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

• Decision Date: 08 March 1892
• Citation: 19 S.W. 151
• Parties: GULF, C. & S. F. RY. CO. v. JOHNSON.
• Court: Texas Supreme Court

19 S.W. 151

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

Supreme Court of Texas.

March 8, 1892.

Commissioners' decision. Section A. Appeal from district court, Dallas county.

Action for personal injuries by W. H. Johnson against the Gulf, Colorado & Santa Fe Railway Company. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Alexander & Clark and J. W. Terry, for appellant.

COLLARD, J.

This is a suit for damages by appellee against appellant, alleged to have been caused while he was in the discharge of his duty as an employe of defendant by the derailing of a hand-car. He recovered judgment for $2,000, and defendant has appealed.

The first assignment of error is that the court should have sustained defendant's general demurrer and special exceptions to the petition, because it appeared therefrom that the defects in the hand-car, the alleged cause of its derailment, were known to plaintiff, or would have been known to him, if he had exercised ordinary care. The defects alleged were that the hand-car "was wholly unfit for use, with its boxes in its wheels loose, permitting said wheels to slip in and out of said axles, and with the joints of the lever of said hand-car and all of the other joints loose." It was also alleged that such defects rendered its use very dangerous, that defendant knew of such danger, and that plaintiff was wholly ignorant of the fact. When machinery furnished by a railway company is rendered dangerous by reason of defects therein while in use by its employes, and the defects are open and patent to common observation, and should have been seen by the employe had he exercised such prudence as a man of ordinary prudence would have exercised under like circumstances, he cannot recover for injuries received because of such defects while operating the machinery. Such risks are incident to his employment. Railway Co. v. Lemon, (Tex. Sup. 1892,) 18 S. W. Rep. 331, and authorities cited. The petition, in this case, does not show that plaintiff knew, or ought to have known, of the defects in the hand-car. The intervention of a jury, under proper instructions, would be required to determine the facts. The court could not do so on demurrer or exceptions.

Plaintiff testified that he did not know the condition of the hand-car at the time he was injured, but afterwards examined it, some week or 10 days after, and found it in the condition alleged. It is insisted by appellant that the admission of this testimony, over defendant's objections, was erroneous, because the question was, what was the condition of the hand-car at the time of the accident? We cannot sustain the assignment. The testimony was to the point in issue, and there was no inference deducible from it that it was not in the same condition when the accident occurred that it was when plaintiff examined it.

The court permitted plaintiff to recall to the stand his witness Dr. Robertson, after he had been examined and discharged, to testify to material facts concerning the partial dislocation of plaintiff's hip, attributed to the derailment of the hand-car. This ruling is assigned as error upon bills of exception reserved at the time. There was no error. The statute provides that "the court may, in its discretion, at any time before the conclusion of the argument, where it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and limitations as the court may prescribe." We know of no absolute rule imposing upon the court the duty of refusing to hear a witness testify further as to important facts within his knowledge after he has once been examined and discharged. Such matters are in the discretion of the presiding judge. In the instance before us there is nothing calling for a criticism of the court's ruling, or showing that he had abused his discretion.

It is insisted by appellant that the court erred, as shown by bill of exceptions, in sustaining plaintiff's objection to the following question: "Mr. Johnson, you have testified as to how you were injured, and as to the extent of your injuries. Will you now please explain to the jury why you alleged in your petition, (reading from the petition:) Said hand-car ran off the track, and threw this plaintiff violently to the ground, a distance of several feet, and that in said fall this plaintiff received and suffered great bodily injuries, that his right hip was dislocated, and his back seriously sprained?" The assignment says: "The court erred because plaintiff had testified that he was not thrown from the car, but jumped from the car, and lit on his feet, and that his back was not sprained; the evidence in response to the question being sought to show the jury the variance between plaintiff's allegata and probata." We do not see how the plaintiff's explanation of his petition's allegations, and why they were made, could aid the court or jury in deciding whether there was a variance or not. The question assumed that there was a variance. If there was, it showed for itself, and plaintiff's explanations of his pleadings would not make it more apparent. Besides, as will be seen further on the assumption of variance was not correct, according to the plaintiff's testimony, as we understand it.

It is claimed that "the court erred in permitting plaintiff's attorney in his argument to state: `Gentlemen, about what should be the measure of damages in a case where the plaintiff is permanently injured, and unable to make a living but by manual labor, is compelled to go through life a pauper? Should he be turned out on the public an object of charity?' — because such remarks were without evidence, and were intended and no doubt had the effect of wrongfully influencing the jury to find for plaintiff." When objection was made to this speech by defendant, plaintiff's counsel immediately withdrew it. The court sustained the objection, and instructed the jury not to consider it. If the remarks were improper, not authorized by the testimony, the course pursued by the plaintiff's attorney and the prompt ruling of the court corrected the error. The jury assuredly after this could not have been left with prejudiced minds against defendant on this account.

It may now be necessary to state the facts of the case more fully in order to better understand the issues. Plaintiff testified substantially to the facts alleged in his petition. Including plaintiff, there were five men on the hand-car, section hands in the employ of defendant. They were returning from their work to the section-house where they boarded and slept. Plaintiff and another man were in the...