Some of the questions involved in this case were certified to this court by the Court of Civil Appeals and the answers given may be found in Ninety-ninth Texas, at page 160. Those answers hold, in substance, that the facts stated in the certificate justified the trial court in submitting to the jury the questions whether or not the evidence established an implied permission from the defendant for the use of its track by pedestrians, and whether or not deceased was guilty of contributory negligence in walking on the track. The conclusion that there was evidence authorizing the submission of these questions ends all inquiry into them which this court is empowered to make.
It is contended that the evidence in the record now before us shows conclusively that deceased, when struck by the engine, was lying upon the track and not walking upon it, as was stated in the certificate upon which we formerly passed. The charge of the trial court submitted *Page 68 that question to the jury, telling them that plaintiffs could not recover if deceased was in fact lying upon the track. For this court to disturb the verdict for such a reason as this, it must be able to say that the evidence established the fact relied on so conclusively that the jury could not reasonably have found that it was not satisfactorily proved. This we can not say.
Another position taken by counsel for the defendant, a decision of which was not involved in our answers to the certified questions, is that the deceased, even when treated as a licensee walking upon the track, is conclusively shown to have been guilty of contributory negligence, in that the evidence shows that he could have walked outside of the rails and out of danger as conveniently as upon the track. If the fact thus assumed could be treated by us as shown beyond dispute, we should feel constrained to hold with the defense. An implied permission, such as is claimed, to use a railroad track as a footpath may relieve the person enjoying it of the imputation of being a trespasser, but it does not relieve the place of its inherent dangers, nor exempt the traveler from the duty to act with ordinary prudence. When he voluntarily chooses the dangerous pathway instead of a safe one beside it, we can see no escape from the conclusion that he is guilty of negligence, if there be no justifying or excusing circumstances.
The authorities upon the subjects are cited and discussed in the opinion of the Supreme Court of Kansas in the case of A.T. S.F. Ry. Co. v. Schwendt, 72 P. 573. See also Lewis v. G.H. S.A. Ry. Co., 73 Tex. 507, 5 Thompson on Neg., sec. 6247.
But the question as to the negligence of the deceased in walking upon instead of outside the track was submitted to the jury and found against the defendant. And here, as upon the other points, the power of this court is limited to the inquiry whether or not the evidence conclusively established the fact relied on; and we find that there is evidence that there was not space to walk between the track and the edge of the embankment sufficient to have put the deceased beyond the reach of passing trains. The question was therefore one for the jury.
The trial court excluded from the jury some of the evidence offered by the defendant in its attack upon the credibility of Andrews, one of the plaintiff's important witnesses, which we are of the opinion should have been admitted. As the chief question is as to its relevancy, which depends upon a rather exceptional state of facts, a somewhat detailed statement is necessary to show its bearing upon the issues in the case. For this purpose alone and not as a criticism of the witness' testimony nor the expression of an opinion as to the weight the impeaching evidence should have, the following statement is made. The testimony of Andrews was produced for the first time at the trial now under review, by several depositions taken in the summer and autumn of 1903, the death of plaintiff's husband, J.L. Matthews having occurred in Fort Worth in May, 1899, and the suit having been brought in Grayson County in September of the same year. There had been several trials of the cause and two appeals prior to the last trial. Upon the second appeal the Court of Civil Appeals of the Fourth District had reversed a judgment in favor of the plaintiff, holding that the evidence *Page 69 showed that Matthews was struck while lying upon the track and was therefore guilty of contributory negligence. That this was the case the evidence adduced by defendant in all of the trials tended to prove, while plaintiff attempted to show that Matthews, when struck, was walking on the track, in the exercise of a privilege to do so acquired by the public. As tending to support the defense by furnishing a reason for his lying upon the track, the question whether or not deceased was intoxicated became important; while the identity of Matthews with a person seen walking upon the track a few minutes before the train passed that killed Matthews was a circumstance essential to plaintiff's case, the Court of Civil Appeals having held that the evidence then in the record was not sufficient to show such identity nor to make an issue with defendant's evidence. Upon the question whether or not Matthews