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

• Decision Date: 08 April 1903
• Citation: 73 S.W. 411
• Parties: GALVESTON, H. & S. A. RY. CO. v. MATHES et al.
• Court: Texas Court of Appeals

73 S.W. 411

GALVESTON, H. & S. A. RY. CO. v. MATHES et al.

Court of Civil Appeals of Texas.

April 8, 1903.

Appeal from District Court, Brewster County; J. M. Goggin, Judge.

Action by Fannie M. Mathes and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiffs, defendant appeals. On rehearing. Reversed.

This suit was brought by appellees against appellant to recover damages for alleged personal injuries sustained by Mrs. Mathes while a passenger upon appellant's railroad. The allegations in appellees' petition are substantially as follows: That Mrs. Mathes, having purchased from appellant a ticket which entitled her to transportation from Sanderson to Marathon, on the night of July 9, 1901, took passage on one of appellant's trains at the first for the last named station; that when the train was nearly approaching the intermediate station of Haymond, one of appellant's servants, whose duty it was to call the names of the stations, distinctly called out "Marathon" in her presence and hearing; that being a stranger in that part of the country, and ignorant of the location of Marathon, and relying upon the announcement of appellant's servant, and believing therefrom that that station had been reached (it being dark and the depot unlighted, and on that account being unable to distinguish the mistake in the announcement), she made due haste to alight, and, while in the act of doing so (with one foot reaching the ground, the other on the lower step, with her hand grasping the railing of the platform), the train, not having stopped reasonably long enough to enable passengers to alight therefrom, was negligently started, without warning, by a violent jerk forward, and put in rapid motion, whereby she was hurled to the ground, and thereby seriously and permanently injured, to her damage, etc. The defendant answered by general and special exceptions, by a general denial, and by special denials to each and every material allegation of negligence on its part, and specially pleaded contributory negligence, in that she was injured in attempting to alight from the train when it was in motion. The trial of the case, which was before a jury, resulted in a verdict and judgment in favor of appellees for $7,750. Except as to Mrs. Mathes being a passenger, and having been injured in alighting at night from its train at Haymond, there is a conflict of evidence upon all other material issues—there being evidence on the part of appellant tending to show (1) that, just before its train upon which Mrs. Mathes was a passenger reached Haymond, that station was clearly and distinctly announced several times by its servant in the presence and hearing of appellee, and evidence tending to show that she was asleep at the time such announcements were made; (2) that the train stopped at Haymond a reasonably sufficient time to allow passengers to disembark with safety, and that the depot was sufficiently lighted; (3) that the train was not started forward with a violent jerk, but moved off gradually, in the ordinary way; and (4) that appellee's injury was caused by jumping off the train after it had started from the station. The testimony offered by appellees was in conflict with that of appellant upon all these matters. Inasmuch as the judgment will be reversed upon a matter of law, we deem it improper for us to take further notice of or intimate in whose favor the testimony on any of these issues preponderates.

Baker, Botts, Baker & Lovett and Ellis, Garner & Love, for appellant. H. E. McMains and Joseph Jones, for appellees.

NEILL, J. (after stating the facts).

The plaintiffs having filed their affidavit entitling them to sue in forma pauperis, defendant filed its motion to make Joseph Jones and H. E. McMains, plaintiffs' attorneys, parties plaintiff, on the ground that they were necessary parties by reason of the fact that they were pecuniarily interested in the result of the suit, and offered in support of its motion to introduce McMains as a witness to prove that he and Jones had a parol contract with plaintiffs whereby they were to receive one-half of any amount they might recover in the suit, and that by its terms Jones & McMains were to pay in advance the necessary cash expenses in the prosecution of the suit, to which testimony plaintiffs, by their attorneys, objected; and their objection being sustained, and motion to make new parties being overruled, a bill of exceptions was taken by the defendant to the action and ruling of the court, which is made the basis of appellant's first and second assignments of error. When a plaintiff suing for tort assigns to his attorneys an interest in the cause of action declared upon, the attorney does not become a necessary party to the suit by reason of such assignment, and said attorney cannot be made a party to the suit upon motion of the adverse party; it being only pa...