83 S.W. 852 (Tex.Civ.App. 1904), Texas & P. Ry. Co. v. Storey

Citation:83 S.W. 852, 37 Tex.Civ.App. 156
Opinion Judge:[37 Tex.Civ.App. 157] TALBOT, J.
Party Name:TEXAS & P. RY. CO. v. STOREY. [*]
Attorney:T.J. Freeman and Head & Dillard, for appellant. Dudley & Sturgeon, for appellee.
Case Date:November 12, 1904
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 852

83 S.W. 852 (Tex.Civ.App. 1904)

37 Tex.Civ.App. 156

TEXAS & P. RY. CO.

v.

STOREY. [*]

Court of Civil Appeals of Texas

November 12, 1904

Additional Conclusions of Fact, December 24, 1904.

Appeal from District Court, Lamar County; T.D. Montrose, Judge.

Action by G.W. Storey against the Texas & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and rendered.

See 68 S.W. 534.

T.J. Freeman and Head & Dillard, for appellant.

Dudley & Sturgeon, for appellee.

[37 Tex.Civ.App. 157] TALBOT, J.

G.W. Storey brought this suit to recover damages for personal injuries sustained by his wife, Sarah A. Storey, in an accident which occurred while she was a passenger on one of the appellant's passenger trains. A jury trial January 7, 1904, resulted in a verdict and judgment against appellant for the sum of $160, and the case is before us on appeal.

On December 20, 1900, Mrs. Storey was a passenger on an excursion train en route from Enloe, Tex., to Huntsville, Ala. The car in which she was riding was carried from Enloe to Paris, Tex., by the Texas Midland Railway, and there attached to a train of the Texas & Pacific Railway Company; said car being the rear coach of said train. This train left Paris, and when about 9 miles distant therefrom, and while being run at the rate of 25 or 30 miles per hour, a drunken passenger by the name of Oliver, recklessly and in total disregard of the lives of the fellow passengers, uncoupled the car in which Mrs. Storey was riding from the other portion of the train. The train consisted of the engine and 12 coaches, and the separation of the car in which Mrs. Storey was seated, from the rest of the train, caused the air brakes to set automatically on the car detached, and also on the main part of the train. The part of the train that remained connected to the engine, however, stopped sooner than did the coach which had been cut loose, and said coach ran against the cars ahead of it. The shock of the collision threw Mrs. Storey against a seat and injured her.

It is sought to hold appellant liable on the ground that it was guilty of negligence in not anticipating and preventing the willful and unlawful act of the passenger which occasioned Mrs. Storey's injuries; that the air brake on the coach in which she was riding was defective, otherwise it would have been stopped, by automatic action thereof, before it collided with the main part of the train; that the hand brake on said coach was defective, and there was no brakeman on said coach.

The case was submitted to the jury on a general charge and several [37 Tex.Civ.App. 158] special charges, and in no event were they authorized to return a verdict in favor of the plaintiff unless they believed from the evidence that appellant ought to have anticipated and foreseen that some such person as the drunken passenger, by the same wrongful act, would bring about the accident which resulted in the injuries to appellee's wife.

No complaint is urged to the form or construction of the court's charge, but, at the conclusion of the evidence, appellant requested the court to instruct the jury as follows: "The evidence in this case is not sufficient to authorize you to find that the defendant was guilty of negligence in not anticipating and preventing the cars from being uncoupled by the person who uncoupled them." This charge was, in effect, an instruction to return a verdict for appellant because the evidence was insufficient to warrant or support a finding in favor of appellee, and is the basis of appellant's ninth assignment of error. Appellant, by its fifth assignment, also complains that the evidence was insufficient to justify a verdict for appellee; and these...

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