was drunk, evidence was introduced tending to show that at times he drank to the point of intoxication and that on the night before he was killed he was in that condition, and engaged a room in a hotel and left, saying he would return and occupy it, but did not do so; and, besides the testimony of Andrews, there is nothing to show his whereabouts or his condition until his body was found upon defendant's railway the next morning between six and seven o'clock, unless he was the person before referred to as walking upon the track. Andrews was clerk in another hotel and his statement, given with considerable detail, is in substance that about eleven o'clock of the night preceding the killing, a man, who gave his name as J.L. Matthews, engaged, paid for and occupied a room in the hotel for the night and, shortly before six o'clock next morning, left, going in the direction of some camping grounds near to defendant's railroad at the point where the body was found, to which witness, at his request, directed him. The witness stated that Matthews was then sober, and gave a description of him by size and dress which measurably corresponded with that which had been given by another witness of the person seen walking on the track and which, in the opinion of the Court of Civil Appeals on the present appeal, established that they were the same. The importance of his testimony is apparent.
The defense, by crossexamination and evidence offered, attempted to expose the statement of this witness as a fabrication. On crossexamination, the witness stated that he did not have Matthews to register at the hotel because he was drinking, but inquired for and got his name, in order to register it, and neglected to do so; that he heard the evening of the next day or the day after, of Matthews having been killed, and read an account of it in the newspaper, but, prior to his statement to plaintiff's agent referred to below, had never told his wife, the proprietor of the hotel, or any one else, of the facts stated, except that he had talked about it a few times with one F.W. Wilkinson. It further appears from his testimony that, at some time not shown, one Bell made some inquiry of him as to his knowledge of the matter, telling him that he was looking up evidence for plaintiff, and that he gave Bell no satisfaction and told him nothing. He gives his reasons for his silence, which, as their sufficiency will be a question for the jury and not for this court, need not be stated. He further *Page 70 testified that his first disclosure of the facts to plaintiff was made to another agent representing her, who came to Fort Worth and stopped at the lodging house kept by his wife four or five nights in August, 1903, in a conversation that came up between them about people being killed by railroads, which brought to his mind the case of Matthews. It further appears that during the same month interrogatories were propounded to him by plaintiff which, with the cross interrogatories of the defendant, were filed in the court at Sherman, where the cause was pending, and upon them the defendant took out a commission to Tarrant County, where the witness lived, for the purpose of having his answers taken; that, on the same morning and after this commission was issued, the witness received a telegram from the agent of plaintiff, who had obtained his statement and who was at Sherman, requesting the witness to go to Dallas and call him (the agent) up; that he left for Dallas at twelve o'clock, spent the evening there and talked to the agent over the telephone, all that the latter said being that the defendant had obtained a commission to take his deposition and that he might as well return as they would take his deposition any way, and that plaintiff wanted to take it first.
The evidence to show these facts was admitted, and the defendant offered to show by further crossexamination of Andrews that, on the day Matthews' body was found or the day after, he read accounts in the newspapers and heard conversations of people about the hotel to the effect that it was suspected that Matthews had been foully dealt with and that the police were making an investigation. This was excluded, on the objection that it was not the best evidence of what the newspapers contained and was hearsay, irrelevant and immaterial.
The defendant also proffered testimony to show that before Andrews gave his deposition it had been reported in a newspaper in Fort Worth and was generally believed there that the man Wilkinson whom Andrews claimed to have told the facts to which he testified had been killed in Chicago; that Andrews had stated in his deposition that he did not know where Wilkinson was, and that the last he knew of him was that he was working at a hotel in Fort Worth; but had told a witness, who inquired of him concerning Wilkinson, that it was his (Andrews) understanding that Wilkinson was dead and had been killed in Chicago; and, in connection with this, defendant put Wilkinson, who was in fact alive, upon the stand and offered to prove by him that Andrews had never communicated to him the facts stated by him concerning Matthews. This evidence was excluded upon the objection that it was immaterial, irrelevant and hearsay.
