Levy v. Campbell
| Decision Date | 19 April 1892 |
| Citation | 19 S.W. 438 |
| Parties | LEVY v. CAMPBELL. |
| Court | Texas Supreme Court |
F. M. Etheridge and Simkins & Neblett, for plaintiff in error. Cate & Teagarden, for defendant in error.
Suit by plaintiff in error, Isadora P. Levy, in the district court of Leon county, against T. R. Bonner and T. M. Campbell, receivers of the International & Great Northern Railroad, for damages alleged to have been received by plaintiff while a passenger on defendants' cars in a wreck which occurred near the town of Overton. The petition alleges that the causes of the wreck were: (1) The train was run too fast, and at a high rate of speed; (2) the ties at the place of the wreck had become worn out and rotten; (3) the rails were broken and worn out; (4) there was no bell cord or other means by which the conductor could communicate with the engineer; (5) there was no brakeman on the train, or other means of controlling its speed. Defendants answered by general denial. Verdict and judgment for the defendants.
The original petition for writ of error was against both Bonner and Campbell, and was filed in the district court, with bond, August 22, 1891, and service had. Bonner died, and there was an amended petition, September 9, 1891, setting up the death of Bonner after the filing of the original petition, and that an order had been made in the receivership proceedings appointing Campbell receiver. Transcript of the amended petition, the citation and service, with the original bond, was made out and certified by the clerk, including the proceedings in the lower court and assignment of errors, December 30, 1891, omitting only the original petition and citation. The clerk made out and certified another transcript, including the omitted papers, January 11, 1892. The transcripts were both filed in the supreme court, January 18, 1892, as two cases. Plaintiff filed a motion in the supreme court to consolidate the two cases, the transcripts pertaining to only one case. The motion is indorsed by the supreme court, to be submitted with the case. It requires both transcripts to complete the record, and both were intended, doubtless, to be filed together as the record in one case. There is no opposition to the motion. It should be granted, and it is so ordered.
First assignment of error, which is submitted as a proposition, as follows: The court erred in permitting the witness Stephens to testify that he was the conductor, sitting near plaintiff at the time the train ran off and the car turned over, and was not hurt, (1) because such testimony was irrelevant and immaterial, and in no way tended to show the plaintiff was not injured; (2) because such testimony was calculated to prejudice and mislead the jury.
In order to appreciate this assignment, and some other points occurring hereafter, it will be necessary to give a somewhat full statement of the testimony. The undisputed facts show that the train was a regular passenger train, consisting of a locomotive, tender, one ordinary box car, used as baggage car, and a passenger coach, on which plaintiff was a passenger. The train had rolled down a short hill, and was rising the next on a long curve, the steam having been turned on to make the ascent. The curve turned to the right, and the rails on the upper or left side of the track were worn bright by the flanges of the car wheels. While running along on this curve, the passenger coach jumped the track on the left side, knocked off some of the ends of the ties outside the track, broke its connections with the box car, fell down the embankment, and rolled over on its side, the plaintiff and other passengers falling with it to that side of the car. Plaintiff was sitting in the rear end of the car, and the conductor near him, on the same side. The rest of the train kept the track, and stopped not far away. The passenger coach took fire and was consumed. There were some decayed ties at the place of the accident. There was no bell cord from the coach to the engine, no brakeman on it or air brakes, or other means of stopping the train save the engine. The engineer knew nothing of the coach leaving the track until he felt a shock or jerk, and looked and saw the car off the track. These facts are not disputed. It was shown by the testimony of defendant that there were some few rotten ties about the place of the accident, but that the track was in good fix, and that the ties were sufficiently strong to hold up the rails; that the coach wheels mounted the rails, and went off, leaving the track in position after the accident, except the broken ends, "two or three or three or four of them," and 17 or 18 inches of them. Defendant also showed that, where a curve is properly built, there should be no more friction on the rail by the flanges of the wheels than on a straight line, — that is, when the elevation is such as to keep the center of gravity in the right place; but, if the center is not properly put up, there would be crowding of the outside rails, and that at this place "the rails were worn as bright as a silver dollar." Defendant's testimony also showed that, at the time of the accident, the train was moving at about 16 miles an hour; that 18 miles was schedule time, and that the speed was not dangerous. Plaintiff testified that he had traveled a great deal, and knew when the speed of a train was dangerous, and that this train, when the coach sprang from the track, was moving at a high and dangerous speed. He also testified that he was thrown violently on the floor, and across the car; was shocked and unconscious for a while; his left side was temporarily paralyzed; that he was hurt in the back, and had a fractured rib, and still suffers from his side; was confined to his bed for two months; was greatly impaired in strength and capacity to work and attend to his business as a drummer; and that he expended $350 for medicine, medical treatment, and nurses. After his injury, he remained at Overton, in charge of the defendant's local surgeon, say three days, when he was taken to Corsicana, Tex., and there he was examined and treated by physicians, one of them visiting him a number of times. These physicians, three in number, corroborated the testimony of the plaintiff that the sixth rib on the left side was fractured or broken; that he complained of his back and side, but that, without such complaint, the diagnosis was certain, Dr. Sloan testifying that, if plaintiff had said nothing about being injured, he could have discovered it. ...
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...etc., and falls short of the former. He was drawing a distinction between the charge before him and those in the Levy and Gallagher Cases (19 S. W. 438 and 66 Tex. 265, 17 S. W. 407), hereafter noted, and there wrote for courts and lawyers, and not jurors. We think the criticism made by him......
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