Marler v. Texas and Pacific Railway Company

• Decision Date: 01 February 1900
• Docket Number: 13,328
• Citation: 52 La.Ann. 727,27 So. 176
• Court: Louisiana Supreme Court
• Parties: MRS. HARRIET C. MARLER, WIDOW, AND MRS. HARRIETT C. MARLER, TUTRIX, v. THE TEXAS AND PACIFIC RAILWAY COMPANY

27 So. 176

52 La.Ann. 727

MRS. HARRIET C. MARLER, WIDOW, AND MRS. HARRIETT C. MARLER, TUTRIX, v. THE TEXAS AND PACIFIC RAILWAY COMPANY

No. 13,328

Supreme Court of Louisiana

February 1, 1900

Rehearing refused.

APPEAL from the Tenth Judicial District, Parish of Rapides. Hunter, J.

John C Blackman and Horace H. White, for Plaintiff, Appellee.

Howe Spencer & Cocke, and M. C. Mosley, (Robert P. Hunter, of Counsel,) for Defendant, Appellant.

OPINION

NICHOLLS C.J.

The plaintiff, as widow of M. M. Marler and natural tutrix of the minor children, issue of their marriage, asks judgment against the defendant for damages for personal injuries received by the husband and father.

The prayer is based upon allegations that, on or about the 19th day of August, 1898, the said M. M. Marler, husband to the widow, and father to the children, boarded the evening (or cannon ball) train of the defendant company at New Orleans, La., as a passenger for Alexandria, Rapides Parish, Louisiana; that said train reached Alexandria about 3:45 A.M. on August, 20th, 1898; that M. M. Marler was taken beyond his destination without his knowledge or fault; that he attracted the attention of the conductor of said train to this fact immediately, or very soon after its departure from Alexandria; that through the gross and criminal negligence of said company the train of said company was stopped at a point that rested the coach, in which Marler properly and legally was a passenger, about one hundred feet from the upper point of the first trestle beyond the first water tank above Alexandria; that the conductor of said train, at this point in Rapides Parish, ordered the said M. M. Marler to alight, which he did; that immediately upon stepping from the steps of the coach, he fell to the ground a distance of about fifteen or twenty feet, thereby sustaining injuries from which he died on or about August 23rd, 1898; that the said Marler was guilty of no contributory negligence whatsoever in the accident which befell him, but that his death was occasioned through the gross, careless, culpable and criminal negligence of the defendant company; that Marler was about 43 years of age, in good health, industrious, and the sole support of his wife and children, and that by his death they have been deprived of his support, companionship and protection, and have been damaged in the sum alleged.

In view of the premises, plaintiff prayed for citation on defendant; that there be judgment in favor of Mrs. Harriet C. Marler, widow, for the sum of ten thousand dollars, and Mrs. Harriet C. Marler, tutrix, for five thousand dollars for each of said minor children, with legal interest from judicial demand until paid, against the defendant, the Texas and Pacific Railway Company.

Defendant excepted that the District Court was without jurisdiction. That the domicile of this defendant was in the Parish of Orleans, Louisiana, where alone it could be sued upon such a cause of action as that set forth in plaintiff's petition.

The exception was overruled.

Under benefit of its exception, defendant answered.

After pleading the general issue, it expressly denied that the relation of passenger and carrier existed between the said M. M. Marler and itself at the time said injuries to said Marler occurred, but, on the contrary, it averred that if said relation ever existed, same had terminated before the happening of said injuries.

Defendant expressly denied that the said Marler's injuries resulted from any act, neglect or default on its part, or of any one for whose acts it was liable or legally responsible, but, on the contrary, it averred that if Marler suffered any injury, same resulted from, or was contributed to, by his own act, neglect or default, and it expressly denied any liability or responsibility in the premises.

The case was tried before a jury, which returned the following verdict:

"We, the jury, find verdict for plaintiff against defendant for twenty thousand dollars for widow and children, as follows: Three thousand dollars for each child, and two thousand dollars to widow."

The court rendered judgment in conformity to the verdict after overruling a motion for a new trial filed by the defendant.

Defendant appealed.

OPINION.

This suit is brought by the widow of M. M. Marler, in her own right and as tutrix of the minor children, issue of her marriage with her said husband, to recover damages from the defendant company, for the death of her husband averred to have been caused by the fault and negligence of its employees.

