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

• Decision Date: 10 June 1903
• Citation: 75 S.W. 557
• Parties: INTERNATIONAL & G. N. R. CO. v. ANCHONDA et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

75 S.W. 557

INTERNATIONAL & G. N. R. CO. v. ANCHONDA et al.^*

Court of Civil Appeals of Texas.

June 10, 1903.

Appeal from District Court, Frio County; E. R. Lane, Judge.

Action by Elvida Anchonda and others against the International & Great Northern Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Hicks & Hicks, for appellant. Mason Manney and R. W. Hudson, for appellees.

JAMES, C. J.

The case was here once before. See opinion in 68 S. W. 743.

This is a suit by appellee, Elvida Anchonda, in her own right and as mother and next friend of her minor children, Simon, Soleda, and Rosaleo Anchonda, to recover damages for the physical and mental suffering alleged to have been caused appellee through the alleged negligence of the appellant on or about the 25th day of November, 1900. Appellee alleges that on said date she, with her children, was at Moore, a station on appellant's line of railway, and held tickets for passage on appellant's train from Moore to Cotulla, defendant having knowledge of the relationship between her and the children. That, when appellant's train arrived, appellee placed her children and her niece, who was also with her, on board said train, and attempted to board the train, but, by reason of the fact that appellant negligently failed to stop said train a reasonable length of time for passengers to get off and on, she was unable to board the train. That in trying to do so she was thrown down and sustained physical injuries. That appellant's train moved off with her children and her said niece, and took them to Cotulla. That appellee suffered great physical and mental pain by reason of her physical injuries, and suffered great mental pain by reason of her separation from, and her anxiety for the safety of, her children. Appellee claims that appellant was negligent in failing to stop its train a reasonable length of time at Moore station, and failing to observe, look, ascertain, or discover appellee and her children trying to board the said train. Appellant answered by general and special exceptions, general denial, and specially pleaded that it had no knowledge of the relationship, if any between appellee and the children with her, and that appellee was guilty of contributory negligence in attempting to board the train while in motion, and in failing to board said train while it was standing still, and in failing to use reasonable diligence to ascertain the safety of her children after the train left Moore station.

The suit was originally brought by Filipe Anchonda, the husband of appellee, who, however, died during the pendency of the suit. The case was tried on the 8th day of December, 1902, and resulted in a verdict and judgment in favor of appellee for $1,500 in the aggregate, or $750 for Elvida Anchonda, and $750 to her said minor children, jointly.

The statement of the witness Ignacio Garza that the agent saw the children before he gave them the tickets, was the statement of a fact, not the conclusion of the witness. The same testimony, in effect, was given by others, without objection. We therefore overrule the first assignment.

The second assignment may be overruled for the reason that the witness Ignacio Garza does not appear to have given any testimony in effect the same as that stated in the bill of exceptions. The bill sets forth that in answer to the question, "How long did that child sickness last?" this witness was allowed to testify "that the injuries claimed to have been inflicted upon plaintiff were the ones from which she has suffered, and not the injuries following or produced by childbirth." The statement of facts sets forth the question and the answer to it specifically, and the answer was not either in substance or effect what is stated in the bill. The only testimony of this witness that approaches what is recited in the bill appears to have been given prior to the putting of the question, and we quote this testimony to show that she did not testify as charged. "Previous to the time she fell from the train at Moore, she had been sick a little while from the birth of a child. She had been complaining, and this sickness down here was on account of the birth of her baby, but she didn't have this sickness up here. She had been sick at Mr. Finch's ranch from the birth of her baby. She was complaining down here, but not up here with her side. This was all the sickness she had prior to the fall." In this testimony she stated facts only, and facts that existed prior to the fall. We can see nothing in this which can be said to be an attempt at expert testimony as to whether or not plaintiff's suffering was the result of injuries received in the accident complained of, instead of the childbirth. We think it unnecessary to consider the question of the witness' competency to give testimony such as she is charged with giving, in connection with statements of the judge qualifying the bill.

We also overrule the fourth assignment. Defendant's witness, A. C. Kennedy, was asked the question: "Did Nathan Williams come to Pearsall with the balance of the witnesses a few days ago?" To which question defendant objected, because immaterial and irrelevant, whereupon plaintiff's counsel stated to the court: "We stated to the court the other day that we would like to have him put under the rule if we could have him here, and we desire to show where he is and what became of him. The object is to show the jury why we don't put him on the stand." The witness appears to have made answer: "He was here the other day, and he has not gone by our consent." The bill was taken to the above remarks of plaintiff's counsel, because they were calculated to and did prejudice the jury against defendant. Defendant, of course, did not except to the answer of the witness. The judge states in the bill that he thereupon instructed the jury not to consider anything as to Nathan's absence or presence at all. It seems to us that there is nothing substantial presented by the assignment of error.

The sixth, seventh, ninth, tenth, eleventh, twelfth, and thirteenth assignments are attacks on the court's charges.

There is, we believe, nothing advanced under the sixth and seventh assignments which would tend toward a reversal of the judgment.

The ninth assignment presents this proposition: Appellant would not be liable for any mental suffering of appellee by reason of the separation from her children, unless at the time appellee attempted to board said train the appellant knew of the relationship, or at least that some relationship existed, between appellee and the said children. If paragraph 6 of the charge, the one to which this assignment is addressed, were not qualified in some proper manner, the assignment would be well taken. The criticism, briefly stated, is that it instructed the jury to find for plaintiff, regardless of the question of appellant's knowledge of the relationship between appellee and the children. We can readily...