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

• Decision Date: 20 May 1899
• Citation: 53 S.W. 77
• Parties: HOUSTON & T. C. R. CO. v. WALLACE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

53 S.W. 77

HOUSTON & T. C. R. CO. v. WALLACE.¹

Court of Civil Appeals of Texas.

May 20, 1899.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Suit by Mrs. M. J. Wallace against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit for damages on account of personal injuries instituted by Mrs. M. J. Wallace, a feme sole, against the Houston & Texas Central Railroad Company. She alleges that she received serious personal injuries by reason of being struck by one of the defendant's locomotives, which was being negligently operated by defendant's servants. She alleges that the engine was being operated at a high and unlawful rate of speed, that it made no stops for street crossings, that no bell was being rung as the law required, that no proper lookout was being kept, and that defendant's servants having charge of the engine saw her peril before she was struck, and failed to take proper steps to avoid or lessen injury to her. The defendant pleaded the general denial and contributory negligence. The case was tried, resulting in a verdict and judgment for $2,500 for plaintiff. The defendant has appealed.

R. De Armond, for appellant. Baker & Rhea, for appellee.

FINLEY, C. J. (after stating the facts).

1. The first assignment of error complains of the action of the court in excluding evidence offered by the defendant. The bill of exceptions recites that A. J. Tichenor, a witness for the defendant, being on the stand, was asked by the defendant's counsel if he knew the stepfather of the plaintiff (a man named Tennison), to which he replied that he knew the man, and that he came down once or twice after the accident to talk with him (witness). He was then asked: "Did you have any talk with him about the case?" He answered: "Yes, sir; twice he came to see me. Q. Was he taking an interest in hunting up testimony in this case?" Appellee's counsel objected to this question as irrelevant, immaterial, and incompetent. The court then told counsel for defendant that the objection would be sustained unless he would undertake to connect the plaintiff with the action of said Tennison. Counsel replied that he could not do so, further than the mere relation of the parties might justify the inference of authority. The court then sustained the objection to the question. The bill of exceptions further states that Tennison was not the stepfather of the plaintiff, but was the husband of plaintiff's stepmother. A similar inquiry was made of another witness, which was not allowed by the court, under like circumstances. We are cited to no authority which would condemn the action of the court, and we have no knowledge of any. 7 Am. & Eng. Enc. Law (1st Ed.) p. 68. Besides, the bill of exceptions does not disclose what the witness would have sworn in answer to the question, and, if the question were admissible, we could not determine that the defendant was injured by the ruling. Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763; McAuley v. Harris, 71 Tex. 631, 9 S. W. 679.

2. The second assignment complains that the court required of the defendant and its servants a greater and higher degree of care than that imposed by law, in a special charge given on request of counsel for appellee. The additional charge of the court which is the subject of this assignment is as follows: "In addition to and in connection with the charge already given you, you are further instructed as follows: If you find that plaintiff was struck by said engine, and that her said injuries, if any, directly and proximately resulted therefrom; and if you further find and believe from the evidence that just before she was so struck by said engine, if she was so struck, she was in peril of being struck by said engine, and that the servant or servants in charge of and operating said engine saw and actually knew that plaintiff was in peril of being struck by said engine, if she was so in peril,—then it became and was the duty of defendant's servant or servants in charge of and operating said engine to use every reasonable means at hand to avert striking plaintiff; and if they did not do so, and as a proximate result of their failure to do so, if there was such failure, plaintiff was struck by said engine and received said injuries, then plaintiff would be entitled to recover; and in these events you will find for plaintiff, notwithstanding you may find that plaintiff became involved in such position of peril by a failure on her part, if there was such failure, to use ordinary care, as before defined, for her own safety. But if you find and believe from the evidence that defendant's servants did not actually know of plaintiff's peril, or if they knew it, but did not know of it in time to have averted striking her, if they did strike her, with said engine, by the use of every reasonable means then at hand, then in either of these events you will find for defendant on the issue here submitted, as to whether said servants of defendant could have averted plaintiff being struck, if she was struck, by said engine." Counsel for appellant contends that the law required only ordinary care,— such care as an ordinarily prudent person would have exercised under similar circumstances, —notwithstanding the imminent peril of the plaintiff was known to defendant's servants operating the engine. In support of this contention quite a number of Texas cases are cited. In several of these cases it is said that if, after the imminent peril is discovered, the train operatives fall to exercise ordinary care to avoid or lessen the injury, the railway company is liable. Railroad Co. v. Smith, 52 Tex. 178; Railway Co. v. McDonald, 75 Tex. 41, 12 S. W. 860; Railway Co. v. Garcia, 75 Tex. 590, 13 S. W. 223. The doctrine of a new duty arising upon the discovery of imminent peril has been more fully discussed and developed in later decisions. In Breadow's Case (decided June 18, 1896) 90 Tex. 27, 36 S. W. 410 (opinion by Justice Denman), the court defines defendant's duty in case of discovered peril as follows: "If...