Missouri Pac. R. Co. v. Johnson

• Decision Date: 23 November 1888
• Citation: 10 S.W. 325
• Parties: MISSOURI PAC. R. CO. <I>v.</I> JOHNSON.
• Court: Texas Supreme Court

Page 325

10 S.W. 325

MISSOURI PAC. R. CO.

v. JOHNSON.

Supreme Court of Texas.

November 23, 1888.

Appeal from district court, Upshur county; FELIX J. McCORD, Judge.

J. R. Burnett, for appellant. N. W. Finley and H. Chilton, for appellee.

GAINES, J.

In December, 1887, certain coaches of a passenger train operated by the appellant company were derailed near the town of Troupe, in Smith county. The appellee was a passenger upon the train at the time of the accident, and the car upon which he was being conveyed was overturned, and he was injured. He brought this suit to recover damages, both actual and exemplary, for the injury During the trial the plaintiff, having introduced evidence tending to show gross neglect on part of the defendant in failing for a long time to keep in repair the road it was operating, was permitted to prove, over the objection of the defendant, that it was the general reputation in the community along the line of the road that the track was in bad order. It is to be presumed that the evidence was admitted for the purpose of showing that the company had knowledge of the defective condition of the road. The evidence may have been admissible for this purpose, though it seems to us it was unnecessary. The condition of the track, as is shown by all the evidence, had not materially changed for several months prior to the accident; and if that condition was such as plaintiff claimed it to be,—unsafe by reason of old and worn-out rails, ties rotten at the ends, so that they afforded no protection to the rails, etc., — the want of repair was visible and manifest, and the company must be held to have known of it. Not to know it would be greater negligence than to know it and not repair; and, as a matter of fact, it would be absurd to presume that for this long period of time the company's officers did not have actual knowledge of the defective condition of the track.

It not appearing that the agents of the company charged with the duty of keeping the road-bed in repair lived in, or were brought directly into communication with, the community in which the reputation was sought to be proved, it may be doubted whether, under all the circumstances, evidence of general reputation should have been admitted. But was the appellant prejudiced by the introduction of the evidence? It will appear further on in this opinion the verdict for exemplary damages cannot be permitted to stand, and hence it is unnecessary to discuss the effect of the evidence upon the verdict of the jury in that particular. Its effect upon the finding for actual damages will be disposed of in connection with the question of the correctness of the ruling of the court in the admission of the evidence of Col. T. R. Bonner, which is raised in the second assignment. That witness was permitted to state, over objection of defendant, that he wrote a letter to the local treasurer of the company in St. Louis, informing him of the condition of the road. The testimony was objected to, on the grounds that the original letter should have been produced or its absence accounted for, and that notice to the local treasurer was not notice to the company. Admitting that the treasurer was the agent of the company in regard to this matter, notice should first have been given to defendant to produce the letter. If it should be held that the letter did not pass into defendant's custody, then it should have been shown that the plaintiff could not produce it. The evidence was clearly inadmissible. But as to its effect upon the verdict for exemplary damages the admission becomes immaterial.

But did the admission of this evidence, and that of the general reputation as to the condition of the road, operate to the prejudice of appellant upon the main issue? It was clearly the purpose of the testimony, not to prove the main fact, — the negligence of the defendant, — but to show knowledge. But it is held that, when evidence is introduced for a special purpose that is not competent upon the main issue, it is the duty of the court in the charge to confine its consideration to the particular issue upon which it is relevant. In such a case a charge of that character is proper. But the rule in this court is not to reverse for a mere failure to give an appropriate instruction, unless a special charge has been asked, sufficient at least to call the attention of the court to the necessity of giving some instruction upon the point. It frequently occurs that evidence not admissible upon the main issue is admitted for a special purpose, and that the object of its admission is so obvious that the jury cannot be misled. It seems to us, therefore, that the reason of the rule which requires a special request for an instruction applies in such case with undiminished force. Moreover, we are of opinion that the jury could not have been misled in this particular case. The evidence was but cumulative, and tended but slightly to establish a fact upon which the other testimony was overwhelming on behalf of the plaintiff. A cloud of witnesses, some of whom had walked over the track, testified to facts which showed beyond controversy its defective condition. Even the testimony of defendant's witnesses tended to establish the same conclusion. The testimony of its road-master showed that the iron was 14 or 15 years old, and that some of the ties were rotten, and that the bed was in had condition on account of rain and snow. He stated that track-walkers had to be kept upon the road to flag the trains in case of danger, and, from his testimony, it is to be inferred that this was an extraordinary precaution taken on account of the condition of the road. His testimony that 92,002 ties, out of 116,160 necessary to tie the road, had been put down in 1884, and subsequent to that time, does not weigh against the testimony of the witnesses who swore that many of the ties were rotten at the end, so as not to support the rails, and that in some places two or more of such ties were to be found in succession. All defendant's witnesses virtually admitted that the condition of the road was bad, but claimed that it was due to bad weather. Under this state of case, it is unreasonable to suppose that the evidence had any effect upon the minds of the jury, so far as the main issue was concerned, and its admission, therefore, was harmless error.

It is also assigned that the court erred in refusing to compel the plaintiff to submit to a physical examination by physicians, in order to determine the extent of his injuries. The facts relating to this matter, as shown by the bill of exceptions, are that the court did make the order; that the defendant presented Dr. Hicks and Dr. Daniels to make the examination, and that the plaintiff declined to be examined by Dr. Hicks, assigning no other reason except his personal aversion to that gentleman. He expressed his willingness to be examined by any...