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

• Decision Date: 20 February 1914
• Citation: 163 S.W. 1011
• Parties: GALVESTON, H. & S. A. RY. CO. v. CHOJNACKY.
• Court: Texas Court of Appeals

163 S.W. 1011

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

Court of Civil Appeals of Texas. San Antonio.

February 20, 1914.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by John Chojnacky against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, and W. F. Ezell, all of San Antonio, for appellant. Don A. Bliss, of San Antonio, for appellee.

FLY, C. J.

Appellee sued to recover damages alleged to have accrued through the negligence of appellant in allowing a torpedo or other explosive to be present in paper and other refuse, which it became incumbent on him to burn in pursuance of his duties as an employé of appellant. Appellant pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment in favor of appellee for $9,000.

In this case appellee claimed that his eyes were seriously and permanently injured through the explosion of some substance that was among paper and other trash gathered about the station of appellant in San Antonio. During the trial appellee wore dark glasses, and it seems that during a recess of the court two jurymen expressed to the trial judge their desire to have appellee take off his glasses and let the jury see his eyes. This occurred on Saturday afternoon, after both parties had closed their testimony, and after the case had been postponed for the argument until the succeeding Monday morning, and the judge informed appellee's attorney of the request of the jurors, and asked him to inform counsel for appellant. This was not done, but Monday morning appellee was called before the jury by his attorney and caused to remove his glasses, so that his eyes could be inspected by the jury. Before, at the time, and after the inspection took place, appellant claimed the right to have doctors, who might be selected by it, to examine the eyes of appellee. Counsel for appellee objected to the examination because there was no decision holding that, after a plaintiff exhibits his person to a jury, a defendant has the right to have his person inspected by experts, and because he had a case for trial in Sherman, Tex., and he had to start Monday night to reach there on Tuesday afternoon, and, if an examination was allowed, he could not reach Sherman in time. The court refused to permit an examination. A physician had testified that he had treated appellee's eyes, and had in January, 1913, discharged him from treatment, and he "could find nothing that would hinder him from seeing as a person normally ordinarily would." He also stated that with instruments he could look into the eyes and see whether they were injured or defective. Appellee testified: "I could not see at all immediately after the accident, it was about six weeks later before I could see even a yellow light—passed in front of me all the time—my eyesight is just about the same ever since; both eyes just alike, see just as well with one as with the other, no difference in the sight, no difference at all; the smallest object I can see is a person; I can just see the shadow of a person, about 10 feet—no object smaller than a human being, not even shadow." He testified that he could not see a man's hand held before him. Under this state of facts it became very important that appellant should be able to contradict the statements of appellee. The most effective way to contradict the testimony of appellee was to have an examination of his eyes by experts, who could test the extent of his vision. But that examination could not, at any time, be demanded by appellant unless appellee permitted an inspection of his eyes by the jury. The moment, however, that he submitted his eyes for examination to the jury, he doffed the armor placed on his person by the hand of the law, and was the subject of examination of experts.

The leading case in Texas on the subject under consideration is Railway v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 610, in which the able opinion of a majority of the court was delivered by Associate Justice Stephens. The case went to the Supreme Court on a dissent, and the majority opinion was affirmed. 92 Tex. 709, 50 S. W. 574, 51 S. W. 331. It was cited and approvingly quoted from in the case of Railway v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386. The rule enunciated by the Court of Civil Appeals and approved by the Supreme Court is as follows: "But inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, we have finally concluded that the case presents a different question from that so often considered, and that its solution should not be influenced by our cherished Anglo-Saxon principle of personal security. In our opinion it would be a perversion of that principle to apply it in a case like this, where the plaintiff, unfortunate and pitiable though she may be, voluntarily lays bare before the court and jury her afflicted members for the inspection of judge, jury, and advocate. For all the purposes of the trial she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court, of the wounded parts. She thus, by her own voluntary act, conferred upon the court jurisdiction to compel what otherwise she might have...