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the same would remain out of motion and at a standstill until it should be put in motion by intelligent design and by means of shifting the belting from the loose to the tight or immovable pulley as aforesaid; but plaintiffs charge that by reason of the fact that some of these attachments were defective and out of repair, improperly hung or loose in some parts thereof, that the belting after it had been removed by the said Richard Finley Haden from the tight pulley onto the loose pulley, and while he was engaged in changing the gearing of said lathe machine, that the said belting by means of some defect in the attachments and apparatus of the machine as aforesaid, was shifted and said machine suddenly started in operation unexpectedly to the said Richard Finley Haden, without any act on his part putting said machine in motion, and without any act on the part of any other person putting said machine in motion, and that the said machine starting into motion under said circumstances was the result of defects in the apparatus and appliances, and that the defendant company was guilty of negligence in furnishing to said Richard Finley Haden machinery so defective and which was dangerous and subjected him to unnecessary peril in the faithful and careful discharge of his duties as employe of the said defendant. That the specific defects in said machinery are unknown to plaintiffs, and for this reason they can not more particularly allege such defects in the machinery." We are of opinion that the alleged defects in the machine and its appliances were averred with all the particularity which ought to be required in this
The situation of plaintiffs precluded them from making more specific allegations, and those made were sufficient to inform the defendant, with reasonable certainty, of the facts which were relied on to show negligence. The allegations concerning the manner in which the accident occurred and the principle upon which the machinery was constructed and operated, showed that the accident was attributable to some defect in the machine, or its appliances, which were unknown to Haden, and which the plaintiffs could not ascertain more definitely than was stated in their petition. The machinery was in the possession and under the control of defendant. The demurrer was properly overruled. Railway v. Brinker, 68 Texas, 500.
Appellant contends that the evidence is not sufficient to show that the machine or its appliances were defective, or, if defective, that it was chargeable with negligence on account of the machinery being in such condition. The evidence shows that when such machine was properly constructed and in proper repair, the operator thereof could, when he desired to do so, bring the same to a standstill by shifting the belt onto the loose pulley; that when a machine so constructed and in good repair was properly stopped by the operator it would remain at a standstill until started by some one; that by the use of ordinary care such machine and its appliances could be kept in good condition. The evidence warrants the further conclusion that on the occasion of the acident Haden properly shifted the belt, and that the machine was not started in motion by any act of his or by a failure on his part to use due care
in stopping the machine or in working with it after it was stopped. The machine was not started by the act of any other person. It could have been started in motion by only two causes, (1) the failure of Haden to properly shift the belt, and (2) some defect in the machine or its appliances. The verdict of the jury, which is sustained by the evidence, excludes the theory that it was started in motion by reason of Haden's want of care in shifting the belt, and it inevitably follows that the moveing cause was some defect in the machinery. The evidence warrants the finding that the injury to Haden was caused by the negligence of appellant. Railway v. Lauricella, 87 Texas, 279; McCray v. Railway, 89 Texas, 170; Railway v. Wood, 63 S. W. Rep., 164; Railway v. Johnson, 65 S. W. Rep., 388; Thiel v. Kennedy, 84 N. W. Rep., 657; Hewser v. Railway, 30 Atl. Rep., 907; Railway v. Cooper, 38 Law. Rep. Ann., 637. To the same effect are the cases of Railway v. Bailey and Street Railway v. Broadhurst, recently decided by this court and not yet reported.
Appellant introduced evidence tending to show that it had used due care to keep the machinery in good repair The inspector testified that he had continually looked over it and discovered no defects therein. It is significant, however, that he admitted that he did not make a minute special inspection of it. He appears to have daily looked at the machine when it was in operation, and, observing no defect, concluded that it was in good condition. An examination of the shafts, pulleys, belt, and shifter, with a view of ascertaining whether the same were in proper condition and repair, as regarded the starting and stopping of the machine, appears not to have been made. The evidence warrants the conclusion that appellant, by the exercise of ordinary care, could have discovered the defect and remedied same in time to have averted the accident.