The evidence establishes that Marler took passage, at New Orleans, on the 19th of August, 1898, on a train of the defendant company, under a ticket purchased by him, from New Orleans to Alexandria; that he seated himself in one of the ordinary coaches of the train and remained therein, sleeping in his seat, almost continually, until after the train had reached Alexandria, had stopped there for twenty or twenty-five minutes, and had started west beyond that point; that before the train had reached Alexandria, and at about half a mile from that place, the conductor and also the porter notified the passengers in the coach in which Marler was seated that the next station was Alexandria; that the conductor woke Marler, told him that he was reaching Alexandria, and though the latter answered "all right," he none the less remained upon the train until after it had started; that a short distance west of Alexandria is a stream or bayou known as Bayou Rapides, which the defendant company's road approaches and crosses upon a bridge and trestle; that the railroad track is crossed a short distance beyond the west end of this trestle by a plantation road, and a little beyond this the track is crossed by that of the H. C. & N. Railroad, which, running out of Alexandria nearly parallel for a time with the Texas Pacific, also crosses Bayou Rapides and then converges towards and meets it as stated; that almost immediately after the train left Alexandria, the conductor started through it to take up tickets, and went into the coach in which Marler was still seated and sleeping; that waking him he asked him if he intended going any further than Alexandria; that he replied that he was going to Alexandria; that the conductor told him that the train had left there and offered to take him to Boyce (the next station west) and send him back, but he answered that he wanted to go to Alexandria, and asked where the next stop would be; that he was told that it would be at the H. C. & N. crossing and was asked whether he knew where that place was; to which he replied that he did; that he would rather get off there and walk back, than to go to Boyce; that the train shortly after stopped and Marler got off; that this was between four and half-past four of the morning of Sunday, the 20th of August; and that a short time after five o'clock of that morning he was found, by a farmer named Samuel Ball, lying under the railroad trestle (dangerously injured) about eight-four feet from its west end, and that from this injury he died some days afterwards.

No one saw him fall, and the only testimony in the record bearing directly upon that subject are statements made by Marler to Ball, to S.W. Williams, who was his brother-in-law; to Dr. Simmons, to Judge Blackman, and to T. W. Squires, brought to our knowledge through the testimony of these parties.

The place at which the train stopped, when Marler alighted from it, is one of the disputed points in the case.

Plaintiff's attempt was to show that the train stopped so as to place the step of the coach, from which Marler alighted, directly over the trestle, while that of the defendant was to establish that it was some distance west of the west end of the trestle, and that Marler must have walked back to the trestle and attempted to cross it to return to Alexandria.

The testimony of Ball, Williams, Simmons, Blackman and Squires, as to the statements of Marler, went to the jury over objections from defendant, and under bills of exception.

The objections urged were that these declarations were made at a place other than where the accident occurred, and several hours after; that they constituted no part of the res gestae; that they were hearsay and incompetent either as part of the res gestae, or as dying declarations, or for any other purpose.

Plaintiffs maintain that the ruling of the court was correct; that the declarations of the deceased formed part of the res gestae; that to constitute them so it was not necessary that they should have been precisely concurrent with the act charged to have been committed; that it was only necessary that they should spring from it and be made under circumstances which preclude the idea of design.

They refer the court to State vs. Thomas, 30 Ann., 600; Augusta Factory vs. Barnes, 72 Ga. 217; Gillett's Indirect and Collateral Evidence, Sec. 258; Brownwell vs. Pacific R. R. Co., 47 Mo. 239; 46 Nebraska, 37; Irby vs. Shute, 25 Texas, 203; Ohio & Miss. R. R. Co. vs. Stein, 19 L.R.A. 733 (Ind.); Mitchum vs. State, 11 Ga. 615; Wharton Ev., Sec. 262; Harriman vs. Stowe, 57 Mo. 93; Travellers Ins. Co. vs. Mosby, 75 U.S., Wall., 397, 19 L. Ed.; Hall vs. State, 48 Ga. 607; Chill vs. H. & T. Com., 40 A. 1127; Handy vs. Johnson, 5 Md., 463; People vs. Vernon, 35 Cal. 49; 95 Am. Dec., 49; O'Connor vs. Chicago, M. & St. Paul R. R. Co., 27 Minn. 173; 38 Am. Rep., 288; International & G. N. R. vs. Anderson, 82 Texas, 516; Texas Pac. R. R. vs. Robertson, 82 Tex. 657; A. & E. Enc., Vol. 21, pages 101-102; State vs. Garrand, 5 Oregon, 216; S. R. Co. vs. Smith, 4 A. & E.E.R.C., 324, and 78 Texas, 421.

The defendant refers the court to State vs. Estoup, 39 Ann., 219; State vs. Melton, 37 Ann., 78; State...