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

• Citation: 100 S.W. 1000
• Parties: INTERNATIONAL & G. N. R. CO. v. HUGEN (two cases).<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 20 February 1907
• Court: Court of Appeals of Texas

100 S.W. 1000

INTERNATIONAL & G. N. R. CO. v. HUGEN (two cases).^*

Court of Civil Appeals of Texas.

February 20, 1907.

On Rehearing, March 27, 1907.

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

Action by F. H. Hugen against the International Great Northern Railroad Company, and by F. Hugen against the same defendant, which cases were tried together. From judgments in favor of plaintiffs, the defendants appeal. Affirmed. Motion for rehearing overruled.

S. R. Fisher, J. H. Tallichet, S. W. Fisher, N. A. Stedman, and Jno. M. King, for appellants. Henderson & Lockett, Moore &amp Moore, U. S. Hearrell, and F. M. Adams, for appellees.

EIDSON, J.

These are suits brought in the court below by the appellees respectively against the International & Great Northern Railroad Company, appellant in each case, for damages on account of personal injuries received by appellee F. H. Hugen, through the alleged negligence of appellant. At the date of the injuries, F. H. Hugen was a minor, and the suit of F. Hugen, who is his father, was for damages on account of expenses and loss of wage earning capacity of the son during his minority. These cases were by agreement tried together in the court below with separate pleadings, but on the same testimony, separate charges being given, and separate verdicts and judgments rendered. The verdict for F. H. Hugen was for $15,000, that for F. Hugen for $1,500, of which plaintiff remitted $1,030. It was further agreed by counsel that the cases should be submitted in this court upon the same transcript and briefs.

The petitions of appellees showed good causes of action, and hence were not subject to general demurrer. There was no error in the action of the court below in overruling appellant's special exceptions to the allegations in plaintiff's petition, to the effect that it was negligence for the front door of the coach in which plaintiff was riding to be closed, as it was a question of fact to be determined by the jury upon the evidence, and under proper instructions of the court, whether or not it was negligence for the defendant to so close its doors; and, further, we are of the opinion that such allegations were proper as matter of inducement, and as explaining any delay there might appear to be in F. H. Hugen's leaving the car at Gause, and as negativing contributory negligence on his part in any such delay as might be shown. Appellant's contention that the action of the trial court in setting aside its judgment overruling plaintiff's motion for a new trial in suit No. 4,052, and entertaining and granting during the same term of court a subsequent motion for new trial, filed and presented after overruling said former motion, and after exception to such action by plaintiff, and notice of appeal to the Court of Civil Appeals given, was beyond its jurisdiction, and void, in our opinion is not sound. The jurisdiction of the district court to set aside its own judgments continues during the term, and this is so, although all the steps prescribed by the statute for the perfection of an appeal have been taken before the close of the term. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 487; Churchhill v. Martin, 65 Tex. 367. Hence there was no error in the court's sustaining the plaintiff's special exception to paragraph 5 of defendant's second amended original answer.

The admission of the testimony complained of in appellant's fifth assignment of error was proper. Substantial correspondence between the allegations in the petition and the proof is all that is required. There was no substantial variance between the allegation that when F. H. Hugen struck the ground he was shocked and shaken out of his right mind, and presently became senseless and unconscious, and the evidence that after falling, F. H. Hugen spoke a few words to persons who came to his assistance, and then in a few minutes became wholly unconscious. And, further, the ground of negligence alleged being the shoving or pushing plaintiff F. H. Hugen off the platform of defendant's cars by the porter, plaintiff would not be confined in his proof as to the effects of the injuries received by him to the precise language of his petition. Railway Co. v. Johnson, 83 Tex. 631, 632, 19 S. W. 151.

The testimony, admission of which is complained of in appellant's sixth, seventh, and eighth assignments of error, was properly admitted as res gestæ. The statements of F. H. Hugen, according to the record, were made immediately after he received the injuries, and while he lay upon the ground where he had fallen from the train, being unable to arise, and were made to parties who hastened to his assistance upon seeing him fall, and who at the time they saw him fall were not exceeding 80 yards distant from him, and evidently reached him within a very few minutes, at the outside not exceeding five minutes, and the statements were made by said plaintiff immediately upon these parties reaching him. The statements of F. H. Hugen were made in answer to questions which were not calculated to elicit or suggest any particular answer. The questions were only such as were prompted by the parties seeing the said Hugen fall from the cars to the ground and fail to get up, and the answers were such as would be prompted by the transaction; that is, by the manner or means which caused the said Hugen to be placed in the situation he was, and his statements were spontaneous, being verbal acts, or in other words the transaction speaking through the party making the statements. Railway Co. v. Davis, 65 S. W. 217, 27 Tex. Civ. App. 279; Railway Co. v. Weaver (Tex. Civ. App.) 41 S. W. 848; Dwalt v. Railway Co., 55 S. W. 536, 22 Tex. Civ. App. 403; Railway Co. v. Robertson, 82 Tex. 660, 17 S. W. 1041, 27 Am. St. Rep. 929. The fact that the plaintiff testified differently on a former trial in reference to his physical or mental status at the time, or as to making any statement as to the cause or manner of receiving his injuries, did not affect the competency of his testimony on the present trial, though it might be a matter for the consideration of the jury as to the effect to be given such testimony.

There was no error in the admission of the testimony complained of in appellant's ninth assignment of error. It was proper for the plaintiff to prove that when the train reached Gause, his destination, he went to the front door of the car to open it and get out, but it was locked or otherwise fastened, in order to show the exercise of reasonable diligence on his part in attempting to debark from the train; and, further, this testimony was admissible as explaining a part of the transaction which led up to that part which culminated in the plaintiff's being removed or falling from the car.

We overrule appellant's tenth assignment of error, as no probable injury is shown to have resulted to appellant, on account of the court's permitting the witness Elliott to testify in rebuttal after he had been placed under the rule excluding the witnesses from the courtroom, and had violated such rule by remaining in the courtroom during the examination of other witnesses, especially in view of the fact shown by the record that the witness unintentionally violated the rule on account of being hard of hearing, and believing that he had been discharged therefrom, and had heard but little of the evidence, and plaintiff's counsel were unaware of his presence in the courtroom during the examination of other witnesses. The permitting of a witness who has remained in the courtroom and heard some of the testimony, to testify after the rule was invoked is within the sound discretion of the trial court, and will not be revised on appeal, unless an abuse of such discretion is apparent; and in this case it does not appear from the record that the court below abused its discretion in permitting said witness to testify. Garlington v. McIntosh (Tex. Civ. App.) 33 S. W. 389.

Appellant's eleventh assignment of error is too general to require consideration. The second paragraph of the court's charge complained of in appellant's twelfth assignment of error correctly instructs the jury as to the...