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

• Citation: 83 S.W. 248
• Parties: CHICAGO, R. I. & T. RY. CO. v. WILLIAMS.
• Decision Date: 19 November 1904
• Court: Texas Court of Appeals

83 S.W. 248

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

Court of Civil Appeals of Texas.

November 19, 1904.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by J. M. Williams against the Chicago, Rock Island & Texas Railway Company. A judgment was rendered in favor of plaintiff, and defendant appeals. Reversed.

N. H. Lassiter, Robert Harrison, and T. J. McMurray, for appellant. R. E. Carswell, for appellee.

SPEER, J.

This is an action for damages instituted by appellee against appellant to recover for injuries sustained by him by reason of the alleged negligence of the company in injuring him while in the act of pinching a partially loaded coal car so as to enable the company's operatives to attach an engine to the same. Among other defenses, the appellant interposed a release executed by the appellee, which presents the principal question to be decided on this appeal. A trial before a jury resulted in a verdict and judgment in favor of the appellee for the sum of $920.

The testimony of the witness Frank Tackle in response to the question, "When you saw the engine coming, how close was it to the car?" that it was "pretty close"; and in response to the succeeding question, "Could you have given warning?" "No, sir; I would not have had time"—if open to the objection that it was his conclusion and immaterial, was also trivial, and the assignment based thereon could hardly call for a reversal of the case.

In view of the explanation by the court of the bill of exception taken to the testimony of the witness Houx, that the testimony of said witness related to a time within a few minutes after the accident, we think there was no error in allowing him to testify that "he was sitting on the side of the track, groaning and complaining," and seemed to be in pain.

Neither can the objection to Motsenbager's testimony that "plaintiff seemed to be complaining some since the accident, and spitting up blood," be sustained—the objection being that the same is self-serving, hearsay, and a conclusion of the witness—because at least a part of the testimony is not open to any of these objections, and the objection, being to the whole, was properly overruled. If the appellee was at any time after the accident spitting up blood, this would be such physical act as could be proved by any witness who was cognizant of the fact, precisely the same as a description of wounds or bruises inflicted by the accident could be detailed.

If the witness Johns' testimony, to the effect that he found appellee suffering immediately after the injury, and before he got up, was a conclusion of the witness, it so indisputably appears that such was a fact that the assignment based thereupon is not to be seriously considered.

Complaint is next made of the refusal of the court to give to the jury appellant's special charge No. 3, which is as follows:

"You are charged that if the plaintiff voluntarily went into a place of danger, behind said car upon the railroad track, without notice to defendant's operatives on the engine, and was thereby injured, and if you find that a man of ordinary prudence would not have so gone upon said track, and that it was negligence and a want of ordinary care to so go upon said track, you will find for the defendant."

More than one valid reason can be given in support of the court's refusal to give this charge: First, it would have withdrawn from the jury the issue of discovered peril, which was properly in the case; and, second, it was unnecessary to submit to the jury the question of appellee's contributory negligence at all, in view of the following special charge given at the request of the appellant:

"You are charged that unless you find from the evidence, by a preponderance thereof, that at the time the plaintiff was injured the agents of defendant in charge of its train knew that the plaintiff was behind the car and pinching it forward, and that he would likely be injured if the engine continued to move, you will return a verdict in favor of the defendant."

This, it will be seen, was tantamount to an assumption that appellee was guilty of negligence, and narrowed the issues to the question of whether or not appellant discovered his peril in time to prevent the injury. The least that can be said of this is that it certainly was as favorable to appellant as it had a right to demand.

Error is also predicated upon the refusal of the court to give the following charge upon the issue of release and discharge of appellant company:

"You are charged that if you find from the evidence that after plaintiff was injured, on, to wit, the 19th day of February, 1903, that one of the duly authorized agents of the defendant (W. P....