Gary v. Gulf, C. & S. F. Ry. Co.

• Citation: 42 S.W. 576
• Parties: GARY v. GULF, C. & S. F. RY. CO.
• Decision Date: 23 October 1897
• Court: Court of Appeals of Texas

42 S.W. 576

GARY v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas.

October 23, 1897.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by John B. Gary against the Gulf, Colorado & Santa Fé Railway Company. Plaintiff recovered judgment for $1.35, and appeals. Reversed.

Chas. I. Evans and Cockrell & Muse, for appellant. Alexander, Clark & Hall, for appellee.

BOOKHOUT, J.

The appellant, as plaintiff below, brought suit against appellee, the Gulf, Colorado & Santa Fé Railway Company, as a common carrier of passengers, for personal injuries alleged to have been sustained by his wife, Sophia Gary, while she was a passenger on appellee's railroad. Plaintiff alleged substantially that his said wife, Sophia, was on her way from Kaufman, Tex., to Merit, Hunt county, Tex., by way of Dallas, and that upon reaching Dallas she bought a ticket over defendant's line of railway from Dallas to Merit, and boarded a train on said railway which she supposed would take her to Merit; that, after the train had moved out and been running some minutes, the conductor came around to take up tickets; that he took Mrs. Gary's ticket, and kept it, and told her she was on the wrong train, and that she would have to get off; that the conductor pulled the bell cord, and had the train stopped, and then picked up her valise, and called out to her to come quick; she followed with her babe in her arms, and, as she was about to jump or get off the train, the train started with a jerk, throwing her off on the ground; that in her fall she sprained her ankle, badly bruised her hips; that she was barely able to walk. Her injuries were alleged to be permanent. The facts were reiterated in a count for punitory damages, it being alleged in said count that the railroad company was guilty of gross negligence and violence in putting plaintiff's wife off the train. Plaintiff prayed for judgment for $5,600 actual and $5,000 punitory damages. Defendant railroad company pleaded a general denial and contributory negligence on the part of Mrs. Gary. There was a trial, and verdict and judgment for plaintiff for $1.35, the amount paid by Mrs. Gary for her ticket from Dallas to Merit. Plaintiff filed a motion for new trial, which being overruled, he excepted, and gave notice of appeal, and has prosecuted his appeal to this court.

Appellant presents but two assignments of error and but two propositions for the consideration of this court. In his first assignment of error, appellant complains of the ruling of the court in refusing to permit him to prove by his wife "that all of the defendant's trains back into the depot at Dallas on a Y from the main track, and all were headed in the same direction,—south; that, at the time Mrs. Gary boarded defendant's train, there were no signboards of any kind displayed on its platform to inform passengers whether its trains were going north or south; and that no employé of defendant called out which way trains were going." The statutes of Texas do not impose the duty upon railroads to display upon their platforms signs showing which way its trains are going, nor require them to have an employé call out the direction the train is going. The evidence of Mrs. Gary was to the effect that she started to get on one of defendant's trains about half-past 3 o'clock, but was told by a man (she did not know who he was) that she was getting on the wrong train. She then went back, and waited until the next train came in. She further testified that the man who told her she was getting on the wrong train traveled with her from Kaufman to Dallas, over the Texas Trunk road, that morning. Had she taken the first train, as she started to do, there would have been no mistake. She did not make any inquiry of defendant's agents as to which train to take. The pleadings and evidence do not allege or show any direct damage to Mrs. Gary in her...