I. & G. N. R'Y Co. v. Irvine, Case No. 1852.

• Decision Date: 23 October 1885
• Docket Number: Case No. 1852.
• Citation: 64 Tex. 529
• Court: Texas Supreme Court
• Parties: I. & G. N. R'Y CO. v. A. C. IRVINE.

64 Tex. 529

I. & G. N. R'Y CO.

v.A. C. IRVINE.

Case No. 1852.

Supreme Court of Texas.

Oct. 23, 1885.

APPEAL from Wood. Tried below before the Hon. Felix J. McCord.

Appellee sued for damages for personal injury caused by negligence of appellant and its servants and agents, alleging that about the 26th of February, 1883, he paid the fare demanded of him by the conductor of appellant's train for a first-class seat on appellant's train from Tyler to Mineola; that appellant, through the conductor, received his fare, and thereby agreed to safely transport and deliver appellee at the passenger depot of appellant in Mineola; that appellant did not do this, but stopped its train a half mile from the depot, and the conductor on the train told appellee to get off, that the train would go no further; that it was night when the cars were stopped, and appellee, in getting off the train as ordered, could not see, fell, and was injured; that “petitioner fell about five feet to the ground and was knocked by the shock of the fall entirely lifeless, and his left arm striking some hard substance, was badly broken and shattered at the elbow joint; that in consequence of said injuries he was confined to his bed under treatment of physicians five or six weeks; that he suffered painfully from his wounds, and that his arm is now stiff from the effects of said injury, and that he cannot now get his left hand to his mouth in consequence of the stiffness of the elbow joint; that in consequence of said injuries he is a cripple for life.” Damages laid at $20,000.

On the 18th of May, 1885, after the first trial of the case, and after the judgment therein rendered had been reversed by the supreme court and the case remanded for another trial, appellee filed his first amended original petition, in which no material change was made in alleging his cause of action. His allegations as to damages were materially changed, and were as follows: “That it being a very dark night at the time the train arrived, plaintiff (appellee) could not see, and stepped off the car steps as ordered by the conductor, and fell about five feet to the ground, and was knocked by the shock of the fall entirely lifeless, and his left arm striking some hard substance, was badly broken and shattered at the elbow joint, and his back badly injured, and two of his ribs were broken, and his kidneys and bladder and his backbone and his hips have been so injured that at the present time and since the injury he has for days been unable to go about; that in consequence of the injuries he was confined to his bed under treatment of physicians for five or six weeks, and that he suffered painfully from said wounds, both mentally and physically, and that he continued to suffer both mentally and physically, and to suffer in every other way that a human being can suffer from the effects of the wounds; that his arm is now stiff from the effects of the injury to such an extent that he cannot get his hand to his mouth, and his back and hips are so injured that he can scarcely walk, and oftentimes, from the effects of the injuries, is confined to his bed for weeks at a time, so that, at this time, the 12th day of April, 1885, he is a cripple for life. Plaintiff further states that he was, at the time of the injury, about thirty-five years of age, and in fine health, and by occupation a merchant and partner in the mercantile establishment to which he belonged, and that his duty in the house was to travel and transact outside business in the wholesale department of the house, which is located in the city and county of Dallas; that the duties of the position require perfect health and physical strength and endurance; that in consequence of those injuries, his usefulness, both mentally and physically, was impaired to such an extent that during the months of February or March in the year 1885, the partnership existing between your petitioner and the other members of the firm was dissolved as to him; that besides the pain and suffering, mentally and physically, to which he was subjected in consequence of the injuries, he has been put to great expense in employing medical aid, to wit, in the sum of $1,000; and that his loss of time is worth the sum of $5,000.” Total damage laid at $20,000.

May 26, 1885, appellant filed his second amended original answer, consisting of a general demurrer, five special exceptions, the general issue and special answers of fact. The special exceptions chiefly pointed out that the allegations of the appellee's amended original petition were not sufficiently specific to apprise appellant of what would be proven or attempted to be proven against it, or sufficiently definite as to time to enable appellant to set up the statute of limitations against them. The general and special exceptions together set up limitation as to the new and distinct grounds of damage which are alleged and complained of in the first amended original petition, and not in the original petition of appellee. Appellant pleaded the contributory negligence of appellee, without which he (appellee) would not have been injured; that appellee was intoxicated, and by his own recklessness and carelessness brought his injury on himself; that the train on which appellee was traveling was not a regular passenger train, but was a mixed train, consisting of freight cars, with a caboose attached, in which passengers were permitted to ride for their accommodation; that appellee got off the cars, of his own volition, sooner than was necessary, knowing the train had not reached the depot at Mineola, but that the locomotive pulling the train had been detached temporarily, in order that different cars might be moved to their proper places, and that had appellee remained on the cars a few minutes longer he would have been taken to the depot; that this was customary with the train on which appellee was traveling on its arrival at Mineola, and that this custom was known to appellee; that the train was run, not as a passenger train, but as a freight train, over a short and unprofitable piece of road, which was known to appellee; that appellee was intoxicated when he got off the train, and but for being in that condition would not have gotten off; that he was not ordered to get off, but did so voluntarily; that appellee's arm was restored, or was in such a condition when he left Mineola, after it had been reset and dressed, that it would have gotten well very shortly, but that it was improperly treated after appellee reached Dallas, and in consequence of that treatment the subsequent injuries and sufferings complained of by appellee resulted, and that they were not caused by appellant. The last paragraph of the answer set up limitation to all the grounds of damage set forth in appellee's first amended original petition, except the simple dislocation of his left arm at the elbow joint.

Appellee's counsel, in his closing argument to the jury, used the following language: “Your plagued railroad is able to bring witnesses here who will swear anything it wants them to swear, as I will prove to you from the testimony of the conductor and negro brakeman before I get through. It is shameful to think that railroads have their lobbyists in the legislature, and that the legislature will not do its duty. We appeal to the juries of the country to keep them in their places.” This language was objected and excepted to by defendant's (appellant's) counsel, and the court replied that it was improper, and directed the jury to disregard said language. Plaintiff's counsel then said: “Gentlemen, I take that back.”

The following language was also used by appellee's counsel, in his concluding argument to the jury: “Everybody knows that railroad companies carry their cases through all the courts of the country, and never pay any claim against them until the last measure of litigation is exhausted.” Defendant's counsel made no objection to this language when uttered, but afterwards presented his bill of exceptions thereto, which was allowed, the court saying: “The above allowed, with this qualification: the court considered the language as in reply of defendant's counsel's argument, and did not stop counsel.”

The case was tried in May, 1885. Verdict and judgment for appellee for $5,000.

F. B. Sexton, for appellant, on setting up new cause of action, cited: R. S., art. 3202, subd....