Appellant contends that under the uncontradicted evidence it ought to be held, as a matter of law, that Haden assumed the risk which occasioned his injury. The evidence shows that the machine and its appliances were open to the view of the operator thereof, and that Haden had worked as operator about seven weeks. He understood the operation of the machine and did not know of any defect therein. The company's inspector, who should have known more than anyone else of the condition of the machinery, did not discover the defect. It seems that the defect was of such a character as required an inspection, made for the purpose of ascertaining the condition of the machinery, to disclose its existence. The duty of inspection rested upon the company and not upon Haden. The jury was justified in finding that Haden did not know of the defect and never assumed the risk, and that the company ought to have discovered the defect and was guilty of negligence in not doing so and in failing to repair the machinery. Appellant owed to Haden the duty to use ordinary care to have the machinery with which he was required to work in a reasonably safe condition, and he had the right to assume that the duty had been performed.
The appellees took and used the deposition of John Hogg. On cross
examination he stated that Haden told him before the accident that the machine would start up occasionally and that he (Haden) had asked Strehorn, the inspector and foreman of the shops, to have it fixed. Appellant insists that this evidence was not controverted and shows conclusively that Haden knew of the defect, and therefore assumed the risk. Strehorn testified that Haden never made any such complaint to him. This testimony tended strongly to impeach the credibility, or at least the recollection, of the witness Hogg. If Haden made the statement attributed to him by Hogg, and Strehorn is to be believed, then part of Haden's statement was gratuitously untrue. Such conduct on his part would be inconsistent with his character and actions. It was impossible for the appellees to prove by direct evidence that Haden did not make the statement to Hogg, as Haden was dead and there appears to have been no witnesses to the conversation except the parties to it. The only part of the statement which it was possible to contradict was that relating to the complaint made to Strehorn, and the fact that no such complaint was made was shown. None of the circumstances attending the making of the alleged statement to Hogg were proven. Evidence of the making of such statement under the conditions shown will be received with great caution. We think the trial court properly left the question to the jury for decision, and that the finding of the jury against the contention of appellant is conclusive.
The charge of the court fully and correctly submitted to the jury all the issues raised by the pleadings and evidence. We find no error in the judgment and it is affirmed.
Affirmed. Writ of error refused.
MISSOURI, KANSAS & TEXAS RAILWAY COMPANY V. J. C. DENTON.
Decided April 19, 1902.
Where the answers in a deposition were written out by the witness himself, those to the direct interrogatories being signed by him, while those to the cross-interrogatories were on a separate sheet, not signed, but fastened in with the others and all followed by the certificate of the officer that they were signed and sworn to before him, this was a sufficient signing as to all the answers. 2.-Same-Identification of Answers.
See depositions held to sufficiently identify the answers therein as the answers of the witness made before the officer, although the officer certified that he reduced the answers to writing, and the witness stated in reply to one of the interrogatories that he wrote the answers himself when no one was present. 3.-Same—Answers Not Written Before Officer.
The witness having assented to the answers by swearing to them before the officer, the fact that they were reduced to writing by him out of the officer's presence was not ground for quashing the deposition.
Appeal from Grayson. Tried below before Hon. Rice Maxey.
T. S. Miller and Head & Dillard, for appellant.
Wolfe, Hare & Semple, for appellee.
BOOKHOUT, ASSOCIATE JUSTICE.-J. C. Denton on the 29th day of May, 1901, filed his petition in the District Court of Grayson County, Texas, against the Missouri, Kansas & Texas Railway Company of Texas to recover damages on account of injuries alleged to have been inflicted on him on the 12th day of November, 1900. He pleaded that he was a passenger on a train northward bound from the city of Sherman to the city of Denison, and that at a point about a mile north of the former city his train, through the negligence of the defendant, collided with a south-bound freight train and inflicted upon him the injuries on account of which he sued. The case was tried before a jury and resulted in a verdict and judgment for plaintiff for $1800, from which judgment this appeal is taken.
