International & G. N. R. Co. v. Duncan

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: International & G. N. R. Co. v. Duncan, 121 S.W. 362, 55 Tex.Civ. App. 440 (Tex. App. 1909)
• Decision Date: 28 April 1909
• Parties: INTERNATIONAL & G. N. R. CO. et al. v. DUNCAN.

121 S.W. 362

INTERNATIONAL & G. N. R. CO. et al. v. DUNCAN.

Court of Civil Appeals of Texas.

April 28, 1909.

On Motion to Reform Judgment, May 19, 1909.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by T. J. Duncan against the St. Louis Southwestern Railway Company and others. From a judgment for plaintiff, the defendant named appeals. Reversed.

Henderson & Lockett, E. B. Perkins, and D. Upthegrove, for appellant. R. B. Pool and Monta J. Moore, for appellee.

RICE, J.

Appellee, T. J. Duncan, sued appellant the St. Louis Southwestern Railway Company, the Texas & Pacific Railway Company, and the International & Great Northern Railroad Company, to recover damages for personal injuries alleged to have been received by his wife, Mrs. L. A. Duncan, while a passenger on defendants' lines of railway between Memphis, Tenn., and Taylor, Tex.

The evidence offered for plaintiff shows that on the 2d of January, 1904, he with his family, consisting of his wife and five small children, left their home at Chanute, Tenn., for Taylor, Tex., traveling overland some 35 miles from their home to Glenmary, where they went by train to Chattanooga, and from thence to Memphis, arriving there about 11 o'clock on the night of January 5th. While at Chattanooga plaintiff purchased coupon tickets over defendants' lines of railway for himself and family to Taylor, Tex. Remaining the night of the 5th at the depot in Memphis, where his wife and children slept on a quilt on the floor, they took passage on the morning of the 6th about 8 o'clock on the cars of the St. Louis Southwestern Railway for Texarkana arriving there about 11:30 that night. Plaintiff's wife was enciente, about four months advanced in pregnancy, and shortly before reaching Texarkana miscarried, on account of which he and his family were compelled to remain at Texarkana until she was able to resume her journey. Upon reaching Texarkana, by direction of the conductor and a special agent of appellant, plaintiff's wife was taken to a private sanitarium where, after treatment for nine days, she was discharged on the 14th of January, and they resumed their journey that morning, arriving at Taylor that night.

Plaintiff alleged, among other things, that the car in which they rode from Memphis to Texarkana was crowded, was allowed to become filthy and in an unsanitary condition; that en route the drinking water gave out before reaching Texarkana; that his wife became very thirsty, and suffered intensely for the want of water, and that during said day she was greatly disturbed and annoyed by the rude and boisterous conduct and profane language indulged in by the other passengers in her presence and hearing; that the lights in the coach in which she was riding, after burning for a short while, suddenly went out, whereby they were compelled to travel the balance of the journey to Texarkana in the dark; that after said lights went out some one in the coach halloed out, "Hands on your pocketbook," on account of which she became very much frightened and nervous and miscarried, which was occasioned by all of the wrongful and negligent acts of appellant above recited. It was further alleged that while at the sanitarium she was improperly treated by the physicians of appellant, who were negligent in the removal of the afterbirth, and who discharged her in a feeble condition, and before she was able to resume her journey, and that at the time of said discharge the weather was cold, inclement, and damp, and that appellant's depot, where plaintiff was compelled to go to procure tickets for the balance of their journey, and where plaintiff's wife awaited the arrival of her train, was improperly heated and ventilated, causing her to contract a severe cold, which developed into a pulmonary trouble, from which she suffered great physical pain and injury, and that the cars in which they rode en route from Texarkana to Taylor were likewise improperly heated and ventilated, occasioning further injury; that on account of said injuries so received at the hands of appellant, she was made sick, and was confined to her bed some 4 or 5 months after her arrival at Taylor, and to her house some 12 months, suffering from milk leg, as well as other complications. The answers of appellants, among other things, consisted of a general denial and pleas of contributory negligence. Plaintiff dismissed as to the Texas & Pacific Railway Company, and, failing to introduce any evidence against the International & Great Northern Railroad Company, the court instructed a verdict in behalf of the latter, and the trial proceeded before a jury as against appellant, and verdict was returned in favor of plaintiff in the sum of $5,000, upon which judgment was accordingly rendered, and from which this appeal is prosecuted.

