Smith v. International & Great Northern Railroad (45 Tex. Civ. App. 81, 1907)

EIDSON, Associate Justice.

This suit was brought in the court below by appellants, the widow and minor children of Edwin O. Smith, deceased, against appellee to recover damages for the alleged negligent killing of the deceased husband and father in the Mart yards of appellee, during an attempt to place a flat car upon a switch by the process of what is called “kicking.” The trial in the court below before a jury resulted in a verdict and judgment in favor of appellee, and appellants have perfected an appeal to this court.

We do not think there was any error in the action of the court below complained of in appellant’s first assignment of error. The witness sought to be impeached by showing his testimony on the former occasion was different from that on his direct examination on this trial, on cross examination, in effect, admitted his testimony on the former occasion to have been as appellants claimed, and swore that it was true. Hence appellants could not have been in any wise injured by the court’s not permitting them to read in evidence the former testimony of the witness.

Appellant’s second assignment of error complains of the failure of' the court below to exclude a portion of the answer of the witness O’Toole to an interrogatory propounded to him by appellants. The answer of the witness was as follows: