Beauchamp v. I. & G. N. R'Y Co.

• Decision Date: 13 February 1882
• Docket Number: Case No. 857.
• Court: Texas Supreme Court
• Parties: G. B. BEAUCHAMP v. I. & G. N. R'Y CO.

56 Tex. 239

G. B. BEAUCHAMP

v.I. & G. N. R'Y CO.

Case No. 857.

Supreme Court of Texas.

Feb. 13, 1882.

ERROR from Harris. Tried below before the Hon. James Masterson.

This was a suit brought by the appellant, G. B. Beauchamp, against the International & Great Northern Railroad Co. for damages, based upon the failure of the defendant to stop the mixed train upon which he was a passenger at a point on said road called “Cross Timbers,” between Waverly and Houston, and within five miles of Houston, the plaintiff being a passenger on said train and having purchased his ticket at Waverly, and which called for Houston as his destination. The appellant, after having embarked on the train, requested the conductor to put him off at “Cross Timbers,” but the conductor informed him that he could not comply with that request because he was behind time, in consequence whereof he was brought to Houston on the train and walked back home near “Cross Timbers” the same night after reaching Houston.

The defendant filed a general denial.

The plaintiff as a witness testified that on the 11th of October, 1875, at Waverly, he purchased the ticket above referred to, and started on a freight train, shortly afterwards taking the accommodation train which ran from Willis to Houston. That he requested Sullivan, the conductor, to put him off at “Cross Timbers,” with the result which has been stated; and who further stated that the train did not stop at “Cross Timbers,” and that he could not stop the train to put him off. Witness said that he took the accommodation train because he thought it would stop at that point and he could get off and reach his home, which was near there; that it is usual and customary for accommodation trains to stop at all way stations and switches. Witness stated on cross-examination that the railway company did no business at “Cross Timbers,” has no agent at that point, nor platform, nor station-house, nor house of any kind,--has nothing there but a switch. The defendant once had a wood-yard there, but there was no wood-yard at that point on the 11th of October, 1875. Never of his own knowledge knew of any person getting on or off at that place except Mr. Tally and his family, who, with their baggage, occupied a whole box car, and who were moving into that neighborhood at that time.

The testimony of the defense, given through officers of the road then in its employment, strongly negatived the suggestion of “Cross Timbers” being a point at which any of its trains stopped under any regulation to that effect established by the company, and that in fact its trains were not in the habit of stopping there, except when it was necessary for trains to pass each other.

On the trial the plaintiff offered in evidence Time Schedule No. 21, which was attached to the record in this case as an exhibit, and is sufficiently described in the opinion. The bill of exceptions shows that it was offered to prove that the station “Cross Timbers” was by the company in said time schedule written down and treated as a station, and that the accommodation trains were ordered to stop there, all of which he offered to show “by the same;” and this evidence the court excluded on the ground that, it being “for the government and information of employees only,” it was not competent evidence in plaintiff's behalf, while it might be for employees. To this ruling the plaintiff excepted, claiming that the schedule admits a fact which it is competent to prove, regardless of the manner of its admission, to whom made or for what purpose; and the schedule was offered by plaintiff to contradict the evidence of defendant's witnesses, who testified that they had no instructions to regard this as a station, or to stop at it, and that they were not in possession of information from the company to so regard or treat it. To its introduction for this purpose it was also excluded, to which plaintiff excepted. Verdict and judgment for the defendant.

The plaintiff assigned the following as grounds of error:

“1. The court erred in refusing to allow plaintiff to introduce in evidence “‘Time Schedule No. 21’ of the International & G. N. R. R. Co., as per plaintiff's bill of exceptions.

2. The court erred in its charge to the jury in two respects: 1st. In making prominent the impression on the mind of the court that ‘Cross Timbers' was not a regular stopping place, and thereby influencing the jury to take that view from the court. 2d. In charging that if ‘Cross Timbers' is a siding where sometimes the passenger or accommodation trains stopped and sometimes did not, then find for defendant; thereby presenting an issue as to the habit and not the duty of the company.

3. The court erred in not granting us a new trial (after ruling out our evidence upon which we had relied to establish our case) when we presented the affidavit of witnesses Tally, Westcott and Koenig.”

Hutcheson & Carrington, for plaintiff in error.

Baker & Botts, for defendant in error.

WALKER, P. J. COM. APP.

Whether the court erred or not in the exclusion of the time-table offered in evidence, as an abstract legal question under the rules of pleading and evidence, will not necessarily determine the reversal or the affirmance of the judgment. If the evidence offered, being admitted, could not properly have influenced the jury to a result different from that at which they arrived from the consideration of the other evidence in the case, then, in such case, if it were improperly excluded, the error would have been an abstract error, which would not work a reversal of the judgment. Neither the admission nor exclusion of testimony, where it does not appear that the error affected the result or prejudiced the appellant, will not be cause for reversal. Willis v. Chambers, 8 Tex., 150;Atkinson v. Wilson, 31 Tex., 643;Morrison v. Laflin, 44 Tex., 17;Nicholson v. Horton, 23 Tex., 47.

The materiality of the testimony excluded was for the sole purpose of establishing the fact, so far as it might, that “Cross Timbers” was in fact a station at which accommodation trains were accustomed to stop for the convenience of passengers on said railway.

It is plain from the evidence (nor is the proposition controverted) that in truth “Cross Timbers” was not a station on said railway. There was no station-house or station-keeper, nor other incidents pertaining to a railway station. It was a mere siding at which trains might pass each other for the convenience of the railway company.

The instrument referred to as the “time-table” offered in evidence was a printed document purporting to be issued by the general superintendent of the International & Great Northern R'y Co., on the title-page whereof was indorsed as follows: “Time schedule No. 21, to take effect Sunday, October 3, 1875, for the government and information of the employees only. The company reserve the right to vary therefrom at pleasure.” This printed document contained a ruled list (tabular) showing the times of arrival and departure of freight, St. Louis express and mixed trains at the stations specified. This schedule indicated that the mixed train bound north was due at “Cross Timbers” at eight o'clock and five minutes A. M., and that the same bound south was due at that place at eight and twenty-seven minutes P. M., and that none of the other trains, according to said time-table, stopped there at all. As it was not pretended at the trial by the appellant that there existed other evidence to vary or change the effect of the “time-table,” or in any respect to qualify that which it purported to be on its face, in reviewing the action of the court and jury in rendering verdict and judgment it is not possible to perceive that, had the rejected evidence been allowed, that a different result could properly have ensued. As has been made to appear, this time-table was an internal regulation intended for the regulation of the employees of the road; it was subject to change at its pleasure; and if the same had in fact never been practically enforced or put in operation by the superintendent of the road, neither third persons nor the public at large would have been entitled to reverse his determination by practically giving effect to it in the shape or by way of actions in damages for the non-fulfillment of the terms prescribed by such time-table.

The gist of the plaintiff's cause of action consists in the promise, expressed or implied, on the part of the railway company, to stop his train, provided the same were a mixed train, at “Cross Timbers,” when requested to do so by the plaintiff; and the damage resulting in failure to perform that obligation he claims as the legal result of the breach of that promise. The evidence wholly fails to show such expressed promise, nor...