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

• Decision Date: 23 March 1917
• Docket Number: (No. 7310.)
• Citation: 194 S.W. 462
• Parties: GALVESTON, H. & S. A. RY. CO. v. STATE.
• Court: Texas Court of Appeals

Page 462

194 S.W. 462

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

(No. 7310.)

Court of Civil Appeals of Texas. Galveston.

March 23, 1917.

Rehearing Denied April 12, 1917.

Error from District Court, Fayette County; Frank S. Roberts, Judge.

Action by the State against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

C. D. Krause, of La Grange, and Lane, Wolters & Storey and Baker, Botts, Parker & Garwood, all of Houston, for plaintiff in error. E. H. Moss, of La Grange, for the State.

GRAVES, J.

The state of Texas, through her county attorney of Fayette county, brought this suit under and by virtue of Revised Civil Statutes, arts. 6592 and 6594, in the district court of that county, against the Galveston, Harrisburg & San Antonio Railway Company, plaintiff in error here, to recover a total of $16,100 in penalties for its alleged failure, neglect, and refusal, for a period of 322 weeks, beginning with September 12, 1909, and terminating with the filing of the second amended petition, November 22, 1915—

"to construct and maintain, at its passenger depot at Flatonia, Fayette county, Tex., or in connection therewith, or within a reasonable and convenient distance therefrom, suitable and separate water-closets or privies for either male or female persons, at its passenger station and passenger depot on its line of railway at Flatonia, Fayette county, Tex., and for the accommodation of its passengers who are received and discharged from its cars thereat, and of its patrons and employés who have business with said defendant company at such station and passenger depot at Flatonia, in Fayette county, Tex."

After demurrers and denials, plaintiff in error further specially pleaded that it for many years had and maintained water-closets and privies for both male and female persons at its station and depot at Flatonia, Tex., and in connection with said depot, and within a short and accessible distance from said passenger station and depot at Flatonia, and that it did, and does now, in all respects, comply with all of the laws of this state relating thereto, and that said water-closets meet all of the demands within reason of all of its patrons, passengers, and employés.

Trial was had before a jury, who found the railway company "guilty for the sum of $5,000 for not having their closets at a convenient place." The court accordingly entered judgment for $5,000 in favor of the state of Texas against the plaintiff in error. From that judgment this appeal is taken, and the case is properly brought to this court by this writ of error.

Before discussing the assignments of error we set out paragraphs 2 and 3 of the court's general charge, and its special charge No. 2, given at the request of the railway company, as follows:

"(2) If you find from a preponderance of the evidence that the defendant, the Galveston, Harrisburg & San Antonio Railway Company, failed and neglected to maintain, at its station or depot, or within its passenger depot, or in connection therewith, or within a reasonable and convenient distance therefrom, suitable and separate water-closets or privies for male and female persons, at its said passenger station at Flatonia, Fayette county, Tex., for a period of 322 weeks, or any number of weeks that you may find, if you find that the defendant railway company failed and neglected to construct and maintain such water-closets or privies, then you will find a verdict in favor of the plaintiff, the state of Texas, for any number of weeks not to exceed 322 weeks at $50 per week, or in such sum as you may find the state is entitled to recover, not to exceed $16,000, and so state in your verdict; and, if you do not find from a preponderance of the evidence, you will find for the defendant.

"(3) If you find from the evidence that the defendant railway company had constructed and maintained suitable and separate water-closets or privies for both male and female persons within a reasonable and convenient distance from its passenger station and depot at Flatonia, Fayette county, Tex., you will find for the defendant."

"The defendant requests the court to charge the jury as follows: `You are instructed that, as the law of this case, according to the undisputed testimony, the defendant has maintained and constructed suitable and separate closets or privies for male and female persons near its passenger station at Flatonia, Tex., and has maintained the same since September 12, 1909, and the only question for you to determine in this case is whether or not it has constructed and maintained the same within a distance reasonable and convenient to its patrons and employés, and if you find it to be within a reasonable and convenient distance from such station, you will find for the defendant.'"

Under these charges the only question of fact thus submitted to and tried before the jury was whether or not the toilet was within a reasonable and convenient distance from the depot. Paragraph 2 of the general charge quoted, in effect, practically embodied the full provisions of the statute (art. 6592); but plaintiff in error's said requested charge No. 2 restricted the jury's inquiry to the one fact issue just stated. The jury having determined that fact issue against it, plaintiff in error, under appropriate assignments, complains: First, of the court's refusal to instruct a verdict for it, because of the claimed insufficiency of the evidence to support the verdict for the state; second, that said paragraph 2 of the court's general charge might have and did induce the jury to compromise, and to render against it a compromise verdict, which it would not otherwise have done.

Complaint is also made under the fifth assignment of the overruling of its motion for new trial, because of certain remarks of counsel for the state to the jury in arguing the case. We think there is no prejudicial error shown in this respect, because the first bill of exceptions, relating to part of these remarks, shows that upon objection and exception to these remarks at the time made the court sustained it and instructed the jury to disregard the same; while in the second and third bills of exception, relating to the other parts of the complained of remarks, it is shown that the court promptly sustained the objection to the remarks when made, and stopped the county attorney from making use of such language, and it does not appear that any request was made of the court to instruct the jury in writing to disregard said latter remarks. Accordingly the fifth assignment is overruled.

The duty imposed upon the railway company under this statute is a positive one, and it has been held that it is a penal statute, and that the rules governing the construction of penal statutes are applicable to it. State v. T. & P. Ry. Co., 143 S. W. 223. Furthermore, it...