The objection that the rumors and the reports in newspapers about Matthews' death, the suspicions concerning it and the proposed investigation of it were hearsay would plainly be good had it been offered as evidence of the facts reported, but such was not its object. Such significance as it had consisted wholly in the suggestion to speak, thus brought to Andrews' mind, to intensify the probability that he would have broken his silence had he known the facts to which he now testifies. If the fact that he had never communicated his knowledge was itself relevant, circumstances were equally so which tended to increase *Page 71 its force by strengthening the inference sought to be raised, that one knowing such facts would naturally have mentioned them under such circumstances. But apart from the question as to their admissibility as affirmative evidence for the defense, the inquiries about these facts were addressed to the witness himself in cross-examination, and this we think the defendant had the clear right to do.
If the evidence of Wilkinson that Andrews had never mentioned the subject to him was admissible, the purpose being to thereby support the attack upon the credibility of Andrews' story, it was likewise admissible to intensify the force of that evidence by showing that Andrews believed that Wilkinson was dead when, in his deposition, he mentioned Wilkinson as the only person to whom he had ever communicated the facts known to himself. The question as to the admissibility of the rejected evidence therefore depends upon the further questions whether or not it was competent for the defendant to show (1) that Andrews had never told the facts of which he claimed to have had knowledge to any one, and (2) when Andrews asserted that he had told them to one person, to show that he had never done so.
It is contended for plaintiff and was held by the Court of Civil Appeals that, while the defense was permitted to crossexamine the witness as to communications made, the facts thus inquired about were collateral and irrelevant to the issues in the case and that it was not permissible to contradict his answers about them, the contention resting upon the familiar rule that a witness who has been asked on crossexamination if he has not made specified statements concerning irrevelant matters and has denied making them can not be contradicted by evidence that he has done so. But that character of testimony tends only to show an inconsistency between two statements neither of which bears upon facts in issue in the case; in other words, to show that the witness, in some particular instance, has been guilty of falsehood about a matter immaterial to the case on trial. It is not permitted for the reasons that witnesses are not expected to come prepared to sustain all the statements they have made upon subjects not involved in the controversy, and because its admission would involve the trial of too many issues as to the truth of the statements, the determination of which would at last have little effect upon the decision of the cause.
The effort here is to establish the falsity of the witness' testimony material to the case by circumstances, one of which is that that did not happen which would naturally be expected to have happened if the tale were true, i.e., an earlier disclosure of the facts known to the witness. This evidence is directed at the very facts in issue in the case and not to the proof of irrelevant facts. When the existence of facts material to a plaintiff's case are put in issue by the defense, the truth of the testimony of witnesses to those facts is also put in issue; and evidence which has a tendency to show the untruth of such testimony is as relevant to the issues as testimony of other witnesses denying that the facts exist. As was said by Judge Stayton in Evansich v. Gulf, C. S.F. Ry. Co. (61 Tex. 28): "As all issues of fact must be determined by the testimony of witnesses, it would seem that any fact which bears upon the credit of a witness would be a relevant *Page 72 fact and this whether it goes to his indisposition to tell the truth, his want of opportunity to know the truth, his bias, interest, want of memory, or other like fact."
