Houston & T. C. R. Co. v. Swancey

• Decision Date: 07 May 1910
• Citation: 128 S.W. 677
• Court: Texas Court of Appeals
• Parties: HOUSTON & T. C. R. CO. v. SWANCEY.

128 S.W. 677

HOUSTON & T. C. R. CO. v. SWANCEY.

Court of Civil Appeals of Texas.

May 7, 1910.

Rehearing Denied May 28, 1910.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by J. R. Swancey against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Head, Dillard, Smith & Head, and Sidney Wilson, for appellant. E. J. Smith and John C. Wall, for appellee.

RAINEY, C. J.

We take from appellant's brief the following statement of the case, viz.: "J. R. Swancey, appellee, filed his original petition on the 12th day of January, 1909, in the district court of Grayson county against the appellant, Houston & Texas Central Railroad Company, alleging that he was a negro, a resident of Grayson county, Tex.; that on the 16th day of December, 1908, he boarded one of defendant's passenger trains at Dallas to go to his home in Denison, bought a ticket, paying $2.20 for it, from appellant's agent, took a seat in the colored apartment, gave the ticket to the conductor, and became a passenger on the train; that, when the train was near Denison, he got up and prepared to alight; that while standing in the aisle the train ran around a sharp curve at a reckless rate of speed, and the water cooler attached to the coach opposite to plaintiff was broken from its fastening, hurled across the coach, and struck plaintiff with great force, throwing him to the floor, inflicting serious, painful, and permanent injuries upon him; that he is 36 years old, a minister of the gospel, and by such work or by work as a farmer or other laborer he was able to earn, and was earning, $125 per month; that since his injury, and by reason thereof, he has been unable to work, and will in the future be incapacitated from his labors. Defendant filed its original answer March 1, 1909, pleading a general demurrer, general denial, and contributory negligence on the part of appellee, alleging that, if any injuries were received by appellee, they were caused and contributed to by plaintiff's own negligence and want of ordinary care, and that plaintiff had full notice, and by the exercise of ordinary care on his part could have avoided the injury. The case was tried before a jury on April 29, 1909, and resulted in a verdict and judgment for appellee for $4,000." We conclude that the evidence fully sustains the allegations of appellee's petition as set forth in said statement; that appellee was not guilty of contributory negligence; that appellant was guilty of negligence, and the verdict of the jury is not excessive.

Appellant complains of the court's action in excluding the testimony of appellee to the effect that the half-fare minister's permit held by him purported to exempt defendant from liability. The witness had previously stated that he had a minister's permit for half-fare, but on this occasion had paid full price for ticket. The reason he did not get a half-fare ticket was, in substance, that it takes some little time to get a half-fare ticket fixed up, and, fearing he would he left, he bought a full-fare ticket. Appellant sought by circumstances to show that appellee had by some means unloosed the fastenings of the water cooler, which caused it to fall, and this was done by appellee with the intent to cause the fall, that he might have some ground upon which to base negligence, appellee thinking he could not recover if he bought a half-fare ticket and concluded to buy a full-fare ticket. The testimony was offered as a circumstance as tending to establish said theory. We...