Galveston, H. & S. A. Ry. Co. v. Thornsberry

• Decision Date: 10 November 1891
• Citation: 17 S.W. 521
• Parties: GALVESTON, H. & S. A. RY. CO. v. THORNSBERRY.
• Court: Texas Supreme Court

17 S.W. 521

GALVESTON, H. & S. A. RY. CO. v. THORNSBERRY.

Supreme Court of Texas.

November 10, 1891.

Commissioners' decision. Section A. Appeal from district court, Val Verde county; WINCHESTER KELSO, Judge.

Action by W. T. Thornsberry against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries sustained by plaintiff, a passenger on defendant's train. Judgment for plaintiff, and defendant appeals. Reversed.

John H. Clark and John M. Coleman, for appellant. Walter Gillis, W. W. Tumey, and H. C. Carter, for appellee.

HOBBY, P. J.

This is a suit to recover damages for personal injuries received by appellee while a passenger on the cars of appellant. It is alleged in the petition that on November 3, 1887, he was such passenger on said car, then running from the town of Murphyville, in Brewster county, Tex., to the town of Luling, in said state; "that on the night of November 3, 1887, as the defendant's cars approached near unto the said town of Luling, the said town was announced by one of defendant's employes as a station and stopping point, and plaintiff prepared himself to leave the cars; that when defendant's cars came up to the depot, although the night was very dark, the same was unlighted, and by reason of said depot being so dark it was impossible for plaintiff to exactly locate it, or to know the movements of defendant's cars; that when plaintiff thought said cars had stopped at the depot he made all due haste to alight, and, with one hand holding to the iron railing on platform of defendant's car, he put down one foot, in the darkness, to the ground, and then discovered that defendant's cars were slowly moving, and after so putting down his foot to the ground plaintiff could not recover himself, and about the same time defendant's agents and employes negligently put the same in rapid motion with a violent jerk, and plaintiff was with great violence hurled to the earth, and against a post erected therein, where he lay bruised, mangled, lacerated, and bleeding in body, and wholly unconscious; and plaintiff avers that defendant's cars had passed and were beyond its depot when he was thrown off, — all of which plaintiff was ignorant of until after he had sustained his injuries." The damages are laid in the petition at $20,000. There was a general denial, and special plea of contributory negligence on the part of plaintiff, causing his injuries. A trial resulted in a verdict of $4,000 for plaintiff as actual damages. This appeal is prosecuted therefrom.

The error first complained of has reference to the action of the court in sustaining plaintiff's challenge for cause to two jurors, Fred Crowley and M. N. Wofford. They were a part of the regular panel for the week, and had in all other respects qualified themselves as jurors in the case, when plaintiff's counsel asked each if they were not employes of defendant. The juror Crowley replied that "he attended to the water-works of defendant in the town of Del Rio, that defendant supplied said town with water, and that he drew a monthly salary from defendant." The juror Wofford replied that he "run the pump that supplied said water-works," and also "received a salary from defendant." These jurors were challenged for cause by plaintiff's counsel, and, over defendant's objection, the challenges were sustained, and the jurors stricken from the list. In the case of Railway Co. v. Mitchell, 63 Ga. 179, it was claimed that the lower court erred, because the plaintiff's challenge was sustained to a regularly drawn juror on the ground that he was an employe of the defendant, "it not appearing in what capacity he was employed." In passing on this question, it was held that the employe was properly rejected. It was put upon the ground that the relation of master and servant existed. The common law excluded all servants; and the common-law rule, in that respect, it was said, had not been changed by statute. Id. 180. A clerk in the service of the defendant was held incompetent in Mississippi on the same principle. Hubbard v. Rutledge, 57 Miss. 12. With us, grounds of challenge which would disqualify a juror in the particular case are not restricted exclusively to such as are specified in article 3012, Rev. St. They may be predicated on an objection rendering the juror, "in the opinion of the court, unfit to sit in the case." Article 3080, Rev. St. Under this statute the trial judge is necessarily clothed with large discretion in this respect, the exercise of which should not be revised unless it is shown that it operated to deprive the party complaining of a trial by an impartial jury. In this case there is not only an absence of such showing, but the bill of exceptions discloses the fact that neither of the parties had exhausted their peremptory challenges, one remaining to each when the jury was formed.

The second assignment is that the court erred in permitting plaintiff's counsel to ask him on direct examination the following question: "Who are John Heidt and W. B. Rankin, and what business do they follow?" To which the witness replied as follows: "John Heidt is regent of the Southwestern or Georgetown University, and W. B. Rankin is agent of the American Bible Society." The objection to this is on the ground that it was irrelevant, and that evidence of the character of a witness not impeached was inadmissible, and calculated to prejudice the jury, etc. While the antecedents of a witness are ordinarily disclosed on cross-examination, still we see no reason why this may not be made the subject-matter of inquiry on direct examination. The practice is general, when depositions are taken of a witness, as in this case, to inquire as to age, residence, occupation, etc., on direct examination. Moreover, these facts were testified to by the witnesses Heidt and Rankin without objection. The assignment is not tenable.

At the request of plaintiff the court gave the jury the following special charge: "A railroad company, carrying passengers by means of cars propelled by steam, is held to a high degree of care to prevent accident to its passengers." In the fourth paragraph of the general charge, this language was used: "It is also the duty of a railroad company, at each station where passengers get off its trains at night, to have the pass-way out of the cars so lighted as to enable passengers getting off, and using reasonable care and diligence, to do so with safety." The giving of the special charge is assigned as error, because it was calculated to lead the jury to believe that railroad companies were held to a greater degree of care than other common carriers, and the fourth paragraph was a repetition of that part of the court's charge first quoted. A comparison of the two charges shows that the latter objection is not well founded. We think also that the requested instruction announced the correct rule, and one repeatedly recognized by the authorities. In the case of Railway Co. v. Derby, 14 How. 486, it was held by the supreme court of the United States that "when carriers undertake to convey persons by the powerful and dangerous agency of steam, the greatest possible care and diligence is required of them." See, also, 2 Wood, Ry. Law, § 301, and Pennsylvania Co. v. Roy, 102 U. S. 455. The same principle is recognized in Railway...