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

• Decision Date: 11 February 1903
• Citation: 73 S.W. 88
• Parties: GULF, C. & S. F. RY. CO. v. BLANCHARD.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 88

GULF, C. & S. F. RY. CO. v. BLANCHARD.^*

Court of Civil Appeals of Texas.

February 11, 1903.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by L. F. Blanchard against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. K. Lee and J. W. Terry, for appellant. Henderson, Streetman & Freeman, for appellee.

KEY, J.

On the 2d day of August, 1901, L. F. Blanchard was riding in a wagon along a public street in the town of Cameron, and when he came to where the Gulf, Colorado & Santa Fé Railroad crosses the street, he found a long train standing on the track, the rear end of which was obstructing most of the street. He undertook to drive across the street, and, while doing so, the train was moved backward, struck the wagon, and caused him to either fall or jump out. On September 9, 1901, Blanchard brought this suit against the railway company, charging that, as a result of the collision referred to, he was seriously and permanently injured, and also charging the defendant with several acts of negligence. In its answer, the defendant charged the plaintiff with various acts of contributory negligence. The case went to trial on November 12, 1901, and resulted in a verdict and judgment for the plaintiff for $7,000, and the defendant has appealed.

1. The trial court prepared and submitted to the jury a very fair and correct charge; and, in addition thereto, gave all the special instructions (nine in number) requested by the defendant. Nevertheless, some objections are now urged to the court's charge. Without discussing them in detail, we hold that they are without merit, and that the court's charge, as supplemented by the requested instructions given, was as favorable to the defendant as it was entitled to.

2. We also overrule the assignments which complain of the verdict. If the jury gave credence to the testimony submitted by the plaintiff, we cannot say that the verdict is wrong. It is true that the defendant adduced much testimony tending to break down the plaintiff's case, and indicating that he was not seriously injured. But it conflicted with that produced by the plaintiff, and the jury had the right to conclude that the evidence on behalf of the plaintiff was more credible than that offered for the defendant.

The verdict involves findings of fact to the effect that the defendant was guilty of negligence; that the plaintiff was not guilty of contributory negligence; and that, as a direct result of the defendant's negligence, the plaintiff was injured to such an extent as entitled him to recover $7,000 as compensation therefor. And we hold that there is testimony in the record that sustains all these findings, and the defendant is not entitled to a reversal on account of the objections urged against the verdict.

3. One of the defendant's attorneys made a verified statement to the effect that while he was in company with an attorney for the plaintiff, near the jury room, while the jury were considering the case, he heard a juror say, in substance, that special charges were not to be considered as any part of the law of the case, but merely as embodying the views of the attorneys asking such charges. A juror also made oath that, after the case was submitted to the jury, and while they were considering of their verdict, he did not hear the special charges read or considered, and that the general charge given by the judge was read and discussed several times.

Contesting these charges, the plaintiff filed affidavits made by the foreman and another juror to the effect that the foreman read each special charge to the jury several times, and that they were considered by the jury as part of the law of the case. Also the plaintiff's attorney, who was referred to by the defendant's attorney, filed a verified statement to the effect that he was for a short time near the jury room with the defendant's attorney, and heard some member of the jury say that a certain charge was signed by the judge, and that others were signed by the attorneys for the defendant, but did not hear the other statements which the defendant's attorney said he heard.

Thus standing the testimony on the subject, the trial court may have held that the charge of misconduct against the jury was refuted, and we cannot say that such holding was erroneous.

4. The refusal of the court below to award the defendant a new trial on account of newly discovered evidence is assigned as error, and that assignment is strenuously urged in the brief and argument submitted for the appellant.

After giving the question thorough consideration, a majority of this court have reached the conclusion that the showing of diligence to procure the testimony before trial was not sufficient, and that, for that reason, the motion for a new trial was properly refused. The new witness is a Mrs. Mullen, and her affidavit, as well as affidavits made by J. M. Ralston and J. W. Evans, were filed with and in support of the motion for new trial.

