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

• Decision Date: 21 February 1888
• Citation: 8 S.W. 68
• Parties: GALVESTON, H. & S. A. RY. CO. v. COOPER.
• Court: Texas Supreme Court

8 S.W. 68

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

Supreme Court of Texas.

February 21, 1888.

Commissioners' decision. Appeal from district court, Fort Bend county; W. H. BURKHART, Judge.

J. C. Cooper filed suit in the district court on March 15, 1886, against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries alleged to have been caused by the negligence of the defendant railway company, and claiming $20,000 as actual damages. The case was tried at the October term, 1886, before a jury, who awarded the plaintiff, Cooper, $20,000, the sum prayed for, as actual damages. Defendant's motion for a new trial was overruled, and it appealed. The court refused the fourth section of third special charge asked by defendant, which is as follows: `Fourth. If the plaintiff's case shows any want of ordinary care on his part under the circumstances of it, even the slightest, contributing in any degree, even the smallest, as a proximate cause of the injury, he cannot recover of defendant company; and plaintiff's negligence, if there was any, is the proximate cause of the injury, when, without such negligence, the injury would not have been inflicted.' It is for you to determine, under all the circumstances in the case, whether or not the railroad officers in charge of the train acted with all possible care on the occasion, considering their duty as carriers of passengers, and considering the time, place, and surrounding conditions; and also whether or not plaintiff acted without ordinary care himself, and, if he did, whether or not his own negligence directly caused his injury, or even directly helped to cause it. And, if the train officers acted with all possible care under the circumstances, then you will find for defendant; or if Cooper's own negligence directly caused, or contributed to cause, his own injury, and if the railroad officers, in the usual and customary discharge of their duties did not know of Cooper's negligence (if you find he was negligent) in time to prevent the injury by using ordinary and reasonable care themselves, in either of these cases your verdict should be for the defendant company. The same amount of care by the railroad officials is not required at crossings, watertanks, and the like, where trains stop for railroad purposes merely, as at regular passenger depots."

Gresham, Jones & Spencer and Mitchell & Mitchell, for plaintiff. Peareson & McCamly, for defendant.

ACKER, J.

Appellee brought this suit to recover damages for personal injury alleged to have been caused by the negligence of appellant's agents and servants. The injury necessitated amputation of the leg between the knee and ankle. Appellant presented a general demurrer to the petition, which was overruled by the court, and this ruling is assigned as error. The petition alleges that the injury was caused by the negligence of appellant's servants in starting the train with a sudden jerk, without notice or signal of any kind; states with much particularity the manner in which the injury occurred, and alleges that it was without any fault or neglect on the part of appellee. We think the petition sufficient, and that the court did not err in overruling the demurrer.

It appears that Randon, the place at which appellee was injured, was not used by the company as a regular station, but was recognized only as a flag station; that is, a station at which the trains did not stop unless signaled to do so by some person there waiting to take passage, or where there was a passenger aboard for that place. No station-master, ticket office, or telegraph office was kept there; but there was a tank there, at which trains frequently stopped to take water. Appellee was injured about midnight. The train had stopped at the Randon tank to take water, and he got off on the platform. As the train was in the act of starting, he attempted to enter the car, and was injured. There was no person there to take passage, nor was there a passenger aboard to disembark there, and this was known to the train officials, but they did not know that appellee had gotten off the train there. Under this state of facts, we think the court should have given the jury a charge embodying the ideas suggested by the last special instruction asked by appellant, and refused by the court, to the effect that if they believed, from the evidence, that Randon was not a regular passenger station, and that appellant's servants in charge of its train knew that no passengers were to get on or off the train there that night, and that they did not know that appellee had gotten off the train onto the platform, then they should determine, from all the facts and circumstances in evidence, whether appellant's servants were guilty of negligence, and, if so, whether such negligence was the proximate cause of appellee's injury, and also defining proximate cause.

In argument to the jury, counsel for appellee, after speaking of Utley, the conductor of the train by which his client was injured, who had testified on the trial, as having committed perjury, and as being in the sleeping coach at the time the injury occurred, used this language: "He may have been back there with a woman, — he may have been back there with his wife, — instead of attending to his duties." On exception being taken, the counsel stated to the jury: "On reflection, as this is not my case, I will take that back; but, if it were my case, I would stick to it." Counsel for appellee also used, in argument to the jury, the following language: "You ought to deal severely with these bloated corporations, that can run their roads right through a man's house or yard." On exception being taken, the counsel further remarked to the jury: "I repeat it, gentlemen. You ought to deal severely with this bloated corporation, that can run its road right through your house and yard, and hold them strictly to their duty." It seems that no effort was made by the court to control counsel, or to require him to confine his argument to the record. Appellee laid his damages at $20,000. The jury returned the following verdict: "We, the jury, find that J. C. Cooper, plaintiff, was injured through the fault of the G., H. & S. A. R. R. Co., and give him judgment for the amount sued for." The court then directed the foreman to write a verdict specifying the finding in dollars; whereupon the foreman wrote the following verdict: "We, the jury, find for the plaintiff the sum of twenty thousand dollars," — which was received by the court, and judgment entered thereon. The language used, and course of argument to the jury pursued by counsel for appellee, was objected to by appellant at the time, and proper exception taken. The attention of the court below was called to it in the motion for new trial; and it is here insisted that the amount of the verdict, as well as the language in which the first verdict was returned, indicate improper motives and prejudice upon the part of the jury, rather than an honest desire to award reasonable compensation for the injury. We are not prepared to say that the amount of the verdict is excessive, though it is large, if plaintiff was entitled to recover, and as to this we express no opinion; but the language employed by counsel for appellee in addressing the jury was not legitimate, and was such as should never be indulged in in any case. The first verdict gave appellee "judgment for the amount sued...