Galveston, Harrisburg & San Antonio R.R. Co. v. Le Gierse

Decision Date01 January 1879
Citation51 Tex. 189
CourtTexas Supreme Court

APPEAL from Colorado. Tried below before the Hon. Everett Lewis.

June 11, 1877, in the District Court of Colorado county, Cecile Le Gierse, surviving wife of Louis Le Gierse, deceased, having qualified as survivor, and the mother of two minor children, the issue of her marriage with the deceased, sued the Galveston, Harrisburg and San Antonio Railroad Company for damages, for causing the death of said Louis Le Gierse while, as a passenger, he was attempting to get aboard the train of defendant at Borden, a station in said county.

It was charged that the train was checked in speed, apparently came to a halt, and was immediately started, and that Louis Le Gierse was attempting to get aboard the train, when, by the negligence in the management of the train,--it being started before the expiration of five minutes and its speed accelerated,--he was thrown from the cars and his death caused.

Defendant demurred; denied specially the acts of negligence charged, and alleged performance of all the usual and necessary precautions against danger, charging the acts of Le Gierse as contributory to the result; and general denial.

There was no notice of the minors taken in the proceedings.

The testimony is voluminous, but shows, substantially, that on the day alleged Le Gierse and Morris were at Borden, waiting for the train, at a store fifty or seventy-five yards from the depot. As the train approached, the whistle was blown, at the tank, a distance of two hundred yards or over. They heard the signal and started to the station. When the train reached the station, no one was there except the agent, who did not know that Morris and Le Gierse were at Borden. The conductor got out of the cars upon the platform. The mail was delivered and received and letters exchanged. No passenger offered for transportation. The cars moved on, and after the conductor had gone into the cars, and had passed nearly the length of a passenger coach, Morris came into the car by the same door the conductor had entered, and moved rapidly toward him, and upon reaching and speaking to him, the conductor had the train stopped and backed. Le Gierse was found lying on the ground near the track, fifteen or more steps east of the depot platform, severely injured.

He was taken up, placed upon the train, and carried to Columbus, where he died a few days afterwards from the effects of his injuries. After he was taken into the car,--in response to an exclamation by the conductor, “Great God, Mr. Le Gierse, why did you not give me some signal, or let me know that you wanted to get on the train? I would have stopped for you at any time,”--Le Gierse said, “I am suffering very much; nobody is to blame;” or, “I blame no one.”

A witness testified that, when the train was about starting, he saw two men, about sixty or seventy feet from the store, running towards the train.

Morris testified that he and Le Gierse ran upon the platform and attempted to get on the train while it was in motion. He further said, that if he and Le Gierse had been upon the platform when the train arrived, he thinks they could have got on without difficulty.

There was conflict of testimony as to whether the train came to a stop at the station, whether the usual signals and precautions were observed, and as to the duration of the halt made at the station.

In the course of the trial, and after it had been shown by testimony that Morris and Le Gierse were together at the time Le Gierse attempted to get upon the train, and had been together previous to that time, and that Morris was in the car in which Le Gierse was placed after the accident, defendant asked a witness (Howe) the question: “Did or did not, at the time first mentioned, Morris say, in your hearing, and in the presence and hearing of Le Gierse, that he (Morris) and Le Gierse had left the house or store on the hill after the ringing of the bell for the departure of the train, and that there was nobody to blame but themselves?” To which plaintiff objected, and the objection was sustained.

The court instructed the jury--

“1. If the jury believe from the evidence that the plaintiff, Cecile Le Gierse, and mother of the two minor children, as mentioned in her petition, and that the said Louis Le Gierse died on or about the 19th day of March, 1877, from injuries received by him through the negligence, carelessness, or unlawful conduct of the Galveston, Harrisburg and San Antonio Railway Company, its agents or employés, in the control or management of the train of said company, whilst the said Le Gierse was a passenger on such train, or offering or attempting to take passage thereon, and that such injuries were not caused by the negligence, carelessness, or recklessness of the said Le Gierse, then and in such case they will find for the plaintiff, and assess the damages in such amount as in their judgment, upon the evidence, will be proportionate to, and will compensate her for, the injury sustained, not to exceed, however, the amount claimed in the petition.”

