Chicago, R. I. & T. Ry. Co. v. Langston

• Decision Date: 03 April 1899
• Citation: 50 S.W. 574
• Parties: CHICAGO, R. I. & T. RY. CO. v. LANGSTON.
• Court: Texas Supreme Court

50 S.W. 574

CHICAGO, R. I. & T. RY. CO. v. LANGSTON.

Supreme Court of Texas.

April 3, 1899.

Certificate of dissent from court of civil appeals, Second supreme judicial district.

Action by Rosa Langston against the Chicago, Rock Island & Texas Railway Company. A judgment for plaintiff was reversed by the court of civil appeals (47 S. W. 1027 and 48 S. W. 610), and the case comes to the supreme court on a certificate of dissent.

Graham & Turner and J. M. Chambers, for appellant. C. B. Randell and W. W. Wilkins, for appellee.

DENMAN, J.

Rosa Langston having recovered against the Chicago, Rock Island & Texas Railway Company a verdict and judgment for $25,000 as damages for the crushing of both her feet by the wheels of the company's cars as she was attempting to board the train as a passenger, and the court of civil appeals, one of its justices dissenting, having, on appeal by the company, reversed the judgment, the two questions of dissent have been certified to this court for determination pending a motion for rehearing, made in the court of civil appeals by Rosa Langston.

One question of dissent is whether the majority erred in holding that the cause should be reversed on account of certain language used by the counsel for Rosa Langston in his opening argument to the jury, as follows: "Gentlemen of the Jury: This is an unequal contest,—this poor woman on one side, and this powerful corporation on the other. I say that the evidence shows that it is an unequal contest. Look at the array of witnesses on one side, that came here for the railway company, and the number that came for Mrs. Langston. We allege in our petition that the train crew was drunk. There was enough testimony in this case to raise the issue. It don't seem to me that the men could have been sober and gave no attention to the passenger cars and passengers in the cars. It was a grave charge made upon the conductor and his underlings. They knew the charge had been made, and the attorneys of the railway company knew the charge had been made, and they didn't open their mouths about it. The man who run that engine was charged with being drunk, and didn't deny it. There were some depositions taken in this cause by the notary who had testified in this case,—questions propounded by the defendant, and crossed by the plaintiff,— and the answers written down, sworn to by the witnesses, and certified to by Mr. Collier that never found their way into this court house. Who is responsible for that I do not know. I hope no lawyer in this case. It was not the proper thing to do. Gentlemen of the jury, when these depositions were taken, if it was found by anybody who had any authority in the matter that they were against the defendant, it was their duty to let them be returned to the court, filed here as testimony in this case, to be used by the plaintiff if she saw proper to use them, even if the defendant did, on those depositions, lose the case. But they disappeared. Where they went to I do not know. I don't know who was responsible for them,—whether it was the agents of the railway company or the notary public,—and I don't believe it was the lawyers. But they are gone. Those depositions were against the defendant, otherwise they would be on file here to-day to be read to you. We were entitled to them, but we did not get them. That poor woman, who sits there with her limbs cut off, helpless as she is, was entitled to those depositions to be used for whatever they were worth; but you can't get them. They are gone. Collier testified that he took them, but no explanation is made of their absence. They are unaccounted for. Nothing more is said about them by the defendant. When he testified that they hadn't been returned to the court, they didn't attempt to explain it away. Nothing more was said about it. They ought not to have done this poor woman that way. They ought to have given her a fair chance. This is almost a death struggle for her. If there is anything in her favor, let her have...