance of important duties, •without any intention so to do. This mental quality can only be evidenced by the outward acts of the person, and where its existence or nonexistence is in issue, evidence of such acts is admissible. If Eownie was an inattentive or thoughtless person, such mental quality was a relevant fact upon the issue as to whether he probably inspected the cars on the particular morning of the accident; and this is particularly true, since his testimony disclosed that one of his reasons for knowing that he inspected the wheel was the fact that he invariably performed that duty before the car left Llano. - Thus it seems that frequent failures to perform this duty at different times would be competent evidence, tending to prove this mental condition, and we see no reason why such omissions subsequent to the time of the accident would be less competent than similar omissions prior to the time of the accident. In the case of Frazier v. Railway, 38 Pennsylvania State, 104, one of the issues being negligence of the company in employing a careless conductor, “the plaintiff offered to prove by the conductor that he had had several collisions on the road before, for which he was fined by the company, and that the agents, etc., of the company knew this; that the former collisions were caused by his carelessness; that they were known to the company, and were so treated by them.” Defendants objected, on the ground that previous acts of negligence are not matters for the jury as to general character, and the court below having admitted the evidence over such objection, the Supreme Court held it error, using the following language: “The question of character thus became an important one, and we are constrained to say that it was tried on improper evidence. Character for care, skill, and truth of witnesses, parties or others, must all alike be proved by evidence of *538 general reputation,' and not of special acts. The reasons for this have been so often given, that we need not repeat them. 1 Greenl. on Ev., secs. 461-469; 7 Casey, 67. Character grows out of special acts, but it is not proved by them. Indeed, special acts do very often indicate frailties or vice that are altogether contrary to the character actually established. And sometimes the very frailties that may be proved against a man, may have been regarded by him in so serious a light as to have produced great improvement of character. Besides this, ordinary care implies occasional acts of carelessness, for all men are fallible in this respect, and the law demands only the ordinary.” • We are not disposed to follow this case. The citation from Mr. Greenleaf refers to methods of attacking the character of a witness, which is an incidental question, affecting merely his credibility. The question here is the existence or nonexistence of a mental condition or quality of the servant, inattentiveness or thoughtlessness, rendering him incompetent, such incompetency being direct evidence on the main issue in the case. We see no reason why specific acts can not be given in evidence upon such issue, just as they could upon the issue of testamentary, or contractual capacity. Brown v. Mitchell, 87 Texas, 140. We are aware of the fact that the Pennsylvania case above cited was referred to, without approval or disapproval, in the case of Railway v. Scott, 68 Texas, 694, and that such reference was treated by Judge Marr as a strong intimation of approval thereof, in Railway v. Rowland, 82 Texas, 171. We are of the opinion that appellant had the right, for the purpose above indicated, to show if he could, on cross-examination of the witness Bownie, that he had neglected to perform the duty of inspection at the times indicated above. The State v. Railway, 52 N. H., 528. Independent of the questions and issues above discussed, we are further of the opinion, that appellant had the right to propound and have answered the questions above stated, for the purpose of testing the memory of the witness. This is especially true when we consider, as above indicated, that the witness did not appear to have a positive recollection of the fact of inspecting the cars on the particular morning, but seemed to rely largely upon the fact that it was his duty to do so, and that he knew he invariably performed such duty. It maybe objected, that the bill of exceptions did not show definitely what answer the witness would have-made to the questions, had he been permitted to answer. The general rule is, that in order to entitle a party to a revision of the ruling of the lower court in refusing to allow him to propound a question to a witness, he must show what answer he expected to elicit, in order that the court may see that he has been deprived of. legitimate evidence. This rule applies mainly to a case where a party is seeking to introduce original evidence, the nature of which he should be expected to know before he offers the same, and is not applicable to a case where the party is cross-examining the witness of his *539 adversary, with whose knowledge of the case he is not supposed to be familiar. Delivered June 20, 1895. In this class of cases we think the better rule is, that if the question appears on its face to be calculated to elicit competent testimony, it is error to refuse the same, although counsel may not be able to state to the court the answer intended or expected to be elicited. To exact, such a statement would be to require counsel either to speculate upon the answer of an adverse witness, or deal unfairly with the court. Harness v. The State, 57 Ind., 1; Hutts v. Hutts, 62 Ind., 225; O’Donnell v. Segar, 25 Mich., 367; 1 Thomp. on Trials, sec. 680. It results, from the principles expressed above, that we must answer the question propounded in the affirmative.