Dillingham v. Wood

• Decision Date: 20 June 1894
• Citation: 27 S.W. 1074
• Parties: DILLINGHAM v. WOOD.
• Court: Texas Court of Appeals

27 S.W. 1074

DILLINGHAM v. WOOD.

Court of Civil Appeals of Texas.

June 20, 1894.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Action by James Wood against Charles Dillingham, receiver, for injuries to plaintiff's wife while on a train managed by defendant's servants. Judgment for plaintiff, and defendant appeals. Reversed.

Frost & Blanding, for appellant. Croft & Croft, for appellee.

RAINEY, J.

Appellee sued appellant for damages for injuries to his wife, inflicted while they were passengers on a mixed or accommodation train, in charge of appellant, his servants and employés. The train stopped at a station to take on and discharge passengers and freight. While standing, the wife, Martha A. Wood, left her seat to go to the water stand or closet. While she was walking in the aisle, the train started with a sudden jerk, which threw her violently against the back of a seat, "with such force as to break one or two of her ribs, bruise her hips, shoulders, and sides, and causing injury to her spinal column, causing her to suffer mental and bodily pain and suffering, thereby rendering her helpless and permanently injured." On the trial before a jury, a verdict for $5,000 was rendered in favor of plaintiff, a motion for new trial overruled, and an appeal taken.

The part of the court's general charge relating to negligence is as follows: "You are instructed that it was the duty of defendant to exercise, through such agents, servants, or employés, such care and caution in order to avoid causing or doing injury to passengers riding upon its train as a very prudent and cautious person under like circumstances would have exercised. That is what is called the utmost care and caution. The failure to exercise such care and caution is `negligence' in law." "If, while plaintiff's wife was walking or standing in the aisle of defendant's car, the servants, agents, or employés of defendant caused the car to start suddenly and violently, and without warning, and in so doing were guilty of negligence, as above explained, — that is, of failure to exercise such care as a very prudent and cautious person would under like circumstances have exercised in order to avoid causing accident and injury to passengers, — and if such negligence caused the plaintiff's wife to sustain the injuries, or any of the injuries, complained of, then you will find for plaintiff." Again, in qualifying a special charge asked by appellant, and given, the court instructed the jury "that they are required to use the utmost care in order to avoid making greater or more violent jerks or jolts than are unavoidable; and if the defendant failed to use such care, and thereby the accident and injury was caused, then the defendant is liable. In other words, a passenger riding in a mixed train is entitled to demand from the railroad operatives transporting him the exercise of the utmost degree of care and caution to which such trains are susceptible." Appellant insists that these instructions required greater care on the part of the servants and employés of appellant than the law imposed. While railroads are not insurers of the safety of their passengers, yet they are held to the highest degree of care to protect them from injury in transportation. In Railway Co. v. Halloren, 53 Tex. 53, Mr. Bonner, J., laid down the following rule: "Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding them, as would be used by very cautious, prudent, and competent persons under similar circumstances." This rule has been approved by our supreme court in a recent opinion delivered by Mr. Brown, J., in the case of Railroad Co. v. Welch (Tex. Sup.) 24 S. W. 390, who said: "This rule of liability is sustained by the best text writers and nearly all of the adjudicated cases." In the cases of Levy v. Campbell (Tex. Sup.) 19 S. W. 438, and in Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407, charges were approved where the jury were told that "the carrier is bound to use the `utmost care' to provide for the safety of passengers." In the case of Railway Co. v. Worthington, 21 Md. 288, the term "utmost care" is defined to mean "all the care and diligence possible in the nature of the case." Railroad Co. v. Welch, supra. Testing the charge in this case by the authorities just referred to, it is not open to the objection urged by appellant. There is no distinction made by our law as to the degree of care necessary to be used by a railroad in the transportation of passengers, whether by freight, mixed, or passenger trains. The refusal of the special charges asked by appellant on this proposition was not error. Railway Co. v. Irvine, 64 Tex. 529.

The first, second, third, and fourth assignments of error relate to the conduct of appellee's counsel in the argument of the case before the jury. Various bills of exception were duly reserved, and are, in substance, as stated by counsel for appellant in their brief, which statement is as follows: "Be it remembered that, upon the trial of the above-entitled cause, the following proceedings were had: During the argument of the law of the case to the court, plaintiff's counsel read in the presence of the jury, and in their hearing, over defendant's objection, the opinion of the supreme court in case of Railway Co. v. Rushing [69 Tex. 306, 6 S. W. 834], reciting in full said opinion, — that `the trial of the cause before a jury resulted in a verdict for plaintiff for $5,000;' also, `They are presumed to know that persons in feeble health, old or decrepit, travel on their trains; plaintiff's counsel then interjecting remarks of his own, as follows: `Just as in this cause. The railroad has proved by their conductor that Mrs. Wood was old and clumsy.' Defendant's counsel announced to the court his objection, and that he wished to take a bill of exceptions to the action of counsel in reading the amount of the verdict, and comparing the case at bar with that of the case he was quoting. Plaintiff's counsel thereupon said: `You are rather late.' To all of which defendant excepts, and tenders his bill of exceptions." Defendant reserved bill of exceptions No. 2 to the conduct of counsel, to wit: "Be it remembered that, upon the trial of the above-entitled cause, the following proceedings were had: Several minutes after bills of exceptions were prepared and approved, the court stated to counsel for plaintiff that `defendant's counsel seemed to claim in his bill that the amount of the verdict was read in the Rushing Case. The court was not paying very particular attention. Was the amount read?' Plaintiff's counsel replied: `Yes, sir; I believe so. Does he wish me to leave out the amount of the verdict?' To which latter part of plaintiff's counsel's reply defendant objected and excepted (plaintiff's counsel was then in the act of reading another case, not objected to before), to which plaintiff's counsel remarked: `All right, sir; you can have it, I reckon. You want a bill of exceptions to that, don't you?' To which remark, made in the presence of the jury, defendant excepts, and here tenders his bill of exceptions, and prays the same be approved, and made a part of the record, for the reason that such conduct may have a tendency to prejudice defendant's cause with the jury." The defendant reserved bill of exceptions No. 3 to the conduct of counsel, as follows: "Be it...