As the first seven assignments are addressed to supposed errors growing out of the ruling of the court in the admission and exclusion of evidence, and the refusal of special charges in reference to the injuries complained of, predicated upon the alleged improper treatment and premature discharge of plaintiff's wife by physicians while at the sanitarium at Texarkana, it will not be necessary to consider the same, for the reason that the court expressly charged that the plaintiff could recover nothing on account thereof.

We overrule the eighth assignment, because we think the evidence was properly admitted relative to a child being sick in an adjoining compartment of the same car, as the same might properly be considered as a circumstance in connection with the other evidence offered upon this subject.

By the ninth assignment appellant complains that the court erred in refusing to permit it to prove by R. D. Hart, Esq., an attorney of Texarkana, of the firm of Hart & Mahaffey, that the plaintiff, after the alleged injury to his wife, consulted him with the view of employing his firm to bring suit against appellant on account of the miscarriage of his wife, and submitted to him a written statement of the facts upon which he based his claim, and that the same was variant from plaintiff's testimony on the trial, and to show that said attorney did not bring suit for plaintiff against appellant on said claim. We do not think there was any error in the exclusion of this evidence. It was objected to on the ground that it was irrelevant and immaterial, and, further, that the same was a privileged communication between attorney and client. In our judgment all of these objections were sound, for which reason we overrule this assignment. McIntosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611; Ry. Co. v. Lock, 30 Tex. Civ. App. 426, 70 S. W. 456; Greenleaf on Ev. § 238.

We overrule the tenth assignment, complaining of the admonition of the court in the presence of the jury, to the effect that there should be no smoking in the courtroom during the trial, because it was the duty of the court to preserve order and decorum, and to prevent smoking during its sessions. Especially was this true where a juryman had been made sick thereby, and had complained to the court, notwithstanding his attention had been called thereto by plaintiff testifying that his wife was nauseated from the smell of tobacco fumes while a passenger on appellant's railway. It was in no sense a charge or comment upon the weight of the evidence, as contended for by appellant, nor can we think it could be regarded as prejudicing its rights.

By its eleventh assignment appellant urges that the court erred in the following paragraph of its charge to the jury, to wit: "Now if you believe from the evidence that while the plaintiff's wife was a passenger on the St. Louis Southwestern Railway Company's train between Memphis and Texarkana the condition of the car in which she was riding was in such an unsanitary and unclean condition that it contained noxious fumes and odors, or if you believe from the evidence that the said car was not supplied with sufficient drinking water, or if you believe from the evidence that the lights in said car went out or became extinguished, or if you believe from the evidence that any of the passengers on said car were drinking liquor, and that they used improper or indecent language, or were guilty of improper conduct in the presence and hearing of the plaintiff's wife, and if you further believe from the evidence that any of the aforesaid conditions which may be shown to have existed were the proximate result of the failure of the St. Louis Southwestern Railway Company, its agents or employés, to exercise that high degree of care that very careful and prudent persons would have exercised under similar circumstances, and if you further believe from the evidence that any of the aforesaid conditions which may be shown to have existed were, either separately or in conjunction with each other, the direct and proximate cause of the miscarriage of the plaintiff's wife, and that by reason of such miscarriage plaintiff's wife suffered or sustained any of the injuries complained of in plaintiff's petition, then you will find for the plaintiff, unless you find for the defendant under further instructions herein"—because the same authorized the jury to hold this defendant liable for improper or indecent language, or improper conduct of passengers, on defendant's train in the presence and hearing of plaintiff's wife, without requiring that the jury should believe the defendant's servants, or some of them, were present at the time, or knew, or could have known, of such improper language or conduct, or could have anticipated and prevented the same, and, further, because said paragraph of said charge authorized and directed the jury to find for the plaintiff against the defendant, upon a finding that one set of facts or circumstances constituted negligence on the part of defendant, and another set of facts directly and proximately caused the injury to plaintiff's wife. By its proposition thereunder, appellant...