Int. & G. N. R. R. Co. v. Stewart

• Court: Texas Supreme Court
• Writing for the Court: STAYTON
• Citation: Int. & G. N. R. R. Co. v. Stewart, 57 Tex. 166 (Tex. 1882)
• Decision Date: 28 April 1882
• Docket Number: Case No. 4493.
• Parties: INT. & G. N. R. R. Co. v. JOE H. STEWART.

57 Tex. 166

INT. & G. N. R. R. Co.

v.JOE H. STEWART.

Case No. 4493.

Supreme Court of Texas.

Apr. 28, 1882.

APPEAL from Travis. Tried below before the Hon. A. S. Walker.

This suit was brought by Joe H. Stewart, plaintiff, against the International & Great Northern Railroad Company, defendant, to recover $21,500, actual and exemplary damages for personal injuries alleged to have been received by plaintiff in walking and tumbling off defendant's depot platform in the city of Austin, about half-past twelve o'clock, at night, on the 3d day of July, 1877; the petition charging negligence on the part of the defendant in failing to provide proper lights at the depot, to guide passengers off the platform, and further alleging that this negligence was the proximate cause of the injuries sustained by him.

The petition was held good on a former appeal of this case. 52 Tex., 289.

The defendant pleaded a general denial, and specially denied negligence and injury; and pleaded that plaintiff was guilty of contributory negligence.

On the trial there was no conflict of testimony as to the accident; as to the extent of injury, testimony was conflicting. The court charged only on actual damages. The charge was as follows, after stating the case:

1. “It was the duty of the defendant company to provide reasonable accommodations at their stations for passengers who travel on their trains. It was its duty to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do, or would naturally resort, as well as all portions of their station grounds reasonably near to their platforms, where passengers landing from the cars would naturally or ordinarily be likely to go.

2. It was the duty of the plaintiff to use such watchfulness in his movements as a reasonably prudent man would ordinarily use under the circumstances attending his landing from and moving from the cars at the time.

3. Negligence is the omission to perform a duty, and should be measured by the character, risk, and exposure to danger in the matter or business under consideration; and both plaintiff and defendant were bound to such care as would be used by prudent men generally in the matter under investigation, looking to their duties as above defined….

6. Whether the defendant company was guilty of negligence; that is, whether the acts and omissions of the defendant, as shown by the testimony, exhibited a neglect of duty as above defined, must be determined by the jury from all the testimony before them.

7. If the jury believe, from the testimony, that the allegations in the petition as to the injury are true, and that the defendant company was negligent, and failed in its reasonable discharge of its duty under the circumstances, whereby the injury was caused, and that the plaintiff used ordinary care, and was not himself, by his negligence, to some extent directly contributing to the injury, then the jury will find for the plaintiff such damages, if any, as the testimony shows to have been the natural and proximate effect of such injury, including, if warranted by the testimony, loss of time, medical bill, suffering, mental and physical, incapacity for labor in his business or profession, if any, resulting from the injury; looking to the testimony as to what, if any, damages, and their amount, sustained, not exceeding the sum claimed.

8. If the testimony fails to show injury to the plaintiff, or fails to show negligence as alleged on the part of the defendant, or if it show negligence or want of reasonable care under the circumstances on the part of the plaintiff, contributing to the injury, the jury will find for the defendant.”

The jury, after retirement, returned into court with a verdict which the court refused to receive. After further deliberation, the jury returned a verdict for plaintiff for $1,525. Upon this verdict judgment was entered.

The trial judge gave to counsel for defendant a statement as to the contents of the rejected verdict, for use in motion for new trial and otherwise, as follows:

“The following is a copy of the verdict first returned into court by the jury in the case of Stewart v. International & Great Northern Railroad Company, which was refused by the court, and to which reference is made in defendant's motion for new trial, filed this February 4, 1881: ‘Jury Room, Austin, Texas, February 4, 1881.--We, the jury, find for the plaintiff in the sum of twenty-five dollars for actual damages and fifteen hundred dollars for exemplary damages. (Signed) JNO. W. BLUE, Foreman.’

Witness my hand, this February 4, 1881.

+------------------------------------+
                ¦(Signed)¦A. S. WALKER, Dist. Judge.”¦
                +------------------------------------+
                

Motion for new trial was urged on grounds, (1) refusal of court to receive the first verdict; (2) error in charge of court; and (3) that damages were excessive.

Motion for new trial was overruled, and defendant appealed.

Peeler & Maxey, for appellant.

I. The first verdict of the jury found $1,500 exemplary damages and $25 actual damages against the defendant. The court charged the jury only on the subject of actual damages. Therefore the verdict was responsive to the issue of actual damages, and judgment should have been entered thereon, rejecting that portion finding exemplary damages. Hutchings v. Bacon, 46 Tex., 412;Patterson v. United States, 2 Wheat., 225; Stearns v. Bassett, 1 Mason (C. C.), 170; Richmond v. Tallmadge, 16 Johns., 313.

II. The seventh paragraph of the charge of the court is a charge upon the weight of evidence, and assumed as a fact the vital issue before the jury, to wit, that the plaintiff was injured. R. S., art. 1317; H. & T. C. R. R. Co. v. Smith, 52 Tex., 185;Gay v. McGuffin, 9 Tex., 502;Andrews v. Marshall, 26 Tex., 215;Kimbro v. Hamilton, 28 Tex., 566;Williams v. Davidson, 43 Tex., 39, 40;T. & P. R. W. Co. v. Murphy, 46 Tex., 367.

III. The sixth paragraph of the instructions was a charge upon the weight of evidence, and assumed that omissions on the part of defendant had been proven by the testimony--a fact for the determination of the jury alone, and one of the material issues in the case. Same authorities.

IV. The damages were extravagant and outrageous, showing prejudice in the jury. Darcy v. Turner, 46 Tex., 35;Patten v. C. & N. W. R. R. Co., 32 Wis., 524.

Carleton & Morris and Sheeks & Sneed, for appellee.--On the question of amount of damages, they cited Thompson's Carriers of Passengers, 556, 557 and 93...