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

• Decision Date: 17 February 1906
• Citation: 93 S.W. 222
• Court: Texas Court of Appeals
• Parties: DAVIS v. GALVESTON, H. & S. A. RY. CO.

93 S.W. 222

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

Court of Civil Appeals of Texas.

February 17, 1906.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Mrs. E. H. Davis against the Galveston, Harrisburg & San Antonio Railway company. Judgment for defendant, and plaintiff appeals. Affirmed.

Lovejoy & Malevinsky and H. B. Leonard, for appellant. Baker, Botts, Parker & Garwood, Andrews, Ball & Streetman, and C. L. Carter, for appellee.

REESE, J.

This is a suit brought by Mrs. E. H. Davis against the Galveston, Harrisburg & San Antonio Railway Company to recover damages for personal injuries. Damages are laid at $30,000. Upon trial before a jury there were a verdict and judgment for the defendant, from which the plaintiff appeals.

By agreement on file counsel for appellant withdraws the seventh, eighth, ninth, and tenth assignments of error, and asks the court to disregard the same. These assignments complain of the charge of the court in various particulars, which, it is stated in the agreement, was prepared by appellant's counsel. The petition alleges substantially that appellant was a passenger on a train of appellee traveling from San Antonio to Beaumont, and that the train was derailed; that appellant was at the time standing in the closet, and that the door of the closet flew open and struck her on the back with great force, inflicting upon her the injuries of which complaint is made, which are alleged to be serious and permanent. Appellee answered by general demurrer and general denial, and by special exceptions not necessary to be further shown.

The first three assignments of error are addressed to the alleged error of the court in refusing to grant appellant's motion for new trial on the grounds, substantially, (1) that the undisputed facts show that appellant was injured by the negligence of appellee; (2) that the verdict is against the great weight and preponderance of the evidence; and, (3) that the verdict is without any facts to support it.

The undisputed evidence showed that while appellant was riding in a train of appellee at the time stated in the petition, the train ran off the track. There was a sharp conflict in the evidence as to the character and extent of the appellant's injuries, which, in the view we take of the case, need not be further referred to. The accident occurred in the outskirts of the city of Houston. To rebut the inference of negligence to be drawn from the fact of the derailment, appellee introduced evidence to show that the engine and cars composing the train had come, running upon the usual time, from San Antonio without accident of any kind; that at the time of the derailment the train was running at a speed of 6 or 8 miles an hour. The locomotive, the mail car, and the forward trucks of the baggage car passed safely over the place where the derailment occurred. The rear trucks of the baggage car and the cars following it left the track. The wheels first dropped down by the side of the rails and ran a short distance, about 50 or 60 feet on the ties. One or more cars at the rear end of the train did not leave the rails. The stop was gradual and the derailed cars were slightly tilted to one side, standing nearly level. The conductor testified: "After I left the sleeping car and went up the side of the train, I did make an examination of the track —the condition of the track, and the place where the cars first left the track. I examined from the head end back to where the cars were off, and my impression was the wheels of the car first left the track at the frog. I could not tell anything about the condition of the track at that place; it appeared to be all right up to that frog, and the frog appeared to be in condition; where the cars left the track at the frog it was torn up. I had no definite knowledge as to what caused that train to leave that track; it was simply an inference on my part as to what caused that train to leave the track." Witness was asked for his inference. Plaintiff objected. Sustained. "I do not know what size rails were on the track there at that place. I have been railroading 15 or 20 years. I did not observe whether they were light or heavy rails; I could not pass on it, whether they were 60 or 80 pounds. My impression was that they were standard 80-pound rails; that that track had all been made of good rails. The track was ballasted with standard ballast. I did not see anything there to cause the wheels of the coaches to leave the rails at that place. I could not see anything defective. I took charge of that train at San Antonio, and those cars had remained on the track all the time up to that time; had no derailment or anything of that kind. The engine and cars which did not leave the track that were in front of the train had passed over that particular place without leaving the track."

It is contended by appellant that from the fact that the train was derailed there arises in favor of appellant the inference that such derailment was caused by the negligence of the appellee company, which would not only authorize but require a verdict for appellant, unless that inference was rebutted by some evidence tending to show that appellee was, at the time, in the exercise of that high degree of care required of the carrier towards a passenger. It is further insisted that there is no evidence in the record to rebut this inference of negligence arising from the fact of the accident, or, if there is any evidence at all, it is so slight that a verdict based upon it would be against the manifest weight and preponderance of the evidence of negligence afforded by the inference of negligence referred to....