Galveston, Harrisburg & San Antonio R.R. Co. v. Le Gierse
Decision Date | 01 January 1879 |
Parties | GALVESTON, HARRISBURG AND SAN ANTONIO RAILROAD CO. v. CECILE LE GIERSE. |
Court | Texas 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, -- 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--
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--
The court refused the following instructions, asked by the defendant:
* * *
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.”
Additional charge asked by defendant and refused:
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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