I. & G. N. R'Y Co. v. Copeland

• Decision Date: 13 November 1883
• Docket Number: Case No. 1496.
• Citation: 60 Tex. 325
• Court: Texas Supreme Court
• Parties: I. & G. N. R'Y CO. v. ELIZA A. COPELAND ET AL.

60 Tex. 325

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

v.ELIZA A. COPELAND ET AL.

Case No. 1496.

Supreme Court of Texas.

Nov. 13, 1883.

APPEAL from Wood. Tried below before the Hon. John C. Robertson.

Suit by appellee alleging that on the 6th day of April, 1881, the plaintiff, E. A. Copeland, being a woman fifty-four years of age, and of strong bodily health and vigor, applied, as a passenger for hire, for transportation over defendant's railroad at a water tank and section house about two miles north from Lindale, in Smith county, Texas, the water tank and section house being a place where defendant usually received passengers on its trains. That on that day the conductor, being the agent of defendant in charge of the train, received the plaintiff upon the cars of defendant at that point as a passenger for transportation to Tyler, in Smith county, Texas; that after she had so entered the cars, and before she had had time to secure a seat, she, using all care and prudence on her part to secure a seat, the defendant, by its agent in charge of the train of cars, negligently, wrongfully and carelessly caused the same to be put in motion with a violent jerk, by which she was thrown violently upon the arm of a car seat and thence to the floor of the car, fracturing two or three of her ribs near the spinal column, and otherwise bruising and injuring her body, causing great bodily pain, anguish, mental suffering and permanent injuries, producing partial paralysis on her right side, permanently impairing the use of her limbs, injuring her right eye so as to impair her sight for life; all of which rendering her a cripple for life and depriving her of her usefulness to herself and family. That the train on which plaintiff was injured was a mixed train, composed of eight freight cars heavily loaded, a caboose and passenger coach; that the train was on an up grade at the time of the injury, and that the load was out of proportion and too heavy for the engine which was hauling the train. That starting such a train under such circumstances is always attended with great danger, all of which facts were known to agents of defendant in charge of the train, but no notice of same was given to plaintiff before the train started, and no sufficient time given plaintiff to secure a seat before starting the train, which acts and omissions upon the part of defendant's agents constituted negligence upon the part of defendant, and were the proximate cause of plaintiff's said injuries. That before she was so injured she was able to and did do a great deal of work, attending to her household duties, working upon and supervising her husband's farm, and attending to the gin upon said farm; that since said injuries she has been confined to bed a great part of the time, has never been able to walk without crutches, has suffered intense pain, bodily and mental, has been at great expense for medicine and medical attention, and has never since been able to perform any of said work and labor. Because of the injuries so inflicted as aforesaid, she sued for $30,000 damages. By its answer, defendant pleaded the general issue, and set up by special answer that if plaintiff E. A. Copeland was injured, it was by reason of her own negligence in not using any diligence in taking a seat. That she was assisted by the conductor of the train into the passenger coach, where half of the seats were vacant; that she passed several vacant ones without taking one; that the train stopped on that occasion for five or ten minutes, and the usual time, and a reasonable time for all passengers and freight to be taken on at said place; that defendant's train was on that occasion loaded and running at that place (the water tank and section house) in a southerly direction, and up grade; that the train was a mixed train, composed of eight or ten loaded freight cars and a passenger coach; that the jerk in starting the train on that occasion was not unusual in starting a like train at that place. Defendant filed exceptions to plaintiff's petition, on the ground, substantially, that the same was an amendment to a substituted petition, the order substituting which had been made at a time when the judge making the same was disqualified, which were by the court on same day overruled. On the 24th day of May, 1883, the cause was tried before a jury, resulting in a verdict and judgment for plaintiff for $8,000.

The charge of court and material facts are manifest from the opinion.

Hart & Buchanan, for appellant, filed an able and exhaustive brief on the questions involved.

Giles & Kate and Robertson & Finley, for appellees, cited on negligence: Pollard v. R. R. Co., 22 Wall., p. 341; Indianapolis & St. Louis R. R. Co. v. Harst, 3 Otto (Sup. Ct. U. S.), p. 291, and authorities there cited; Noble v. Cunningham, 74 Ill., 51; 14 Abbott's Pr. (N. S.), 213; Hutchinson on Carriers, p. 519, sec. 660, and authorities there cited; Wharton's Law of Negligence, sec. 640, and authorities there cited; Shearman & Redfield on Negligence, sec. 276; Nicholus v. Sixth Avenue R. R. Co., 38 N. Y., 131; Thompson on Carriers of Passengers, notes, p. 240, citing Dudley v. Smith, 1 Camp., 167.

WEST, ASSOCIATE JUSTICE.

The assignments of error are numerous. They have all been carefully examined. In making, however, a disposition of this case, only such of them will be noticed as it may become necessary to allude to incidentally in order that the views we have taken of the case may be understood.

The charge of the court, though evidently...