Evidence therefore which bears upon the story of a witness with sufficient directness and force to give it appreciable value in determining whether or not that story is true can not be said to be addressed to an irrelevant or collateral issue. It is directed to the issue as to the existence of the material facts to which the witness has testified. The evidence that a witness has kept silent concerning material facts is often as relevant and sometimes as strong as an affirmative statement contradictory of his testimony would be. The relevancy of evidence of this character therefore, is not tested by the rule applied by the Court of Civil Appeals, but by its probative force or value. That may be so slight as to make the fact offered irrelevant, in the legal sense, and when this is true the circumstances should be excluded as too remote. It is a very common thing in the trial of cases to show that a witness testifying to some fact has never before disclosed his knowledge, or that he has failed to do so on some particular occasion. The value of such a fact depends upon the strength of the presumption or expectation that the witness would have disclosed his knowledge had he possessed it. When it is shown that he was silent when it was his duty to speak, his omission may have great effect in weighing his testimony. So if it can be made to appear, that, while there was no duty to speak, the fact was of such a nature or the circumstances such that one situated as the witness was would, in the natural order of things, have mentioned the fact if within his knowledge, his failure to do so bears sufficiently upon the question of his veracity to entitle it to admission. McKinney v. The State,31 Kan. 570; Alabama G.S.R. Co. v. Brooks, 135 Ala. 401; State v. Martin, 107 N.C. 890; State v. Burton, 94 N.C. 947; State v. McQueen, 46 N.C. 177.
Many authorities upon the subject are cited in the "Encyclopaedia of Evidence," by Camp and Crowe, volume 7, pp. 152-155. They are generally cases in which witnesses testifying to facts are shown to have omitted to disclose them on some particular occasion when disclosure was naturally called for by the circumstances, and in some of them such evidence was rejected because the occasion did not appear to have called for any statement.
If the fact of Andrew's silence stood alone it could hardly be said to have sufficient significance, of itself, to require the trial court to allow more than the crossexamination respecting it. The mere fact that the clerk at a hotel has not said that a particular guest spent a night there, although that guest was to his knowledge killed the next day, when he did not know that the fact was of any importance, could hardly be justly regarded as affecting his veracity. But other circumstances were adduced and these the defendant was entitled to have the jury consider, and along with them the facts drawn out in crossexamination that for so long a time he had never mentioned the facts to those nearest to him, but had told them to a person supposed to be dead. The course which the testimony took gave to this fact greater pertinency than it might otherwise have had. There is such connection *Page 73 between the circumstances brought out by the defense as to make it necessary that all of them be considered together in order that their combined force may be determined, the condition being one often seen in cases of the circumstantial evidence where facts unimportant by themselves acquire force from their relation to others. When all of the facts are examined together the question whether or not Andrews in fact told Wilkinson became of more or less importance. His statement that he had done so, if left uncontradicted, might be regarded by the jury as supporting his testimony. (Ins. Co. v. Eastman, 95 Tex. 37; 1 Greenl. Ev. (16th ed.), by Wigmore, sec. 469b.) It was therefore competent we think for the defendant to show that he had never made the communication claimed by him. (State v. McKinney, supra.) The effort of the defendant was not to show a statement to Wilkinson contradictory of his testimony, but to maintain its contention that he had never told any one; and that fact being relevant, the defendant had the right, we think, to meet his apparent effort to break its force.
During the examination of Wilkinson he stated before the jury that he had never heard of a man named Matthews being run over and killed at the place where plaintiff's husband was killed, and it is contended that this showed all that the excluded testimony would have shown and renders the ruling of the court harmless. If the exclusion of this statement was not involved in the ruling which the court made, which is not clear, it is nevertheless true that the defendant had not the right to insist, nor the jury the right to consider, that it had the effect, now sought to be ascribed to it, of supplying proof of the further fact, proof of which the court expressly refused to admit on the ground that it could not be considered as evidence. To so treat it would imply the right of a jury to disregard the ruling of the court.
The assignments of error based upon the use in argument by plaintiff's attorney of a part of a deposition which, by oversight, had not been offered in evidence, and upon the fact that newspaper accounts of the case were read by the jury need not be discussed, as they present matters which will not affect another trial.
All of the other grounds of error have had careful attention and in none of them has there been found reason for reversing the judgment.
Reversed and remanded.