Ft. Worth & D. C. Ry. Co. v. Hyatt

• Decision Date: 08 February 1896
• Citation: 34 S.W. 677
• Parties: FT. WORTH & D. C. RY. CO. v. HYATT et ux.
• Court: Texas Court of Appeals

34 S.W. 677

FT. WORTH & D. C. RY. CO. v. HYATT et ux.

Court of Civil Appeals of Texas.

February 8, 1896.

Appeal from district court, Armstrong county; H. H. Wallace, Judge.

Action by F. M. Hyatt and wife against the Ft. Worth & Denver City Railway Company From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Stanley, Spoonts & Meek, for appellant. A. W. Walker and Davis & Garnett, for appellees.

HUNTER, J.

It is contended by appellant company that neither the common law nor any statute required it to warm its coaches in cold weather, and that plaintiffs should have pleaded and proved a universal custom for railroad companies to warm their passenger coaches for the benefit of the public, in order to entitle them to recover. The petition objected to stated that Mrs. Hyatt and her babe and children were required by the conductor and agents in charge of the train to ride from Clarendon to Amarillo in a coach provided with stoves for heating purposes, but with no fires therein; that the weather was extremely cold and that the air in said coach was chilly and bitter cold, and that Mrs. Hyatt frequently requested the conductor and agents in charge of the train to make fires in said stoves, but they failed and refused to do so, as it was their duty to do; and that by reason thereof her babe became chilled and almost frozen, and became dangerously and fatally ill, and, in consequence thereof, died. This, we think, presents a good cause of action. It was the duty of defendant to properly and comfortably warm its coaches for the welfare and comfort of its passengers; and especially so when they were women and little children, and their discomfort was made known to the conductor or brakeman, and fires requested. Hutch. Carr. (2d Ed.) § 515d; Dillingham v. Hodges (Tex. Civ. App.) 26 S. W. 86. The judge's charge to the effect that it was the duty of defendant to use reasonable care and diligence to warm the coach, and, unless it did so, it would be guilty of negligence, was not, therefore, erroneous, as against the defendant, nor a charge upon the weight of the evidence, and the charge asked to the contrary was properly refused.

It is complained that the court erred in admitting the testimony of the mother of the child to the effect that she knew the cause of the child's death, and that it was caused by a severe cold contracted while on the coach of defendant, between Clarendon and Amarillo, on the night of the 15th of February, 1892, and that she knew that it died from exposure to cold in the coach on the night and between the places named. The ground of objection urged to this evidence was that the witness was not shown to be a medical expert and therefore could not testify as to the cause of the child's death, nor give her opinion thereon. She testified that she was 46 years old, and was the mother of 11 children; that she started with this child on the morning of February 15th; that it was a robust, healthy child, about 3 months old, and had never been sick, and she had never given it a dose of medicine; that the coach was warm in which she traveled from Saginaw to Clarendon, and the baby was well when the conductor required her to go into the cold coach; that its feet and hands and face got very cold before they arrived at Amarillo, and it was almost frozen; that it was sneezing and coughing; that it was taken sick on this coach, and contracted a severe cold; that it...