Missouri, K. & T. Ry. Co. of Texas v. Churchill
| Decision Date | 20 October 1914 |
| Docket Number | (No. 67021.) |
| Citation | 171 S.W. 517 |
| Parties | MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Galveston County; Edward F. Harris, Special Judge.
Action by S. A. Churchill against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.
Baker, Botts, Parker & Garwood and Jno. T. Garrison, all of Houston, and John L. Darrouzet, of Galveston, for appellant. S. L. Staples, of Smithville, and Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.
Plaintiff, S. A. Churchill, brought this suit against the defendant, Missouri, Kansas & Texas Railway Company of Texas, to recover damages sustained by him on account of the negligence of the defendant. He alleged, in substance, that he accompanied his mother and her two children to the Union Depot in the city of Galveston, where they intended to take passage on defendant's passenger train to their home in Smithville, and that he entered the train with his mother and her two children to assist them with their luggage and in finding seats, first apprising the conductor of this fact and the fact that he did not intend to become a passenger, and that, while he was so engaged, the conductor, without warning or notice to him, started said train in motion, and before he could get to the door of the car to alight from the train the conductor shut the vestibule door through which he had entered, and that, although the conductor was shutting the vestibule door when plaintiff first asked him to let him off, he continued to shut, and did thereafter finish shutting, the door, and that, although he requested the conductor to open the door and let him out, he (the conductor) failed and refused to do so and failed and refused to stop the train and let him off, but stood on the trapdoor of the vestibule, thus barring plaintiff himself from opening the door; that the momentum of the train was growing greater all the time; that in order to disembark, and not be carried away, he went on the platform of the car next to the one he had entered, opened the trapdoor and vestibule door on the opposite side of the train from which he entered, and, getting down on the car steps, he grasped the hand-holds on each side, and leaned back to see if he could get off in safety; and that just as he leaned back to look his head came in contact with an iron support of the shed under which the train had been standing, knocking him from the steps, and inflicting the injuries for which he sued. The grounds of negligence alleged were in permitting the train to start while plaintiff was inside the car without affording him a reasonable time to assist said passengers and alight therefrom, and without giving him notice that the train was going to start, in either of which events he could have alighted with safety; in closing the vestibule door while plaintiff was demanding the conductor to permit him to pass through it; and in using a track located in such close proximity to the iron support of the shed as to make the support dangerous to a person who might leave the train on the side upon which it was situated.
Upon the request of appellant the case was submitted to a jury upon special issues in the form of interrogatories, the issues submitted being as follows:
The sixth interrogatory propounded was as to what sum of money would reasonably and fairly compensate plaintiff for the injuries sustained by him, laying down in that connection definite rules to guide the jury in arriving at the measure of his damages.
The jury answered the first, third, and fourth questions in the affirmative, and the second and fifth in the negative, and in answer to the sixth found that a fair and reasonable compensation to plaintiff for the injuries suffered by him was $7,000. Upon the return of the verdict the court required a remittutur by plaintiff of $2,000, which was filed and entered, and thereupon the court rendered judgment in his favor for $5,000, from which the defendant, after its motion for a new trial had been overruled, has appealed.
Appellant's first assignment of error assails the action of the court in submitting interrogatory No. 4 for the determination of the jury, to wit:
"Was the defendant guilty of negligence toward plaintiff in using the track as close to the pillar or post as it was used?"
The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth assignments are predicated upon the refusal of the court to submit to the jury special issues requested by defendant. No bill of exceptions was taken to the charge of the court or to the court's refusal to give defendant's special charges, and for this reason appellee objects to the consideration of these assignments.
In St. Louis, Southwestern Ry. v. Wadsack, 166 S. W. 42, the Texarkana Court of Civil Appeals had under consideration the question whether assignments of error based upon objections to the court's charge or predicated upon the refusal of the court to give special charges requested by the appellant, to which action bills of exception were not taken in the trial court and allowed and signed by the judge, could be considered by the appellate court. In a comprehensive opinion written by Associate Justice Hodges the following conclusion is reached:
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Conn v. Houston Oil Co. of Texas
...900; Roberts v. Laney, 165 S. W. 116; Life Association v. Rhoderick, 164 S. W. 1068; Street Railway v. Barnes, 168 S. W. 992; Railway v. Churchill, 171 S. W. 517, decided by this court October 15, 1914. But does this rule apply to a peremptory instruction which takes from the jury the right......
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Gulf, C. & S. F. Ry. Co. v. Higginbotham
...objections are preserved by a proper bill of exceptions. This court has followed and approved this holding in the cases of Railway Co. v. Churchill, 171 S. W. 517, O'Neil Engineering Co. v. City of San Augustine, 171 S. W. 520, and Conn v. Houston Oil Co., 171 S. W. 524, all recently decide......
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Bost v. Biggers Bros.
...a bill of exception may be considered as such, the fourth subdivision quoted above is too general to be considered. M., K. & T. Ry. Co. of Texas v. Churchill, 171 S. W. 517; K. C., M. & O. Ry. Co. v. Corn, 186 S. W. 807; Morris v. McSpadden, 179 S. W. 554. We agree with appellant that it is......
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O'Neil Engineering Co. v. City of San Augustine
...construction tends to further the evident purpose and object of the Legislature in its enactment. In the recent cases of Railway Co. v. Churchill, 171 S. W. 517, and Conn v. Houston Oil Co., 171 S. W. 520, this court approved and followed the rule announced in the cases above If, however, w......