1. It is contended that the court erred in not quashing the deposition of the witness A. Slack for the reasons: (1) What purports to be the answer to the cross-interrogatories are not signed by the witness, (2) The certificate of the officer who took the deposition is not in compliance with the law. (3) The certificate of the officer who took the deposition does not sufficiently identify the answer of the witness, which he certifies were made, signed, and sworn to before him. (4) The witness failed to answer cross-interrogatories which are material. (5) The answers of the witness were not made or reduced to writing in the presence of the officer, but were written out by the witness himself before the officer saw the interrogatories and in his absence. Appellant made a motion to quash said deposition on the grounds substantially above set forth, which motion was overruled. It was made to appear upon the hearing of said motion that the answers of said witness, both to the direct and cross-interrogatories, were in the handwriting of the witness A. Slack himself, and that said interrogatories had been sent by plaintiff direct to said witness and he had written his answers thereto himself in his own office and not in the presence of the officer, and had then taken the answers so prepared and sworn to them before the notary public. It was also made to appear to the court that the answers to the direct interrogatories were written on one sheet of paper and signed by the witness, and what purports to be the answers to the cross-interrogatories were written on another sheet of paper and are not signed by the witness, but that they were attached with counting house paper fasteners. The caption of said answers, after giving the number and style of the case and the court in which it was pending, proceeds as follows: "Answers and depositions of Dr. A. Slack to the accompanying interrogatories propounded to him in the above entitled and num
bered cause, taken before me, J. W. Trew, notary public, in accordance with the accompanying commission.” Then follows the answers to the direct interrogatories, at the end of which appears the signature of the witness. Then follows a caption giving the style of the suit and the court wherein the same was pending, and proceeds as follows: "Answers to cross-interrogatories propounded by defendant to plaintiff's witness, Dr. A. Slack, of Cog Hill, Tenn.” Then follows the answers to the cross-interrogatories. The answer to the last cross-interrogatory is: “I have written my answers myself in my office in Cog Hill, Tenn. No one present.” The answers to the cross-interrogatories are not signed. Then follows the certificate of the notary as follows: "State of Tennessee, County of McMinn: I, J. W. Trew, notary public, do hereby certify that by virtue of the accompanying commission, bearing date on the 19th day of June, 1901, issued out of the District Court of Grayson County, Texas, in cause No. 13353, wherein J. C. Denton is plaintiff and M. K. & T. Ry. Co. is defendant, I caused to come before me at my office in Dentville, Tenn., Dr. A. Slack, the witness named in said commission, on the 19th day of August, 1901, and propounded to said Slack the direct and cross-interrogatories accompanying and attached to said commission, and reduced his answers to writing, and the answers so taken were signed and sworn to by said witness before me.
Witness my hand and official seal this the 19th day of August, 1901. [Seal.] J. W. Trew, Notary Public.”
The statute requires that the answers of a witness to a deposition must be signed and sworn to by the witness. The statute must be substantially complied with. Carroll v. Welch, 26 Texas, 147; Railway v. Larkin, 64 Texas, 457. The statute does not require that the answers shall be subscribed by the witness. The question presented is, are the answers of the witness signed by him? It was said by Judge Stayton, speaking for the court in the case of Newton v. Emerson, 66 Texas, 146, that a deed or other instrument may be said to be signed whenever the name of its maker is so written upon it as to evidence his intention to give authenticity to it. In that case the instrument, including the signature of the maker, was entirely written by another, and it was held that by his acknowledgment before the county clerk he adopted and made his own every word including his name then upon the instrument. The answers in this case were written by the witness and his answers to the direct and cross-interrogatories were fastened together. The witness having signed his answers to the direct interrogatories, carried the same to the notary, where they were sworn to by the witness and the notary's certificate was attached thereto in the form above set out.
It fairly appears, by these acts, the witness intended to signify his assent to the contents of the answers to both the direct and cross-interrogatories and that his signature should constitute a signing of said answers. Rev. Stats., art. 2284; Newton v. Emerson, 66 Texas, 146; Alexander v. Baylor, 20 Texas, 560; Fulshear v. Randon, 18 Texas, 277; Moss v. Booth, 34 Mo., 316; Read v. Patterson, 11 Lea (Tenn.), 430.