Missouri, K. & T. Ry. Co. of Texas v. Churchill

• Decision Date: 28 May 1919
• Docket Number: (No. 57-2773.)
• Citation: 212 S.W. 155
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL.
• Court: Texas Supreme Court

Page 155

212 S.W. 155

MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL.

(No. 57-2773.)

Commission of Appeals of Texas, Section A.

May 28, 1919.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by S. A. Churchill against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (171 S. W. 517), and defendant brings error. Affirmed as recommended by Commission of Appeals.

Baker, Botts, Parker & Garwood, of Houston, John L. Darrouzet, of Galveston, and John T. Garrison, of Houston, for plaintiff in error.

Morsene Johnson, Roy Johnson, and Elmo Johnson, all of Galveston, S. L. Staples, of Smithville, and C. L. Black, of Austin, for defendant in error.

STRONG, J.

This suit was brought by S. A. Churchill against the Missouri, Kansas & Texas Railway Company of Texas to recover damages on account of personal injuries alleged to have been received through the negligence of defendant company.

The facts, briefly stated, show that on the day of his injuries plaintiff accompanied his mother and two children to the Union Station in Galveston for the purpose of assisting them in boarding defendant's train. He entered the train for that purpose and began arranging their seats and baggage; but, before he accomplished this, the conductor gave the signal for the train to start, and it began to move out. Plaintiff immediately requested the conductor to stop the train and let him off. This the conductor refused to do. Plaintiff then undertook to alight from the train, and in doing so his head came in contact with an iron support of the shed under which the train was moving, knocking him from the steps of the coach to the ground and inflicting the injuries complained of.

Plaintiff alleged in his petition, and the jury found in answer to special issues submitted, that before entering the train, plaintiff informed the conductor of his purpose in boarding the train; that the train was not held a sufficient length of time to allow plaintiff to get off; that plaintiff waited a reasonable length of time for the train to be stopped after he requested the conductor to let him off; and that defendant was guilty of negligence in using the track in such close proximity to the post with which plaintiff came in contact in his effort to alight from the train. The jury also found that plaintiff was not guilty of contributory negligence in his conduct after the train started.

Judgment was rendered in the trial court for plaintiff, which was affirmed by the Court of Civil Appeals. 171 S. W. 517.

In granting the writ of error, the Supreme Court was inclined to the view that the Court of Civil Appeals erred in refusing to consider defendant's fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth assignments of error, which are predicated upon the action of the trial court in refusing to submit to the jury certain special issues requested by defendant. The Court of Civil Appeals refused to consider these assignments because it did not appear from the transcript that a bill of exception was reserved to the action of the trial court in refusing to submit the special issues requested.

This case was tried under the Practice Act of 1913 (Laws 33d Leg. p. 113), which was still in force at the time the case was acted upon by the Court of Civil Appeals. By the terms of that act, article 2061, R. S. 1911, was amended so as to read as follows:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles." Vernon's Sayles' Ann. Civ. St. 1914, art. 2061.

This writ of error was granted prior to the decisions of the Supreme Court in the case of Railway v. Dickey, 108 Tex. 126, 187 S. W. 184. In that case the court, after carefully reviewing the various provisions of the act of 1913, and construing them in connection with other provisions of the statute then in force, said:

"The effect, therefore, of amended article 2061 is to require the taking of a written bill of exception to the giving or refusing of a special instruction in order to have a revision of the court's action on the appeal."

There is no bill of exception in the transcript to the action of the court in refusing to submit the special issues requested, but it is insisted that the following agreement filed while the case was pending in the Court of Civil Appeals is sufficient to show that...