T. B. J. Hadley v. A. M. M. Upshaw, 27 Tex. 547

Bell, J. We are of opinion that the court below did not err in permitting the plaintiff below to read in evidence his own deposition. The defendant had propounded interrogatories to the plaintiff in accordance with the provisions of the act of the 5th of February, 1858.' The defendant declined to read the answers of the plaintiff, and objected to their introduction by the plaintiff, on the ground that the interrogatories had not been crossed by the plaintiff.

The rule that interrogatories must be crossed in order to give both parties the right to introduce the answers to them in evidence, does not apply to the case of interrogatories addressed by one party to the suit to the other party. The fourth

section of the act of February 5th, 1858, provides that “ the party interrogated, whether orally or otherwise, may in answer to questions propounded, state any matter connected with the cause and pertinent to the issue to be tried.” This implies that the party interrogated need not cross interrogatories* addressed to himself. We do not think a party can be permitted to address interrogatories to the opposite party, and then decline to read his answers, and thereby deprive the party who has answered of the right to read the answers in evidence.

When a party propounds interrogatories to his adversary, he thereby qualifies him as a witness in the case, and he ought to be held to take the consequences. We are of opinion, however, that there was' a misdirection in the charge of the court to the jury. The first paragraph of the charge of the court stated with great accuracy the general principle in respect to the liability of inn-keepers for the loss of the goods of their guests. But in the second branch of the instruction, when the court spoke with reference to the particular case before the jury, we think there is error.

The court said: “If, from the evidence, you believe that the defendant kept a public house for lodging and boarding transient persons or travelers for pay, and that the plaintiff was received as a lodger, and that he then had in his possession the articles alleged to have been lost, or any part of them, and that they, or any of them were stolen from the room where he lodged in the tavern, and that it is not shown that the loss resulted from the gross neglect of the plaintiff in exposing the articles to greater risk than he should have done, then you will find for the plaintiff,” &c.

We believe the rule of the law to be, that the inn-keeper will not be liable for the goods of his guest, if the loss is occasioned by the want of that ordinary care on the part of the guest, which a prudent man may be reasonably expected to take under all the circumstances of the case; and the question whether or not the guest has taken such ordinary care, is always a question of fact for the jury. The rule which we have here announced was laid down by the Court of Queen’s Bench in the case of Cashill v. Wright, 37 Eng. Law & Eq. Rep., 177.

The same rule was previously intimated by Lord Campbell, in the' case of Armisted v. White, 6 Eng. Law & Eq. Rep., 349, and has been recognized in New York hi the case of Fowler v. Dorlon, 24 Barb., 384. If the court below had instructed the jury particularly as to the legal meaning of gross negligence, the judgment might perhaps have been sustained upon the facts of the case, notwithstanding the misdirection to which we have referred. We see no error in any other part of the charge of the court; but for the error which has been pointed out, the judgment is reversed and the cause remanded. Reversed and remanded.