Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-30
COURT OF APPEALS.
Full Text Of Decisions Rendered in The Fort
Worth District.

NVuV Nl civil ulINblA n lINi 'inttiNit -
ID. Tarton, chief Justice; II. q. Head
and T. w. Stevens, associate Justices;
w 4. Hun, clerk
No All The Fort Worth aud Denver
city Railway company. Appellant, Va
Robert Thompson, Appellee. Appeal
from The district court of Tarrant
county
OPINION.
Including findings OF fact and conclu-
siuns of ldwJ
Thc appellee, Robert Thompson sus
tnined The personal injuries on account
of which he brought this suit. while lac
was IN the employ of appellant railway
company as ar engineer aud at a point
ON appellants line OF railway about three
miles northwest OF Henrietta. Clay
County. Texas. ilc was at the time ut
the injury on April 81, 1885 engaged In
propclling back wards. with tender in
front the engine of which be was in
charge with two cahoOses. II was dc.
rallied, PLAINTIFF being seriously scolded
aud bruised The evidence iusuhps two
conclusions which. In our opinion, the ver-
dict of the jury imports. namely: lst
That the injuries were due 10 low
joint Iva the line of defendant railway
caused boy the negligence of the company
iu faiiiug to properly Inspect and r,pnir
it, track 2ud. That the plaiuuh was
not guilty of cbntributOry negligence as
charged by appellant in running the
engine OF dangerous aud reckless
speed.
Appellant frst assigns as error the ac-
ton Of the court In excluding The pVi-
dpuCe of the witnps Ford. bt whom "
offered to- prove thnt IAN engine with
tender I'm front and two cuboOsoF IN the
condition " this train could not br run
with safety with q greater rate of speed
than ten or fifteen miles per hour
This Witness wbs q lawyer 10y probes
siuu and had been engaged as q claim
agent for the defendant company. Willie
thus engaged he posted himself thor
uughly gs 90 the construction of engines
watched them I'm the shops questioned
the engineers about them and noticed the
effects Of the speed of train He was
in the habit Of riding on the engines
perhaps two-thirds Of his time with the
engineers and other railroad bows and
would fire for them and frequently ruu
their engines When asked as to HIS
ability to testify regarding the compare
tive safety uf running mi engine hnck
wuul, lac answered: ~ can only answer
FROM my conversations with engineers
and mechanics aud the results ! have
seen from running at a high rate oi
speed
We are not prepared to sny that the
trial court erred m declining to consider
this witness as 0u expert with reference
10 the subject about which he was called
20 testify. He docs not appear TO have
hccn educated iu This business, or 10
have amy special knowledge uud skill
m the particular calling to which The
inquiry relates lCiOldstein vs.. Black
80 cal. 1921
u its second assignment of error np-
peluut complains that the court erred
In refusing 10 permit it to prove by the
witness J G.. Wilkins, conductor of the
train 40 the time Of the injury, that
Ordinarily the defendant keeps ii- trnck
n good condition" This language. a.
wc interpret 3D., imports thut the COM
pany Rs iu the habit of keeping it, track
iu good condition. The court correctly
held such evidence 10 boz immutpriul
Another porSDu OF the bin of exceptions,
rtisiug Ibis assignment Indicates thut the
purpose of appellants counsel might have
bpen 90 prove that the defendant cNur-
riscd ordinary care I'm building mp low
joints and ne Keeping it's track in good
condition To this end ihp witness was
asked To state whether or not the dplou-
duut w1s ordinarily careful in building
MP low joints aud In keeping It's track
iu good condition. The answer to this
question. in our opinion, could but
have expressed the opinion OF the wit
ness as lao the exercise ul ordinary care
by he defendant The question of Ordi-
nary care vol non BIS one peculiarly OF
fact To- be- determined hy the jury and
not of opinion tO hc fixed 10y the witness.
The general rule applies here chat
"vitneasps must testify tu facts and not
Co opinions 1--WE do not think thnt
appellant ciu reasonably complain OF the
action of the court iu permitting the
appellee 10 prove that fast mail trains
ON Well hulluStoJ roads could run safely
Ht the rate OF sixty miles ana hour We
think, IN am Inquiry of this kind, iuvolN-