“2. If the jury believe that the conductor of said train, then at Borden, was in the habit of stopping at Borden station less than five minutes, and that the defendant had knowledge of said custom, or had no regulation requiring the said employé to stop said train at said station five minutes, and at the time Le Gierse attempted to board said train the conductor had not caused said train to stop at said station five minutes before he set the same again moving forward, then in such case the defendant would be responsible for the action of the said conductor; and should the jury believe from the evidence that the accident resulted from the management and movement of said train, and not from the negligence of the said Le Gierse, they should find for plaintiff, subject to the preceding and following instructions.”

3. Is set out in the opinion.

4. Related to custom to take passengers at that station without tickets, &c.

5. Defined negligence, and not excepted to.

At instance of defendant--

“7. Ordinary care is incumbent on a party who has suffered from a collision with a railway train; and when both the railway company and the individual are in the wrong, neither can recover of the other. The law will not apportion the damages suffered by wrong-doers. Hence, if the jury believe that Le Gierse was wanting in ordinary care, and was thereby injured, then the plaintiff in this case cannot recover.”

“8. The jury will also inquire whether or not it is customary for men of ordinary prudence to attempt to get on trains when in motion; and if they find it is not customary for ordinarily prudent men to attempt to get on trains while in motion, and that Le Gierse acted contrary to such custom in attempting to get upon defendant's train, then and in that case they will find for defendant.”

The court refused the following instructions, asked by the defendant:

“5. When a party is intending to get upon a railway train, attempts to do so while the train is in motion, and is injured in such attempt, he is guilty of such negligence as would prevent his recovery in a suit for damages against the railway company; nor could the representatives of a person thus injured recover, where the injured party has died in consequence of injuries so received.”

“6. If the train has left its regular station, and has moved beyond such station or the platform erected for the accommodation of passengers, and is moving and increasing its speed, and the person injured attempted to get on the train beyond such station or platform, then the act of such party making such attempt is gross negligence on his part, for which the railway company is in no way responsible.” * * *

9. That the law requiring railway trains to stop at each station for five minutes, had no application to the case, and that if it had not made such stop, still, “if the party should attempt to jump or get upon the train while in motion, it would then be proper for the jury to find whether such attempt would be contributory negligence on his part.”

“10. That if the railway company gave the customary and usual signals for starting, and that the train moved in accordance therewith, and Le Gierse attempted to get upon the train while in motion, plaintiff could not recover, although the train may have been started too soon.”

Additional charge asked by defendant and refused:

“If the jury find for the plaintiff, then they will estimate the damages to the plaintiff by reason of the death of her husband; and in doing this, the only question for them to determine is the pecuniary loss to the plaintiff. The feelings of the plaintiff, her wealth or poverty, or any other fact than the pecuniary injury, cannot be considered in assessing the damages, and the loss in a pecuniary way will be determined by the jury from the evidence alone.”

The demurrers were overruled. Verdict and judgment for the plaintiff for $19,000. Motion for new trial was overruled, and the defendant appealed.

The errors assigned are--

1. Overruling the demurrer of defendant.

2. Excluding the testimony of Howe to the conversation between Morris and the conductor, in Le Gierse's presence, soon after the accident.

3. The second charge to the jury, because the same is misleading, contrary to law, and upon the weight of evidence.

4. The court erred in its fourth charge to the jury.

5. Error in refusing the fifth, sixth, ninth, eleventh, twelfth, and last charges asked by the defendant.

6. Overruling the motion for new trial. (The second ground for new trial, and referred to in the opinion, is as follows: “The court erred in that part of its first charge to the jury, in relation to the amount of damages, in failing to give to the jury any guide as to the measure of damages, although asked by the defendant to give them such a guide.”)

7. The verdict of the jury and the judgment...

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