
    Galveston, Harrisburg & San Antonio Railway Company v. Charles Porfert.
    No. 55.
    1. Cross-Examination of Witness. — A plaintiff testified for himself upon a second trial in an action for personal injuries inflicted by a train running upon him when driving a wagon and crossing the track. He made a materially different statement from that made on the former trial as to the distance the train was from the crossing when he noticed its approach. On cross-examination it was reversible error to refuse the following question: “ Have you not made a different statement in your testimony on this trial as to the distance the train was from you when you first saw it, from the statements you made in your testimony on the former trials of this case, by reason of the Supreme Court having reversed the case and you having seen the grounds upon which the case was reversed ?” The witness had admitted having read the opinion of the Supreme Court holding him guilty of contributory negligence upon his own testimony as to the distance the train was from him when he saw it.
    2. Verdict — Personal Injuries. — In a railway collision plaintiff had his leg broken, thigh and ankle injured, was confined from injuries eleven months in hospital, crutches were necessary for a year longer, and permanent lameness remained. Held, a verdict for $7250 is not excessive.
    Appeal from Bexar. Tried below before Hon. G. H. Noonan.
    
      Upson & Bergstrom, for appellant.
    1. The plaintiff having testified that his statement on this trial was different from his statement on the former trials of this case as to the distance the train was from him when he first saw it, and having in answer to the question, “ Have you read the opinion of the Supreme Court reversing this case?” said, “ Yes, I have,” the court erred in not permitting defendant’s counsel to ask the plaintiff the following question: “ Have you not made a different statement in your testimony on this trial as to the distance the train was from you when you first saw it, from the statements you made in your testimony on the former trials of this case, by reason of the Supreme Court having reversed the case and you having seen the grounds upon which the case was reversed ? ’ ’ because said question was legitimate for the purpose of showing plaintiff’s motive in making such different statements, and thereby to discredit his testimony. 39 Am. and Eng. Ry. Cases, 144, 145, and note; Railway v. Balthasar, 17 Atl. Rep., 518.
    2. The verdict is excessive, showing that the jury were prejudiced against the defendant. It is otherwise not sustained by the evidence; it is rather against the testimony. Railway v. Spicker, 61 Texas, 427; Railway v. Foreman, 73 Texas, 311; Bohan v. Railway, 19 Am. and Eng. Ry. Cases, 276; Railway v. Cadow, 6 Am. St. Rep., 730; Railway v. Townsend, 39 Kans., 115; Railway v. Houston, 95 U. S., 697; Haas v. Railway, 8 Am. and Eng. Ry. Cases, 268.
    
      J. H. McLeary, for appellee.
    1. The mode attempted on cross-examination of the plaintiff was not a proper mode in which to get the opinion of the Supreme Court before the jury. Nor was it a proper method of discrediting the plaintiff’s testimony. McClelland v. Fallon & Lehr, 74 Texas, 237; Railway v. Helm, 64 Texas, 147; Ross v. Kornrumpf, 64 Texas, 393.
    2. The verdict is not only not excessive, but quite reasonable in amount. Railway v. Kirk, 62 Texas, 233; Railway v. Randall, 50 Texas, 261; Galveston v. Posnainsky, 62 Texas, 135; Railway v. Garcia, 62 Texas, 285; Railway v. O’Donnell, 58 Texas, 44; Railway v. Brett, 61 Texas, 488; Railway v. McAtee, 61 Texas, 698; Brooke v. Clark, 57 Texas, 113; Railway v. Pinto, 60 Texas, 516; Railway v. Boehm, 57 Texas, 155; Oil Co. v. Malin, 60 Texas, 651; Railway v. Simpson, 60 Texas, 107; Railway v. Woodall, 2 Ct. App. C. C., sec. 478; Filer v. Railway, 49 N. Y., 42; Walker v. Railway, 63 Barb., 260; Frank v. Railway, 2 La. Com., 25; Railway v. Stewart, 57 Texas, 171; Railway v. Dawson, 62 Texas, 262; Add. on Torts, secs. 1382, 1397; Finer v. Dant, 8 Cow., 605; Ornala v. Railway, 38 N. Y., 455; Pike v. Doyle, 19 La. Ann., 362; 2 Ct. App. C. C., secs. 189, 488.
   FISHER, Chief Justice.

This suit was instituted in the District Court of Bexar County, by appellee, against appellant, to recover damages for she alleged negligence' of appellant in running an engine operated by its servants against him while he was attempting to cross the railway at a crossing, thereby severely and permanently injuring him.

Defendant answered by general denial, and that appellee was guilty of contributory negligence.

Verdict and judgment were in favor of appellee for $7250.

The second error assigned is as follows: “ The plaintiff having testified that his statement on this trial was different from his statement on the former trials of this case as to the distance the train was from him when he first saw it, and having in answer to the question, 1 Have you read the opinion of the Supreme Court reversing this case ?’ said, ‘ Yes, I have,’ the court erred in not permitting defendant’s counsel to ask the plaintiff the following question: ‘ Have you not made a different statement in your testimony on this trial as to the distance the train was from you when you first saw it, from the statements you made in your testimony on the former trials of this case, by reason of the Supreme Court having reversed the case and you having seen the grounds upon which the case was reversed ?’ because said question was legitimate for the purpose of showing plaintiff’s motive in making such different statements, and thereby to discredit his testimony.”

The former opinion of the Supreme Court in this case reversed and remanded the case for the reason that it appeared from the facts, as then shown, that the appellee was guilty of contributory negligence in not getting off the railway track before he was hit by the locomotive, it appearing that he saw the approach of the engine, and that at such time it was such a distance from him as would have enabled him to leave the track before it reached him, and his failure so to do constituted negligence upon his part.

The testimony of the appellee in the present case upon this point tended to show, that the locomotive was much nearer to him when he first observed it than testified to in the former trial; and that the locomotive being so near and coming with such speed, he did not have time, by the use of diligence, to leave the track before he was struck.

If it be true that the appellee was induced to make this change in his evidence, and to testify upon the second trial differently from what he had testified to on the former trial, about a matter of such importance, by reason of the decision of the Supreme Court referred to, then we believe it was permissible for appellant to prove the fact. The effect of such evidence would be to show the motive of appellee in changing his evidence to be that he was not guilty of the act denounced by the Supreme Court as fatal to his right- of recovery. And it would be a legitimate inference that the jury might consider with other facts in the case that his purpose in testifying differently was to make a case that would meet the objections of the decision rendered in reversing the former judgment. It would be also admissible as a fact or circumstance tending to discredit the appellee, to be considered by the jury for what it may be worth. We think the evidence was admissible.

Delivered December 21, 1892.

There is no merit in the remaining assignments of error.

The facts of this case are in several essentials different from those developed in the former trial, and we can not say that the evidence shows that appellee was guilty of contributory negligence, and will not disturb the verdict for this reason.

As to the°point that the verdict is excessive, that has been settled adversely to the contention of appellant by the judgment of the Supreme - Court in the first appeal of this case. 72 Texas, 344.

For the error in refusing to permit appellant’s counsel to ask the appellee the question as heretofore stated, upon the trial, we reverse the judgment and remand the cause.

Reversed and remanded.  