City of Waco v. Odle

Court of Appeals of Texas

City of Waco v. Odle

257 S.W. 310

CourtCourt of Appeals of Texas

DecidedNovember 1, 1923

DocketNo. 12. [fn*]

StatusPublished

This text of 257 S.W. 310 (City of Waco v. Odle) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Waco v. Odle, 257 S.W. 310 (Tex. Ct. App. 1923).

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Opinion

BARCUS, J.

Appellee sued the city of Waco for damages which she claimed to have suffered by reason of having fallen on a defective sidewalk in the city of Waco, and thereby sprained her ankle.

The court erred in permitting the appel-lee, over objections made by appellant, to prove by herself and her mother that appel-lee was a. hard-working girl, and was taking care of her mother, her little sister, and invalid father, and in permitting counsel for appellee, in his argument to the jury, over appellant’s objection, to comment on said facts, and to eulogize appellee in most glowing terms for taking care of her father, mother, and sister.

This testimony and the argument of counsel for appellee were highly prejudicial. Missouri, K. & T. Ry. Co. of Texas v. Hannig, 91 Tex. 347, 43 S. W. 508; T. & P. Ry. Co. v. Harrington, 62 Tex. 601; Railway Co. v. Lyde, 57 Tex. 505; City of Belton v. Lockett (Tex. Civ. App.) 57 S. W. 687; Gulf, C. & S. P. Ry. Co. v. Johhson, 99 Tex. 337, 90 S. W. 165; Dallas Ry. Co. v. Summers, 48 Tex. Civ. App. 474, 106 S. W. 891; Missouri, K. & T. Ry. Co. of Texas v. Thomas, 63 Tex. Civ. App. 312, 132 S. W. 974; St. L. S. W. Ry. Co. v. Kimmey (Tex. Civ. App.) 189 S. W. 550; Burrell Engineering Co. v. Grisier (Tex. Civ. App.) 389 S. W. 102; Trinity & S. Ry. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389; Wichita Falls & W. Ry. of Texas v. Asher (Tex. Civ. App.) 171 S. W. 1114.

In the case of Missouri, K. & T. Ry. Co. of Texas v. Hannig, supra, the Supreme Court, speaking through Chief Justice Gaines, said:

“The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence. Since it does not so appear with reference to the testimony in question, the judgment must be set aside, and a new trial awarded.”

The other assignments of error presented by appellant show no reversible error. Por the error indicated, this cause is reversed and remanded.

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BARCUS, J.

Appellee sued the city of Waco for damages which she claimed to have suffered by reason of having fallen on a defective sidewalk in the city of Waco, and thereby sprained her ankle.

The court erred in permitting the appel-lee, over objections made by appellant, to prove by herself and her mother that appel-lee was a. hard-working girl, and was taking care of her mother, her little sister, and invalid father, and in permitting counsel for appellee, in his argument to the jury, over appellant’s objection, to comment on said facts, and to eulogize appellee in most glowing terms for taking care of her father, mother, and sister.

This testimony and the argument of counsel for appellee were highly prejudicial. Missouri, K. & T. Ry. Co. of Texas v. Hannig, 91 Tex. 347, 43 S. W. 508; T. & P. Ry. Co. v. Harrington, 62 Tex. 601; Railway Co. v. Lyde, 57 Tex. 505; City of Belton v. Lockett (Tex. Civ. App.) 57 S. W. 687; Gulf, C. & S. P. Ry. Co. v. Johhson, 99 Tex. 337, 90 S. W. 165; Dallas Ry. Co. v. Summers, 48 Tex. Civ. App. 474, 106 S. W. 891; Missouri, K. & T. Ry. Co. of Texas v. Thomas, 63 Tex. Civ. App. 312, 132 S. W. 974; St. L. S. W. Ry. Co. v. Kimmey (Tex. Civ. App.) 189 S. W. 550; Burrell Engineering Co. v. Grisier (Tex. Civ. App.) 389 S. W. 102; Trinity & S. Ry. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389; Wichita Falls & W. Ry. of Texas v. Asher (Tex. Civ. App.) 171 S. W. 1114.

In the case of Missouri, K. & T. Ry. Co. of Texas v. Hannig, supra, the Supreme Court, speaking through Chief Justice Gaines, said:

“The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence. Since it does not so appear with reference to the testimony in question, the judgment must be set aside, and a new trial awarded.”

The other assignments of error presented by appellant show no reversible error. Por the error indicated, this cause is reversed and remanded.

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