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

• Citation: 30 S.W. 592
• Court: Court of Appeals of Texas
• Decision Date: 21 March 1895
• Parties: GULF, C. & S. F. RY. CO. v. SOUTHWICK et al.

30 S.W. 592

GULF, C. & S. F. RY. CO. v. SOUTHWICK et al.

Court of Civil Appeals of Texas.

March 21, 1895.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by J. S. Southwick and others, child, husband, and mother, respectively, of deceased, against the Gulf, Colorado & Santa Fé Railway Company, for damages. From a judgment for plaintiffs, defendant appeals. Reversed.

J. W. Terry, for appellant. Lovejoy & Sampson and Spencer & Kincaid, for appellees.

PLEASANTS, J.

This is an appeal from a judgment of the district court of Galveston county for appellees against appellant for damages alleged to have resulted to them from the death of Mrs. Sue Hardeman Southwick, the wife of appellee J. S. Southwick, the mother of appellee Sue Kyle Southwick, and the daughter of the other appellee, Mrs. Sarah Hardeman. Mrs. Southwick, while alighting from the car on appellant's road during the nighttime, in the town of Alvin, in January, 1893, fell and struck her head against the steps of the car, and from the injuries received in the fall she died about two weeks thereafter. The petition charged that her fall, and the injuries consequent, were the proximate result of the negligence of the defendant company and its servants in not providing suitable and safe facilities for alighting from the car, and in not sufficiently lighting the depot, and in not rendering to Mrs. Southwick proper assistance as she was stepping from the platform of the car to the platform of the depot. There was no platform in the depot yard, but the ground had been raised several inches by fillings of shell and cinders; and beneath the steps of the car, when the train halted at the depot, a stool was placed upon the ground, and upon which passengers leaving the train were expected to step before they alighted upon the ground. The stool used on this occasion is what is known, according to the testimony of the conductor of the train, as the "Pullman stool"; and Mrs. Southwick, in descending from the steps, either did not place her foot upon the stool, or, if she did, it either careened or capsized. The defendant answered by general denial and by plea of contributory negligence. The trial resulted in a verdict for the plaintiffs for the sum of $13,000, — $7,000 for the child, $4,000 for the husband, and $2,000 for the mother.

The appellant's assignments of error are very numerous, but we shall discuss them so far only as may be necessary to express our opinion of the law of the case, in view of another trial.

F. A. Taylor, the conductor of the train at the time of the accident, was placed on the stand by the defendant company, and, in response to questions by defendant, the witness testified as to the condition of the depot yard, and as to many other matters bearing upon the question of negligence on part of defendant, and he also pointed out the stool, or the kind of stool, used at the time the deceased was injured; and, on cross-examination, plaintiffs, through their counsel, propounded the following question: "Did you state in the depot, after Mrs. Southwick was brought into the depot, that I told those people that those stools would kill somebody yet?" To this question the defendant objected, on the ground that the answer of the witness would be irrelevant, incompetent, and immaterial, but the objections were overruled, and the witness permitted to answer, and who testified that he did not make such statement, to which ruling of the court the defendant excepted; and afterwards, during the further progress of the trial, the plaintiffs called to the witness stand two witnesses, and to each one propounded this question: "Did you hear the witness Taylor, in the depot at Alvin, just after Mrs. Southwick was brought in, declare, `I told those people that those stools would yet be the death of some one?'" and to each of said questions the defendant objected, on the ground that the same was immaterial and irrelevant and incompetent, but the objections were overruled, and each witness testified that he did hear the witness Taylor make such declaration, at the time and place mentioned in the question, — to all of which the defendant excepted, and these rulings of the court are assigned as error, and the assignment, in our judgment, should be sustained. The objections to the question propounded to Taylor, as well as those propounded to the impeaching witnesses introduced by appellees, should have been sustained. Any opinion Taylor may have expressed to the company about the stools used by the company was not competent evidence, tending to show that the stools were either safe or unsafe implements. Nor was the declaration by the witness, at the time of the injury to the deceased, of what he may have said to the company on a previous occasion, any part of the res gestae. Neither was such declaration, if made by Taylor, admissible for the purpose of impeaching or contradicting him; for the obvious reason that such declaration, if made to the company, was not inconsistent with Taylor's testimony on the stand, the witness not having expressed an opinion on the stand that such stool afforded safe means for alighting from the cars. Vide 1 Whart. Ev. § 551.

From the great number of charges requested by defendant, being 60 in number, we would hesitate to reverse the judgment in this case for errors committed by the court in refusing these charges, but the case must be reversed for other reasons, and we will, therefore, point out wherein we consider the court erred in reference to these charges. The court was requested to instruct the jury that in estimating the damages, if any, sustained by the plaintiff J. S. Southwick in the death of his wife, they should consider the expense of maintaining the wife, and the measure of damages would be the pecuniary value of the wife's services, less the cost of properly and suitably maintaining her. This charge, in the opinion of this court, or a majority of its members, should have been given. The court very properly informed the jury that the husband could only recover damages...