Galveston, H. & S. A. Ry. Co. v. La Prelle

• Decision Date: 07 February 1900
• Citation: 55 S.W. 125
• Parties: GALVESTON, H. & S. A. RY. CO. v. LA PRELLE.
• Court: Texas Court of Appeals

55 S.W. 125

GALVESTON, H. & S. A. RY. CO. v. LA PRELLE.

Court of Civil Appeals of Texas.

February 7, 1900.

Appeal from district court, Caldwell county; H. Teichmueller, Judge.

Action by John La Prelle against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Thos. McNeal and A. L. Jackson, for appellant. A. B. Storey and W. Van Sickle, for appellee.

FISHER, C. J.

This is an action by La Prelle against the railway company for damages arising from injuries inflicted upon him when a passenger on one of the appellant's trains, by the conductor thereof, in an assault and battery upon the appellee. In the trial of the case below, the appellee recovered a judgment for $1,500 against the appellant.

The evidence of La Prelle is to the effect that some controversy arose between him and the conductor concerning the fare, or the amount thereof, which the conductor was entitled to collect. The appellee at that time struck the conductor, who immediately left the train in which the appellee was seated, and went towards a sleeping car in the rear of the train, and in a few minutes the conductor returned with a pistol in his hand; and, according to the testimony of the appellee, the conductor renewed the difficulty, and, without excuse or justification, made a violent assault upon the appellee, struck him with the pistol, knocked him down, kicked him and cursed him, and inflicted the injuries which appellee claims he sustained, and which he fully describes in his testimony. Dillon, the conductor, testified in the case, and he contradicts much of the testimony of appellee. His testimony is to the effect that appellee was not injured to the extent as testified by appellee, and that he did not strike him with the pistol, and did not inflict many of the injuries which the appellee, in his evidence, stated were inflicted by Dillon. The evidence of the witnesses in the case shows that in the car where the assault was made there were other passengers, whose testimony was not produced upon the trial, and their whereabouts, it seems, was unknown to appellee. Long after the assault, and after Dillon, the conductor, had ceased to be in the service of the appellant, he was interviewed by Mr. Van Sickle, who, it seems, is one of the attorneys of appellee, and who then requested of Dillon information as to the names and whereabouts of two of the passengers that were in the car at the time of the difficulty; and upon the trial Van Sickle, over the objection of the appellant, was permitted to testify that Dillon refused to furnish the desired information. A bill of...