Mrs. Mullen's affidavit states: "On the 2d day of August, 1901, I was in Cameron, Milam county, Tex.,—and stopped at the Ruby Hotel, and in the evening of said day, while standing in the front door of said hotel, about seventy-five yards from where the railroad crosses Belton street just below the jail, I saw a man attempt to cross said railroad with a canvas-top hack, and, before his hack got across, I saw the caboose, which was attached to a train of cars, come back up against the hind part of the hack, and pushed or shoved the hind part of said hack around and off the track, but did not turn it over. Then the man who was in the hack got out of the hack at the front end, and when he jumped out he lit on his feet, and it is my impression that he did not fall at all, if at all not lower than his knees, and was up in an instant. He did not fall down. I was looking right at him, in plain view of the whole affair. He did not get out of the hack at all until the hack had been pushed off the track, and the end of the caboose had passed the hack. The hack was stopped and still, at the time he got out of the hack, he held to the lines and was working around there after he got out, and I did not think of his being hurt after seeing the way he got out of hack, and the manner the caboose pushed the hack around, so I paid no more attention to the affair and heard nothing about it. I left for my home on the 2:30 train Sunday morning after the occurrence on Friday, and the next time I heard any more about it was when I went to Cameron as a witness in the Moore Case, and the jury had rendered a verdict in the case. I heard Mr. A. S. Ruby speaking about the case having been tried, and I then remarked to Mrs. Ruby that I had seen that accident when I was there before. I did not mention that matter to any one before the trial of the case; thought nothing more about it until I heard about the trial having been had. I never mentioned these facts to any of the railroad company's agents, attorneys, or employés until after the trial of said cause, and the first they could have known of my seeing the accident was after the trial, and after my conversation with Mr. and Mrs. Ruby. I am a stranger in Cameron, and was never there except on these two occasions, and was there upon these two occasions as a state witness in the Moore case, and I had no communication from anyone from Cameron or Milam county between these two visits, and told no one about having seen the accident until after the trial of said case."

J. N. Ralston's affidavit states: "I was local attorney of defendant at Cameron, and in connection with J. W. Evans, claim agent, was intrusted with the duty of getting up all the facts and witnesses in regard to how the accident occurred, and I did make diligent inquiry to find out names of all witnesses who saw the accident or knew anything about it, and did not hear anything of Mrs. M. R. Mullen until after trial of this case."

J. W. Evans' affidavit states: "I am now, and was at the time that the accident occurred to L. F. Blanchard, claim agent for defendant, and it is my duty and business to investigate the facts in reference to any claim made or likely to be made against the said company for damages; and, when the accident in question occurred, I, in the discharge of my said duties, came to Cameron, the third day after it occurred, to investigate the facts, and learn and ascertain what person or persons saw the accident or knew the facts about it; and from that time on to the day of the trial of the case I was constantly investigating and inquiring of all persons I had any intimation knew of any facts or testimony bearing on the case; and I, in connection with J. N. Ralston, the company's local attorney, had full charge of the investigation of the facts and preparing the company's defense in this cause. I did investigate the same as fully and as thoroughly as possible, and did develop all sources of information that came to my knowledge, and did locate and talk to all witnesses that I could hear of, but, notwithstanding all this, the defendant was not advised and did not know that Mrs. M. R. Mullen knew and would testify to any facts material to the defense of this case, or would testify to the facts set forth in her affidavit attached to the defendant's motion for a new trial, until after the said case was tried and verdict rendered. That, as shown by her said affidavit, she did not live in Cameron, but was a stranger there, only a strange guest at a hotel, and left Cameron two days after the accident, and went to her home near Copperas Cove, and did not return to Cameron until after the trial of this cause. I did not know, and had no means of finding out the fact, that she knew anything about the accident in question, or that she knew of any of the facts set forth in her affidavit until after the trial."

The defendant knew from information derived from...