Missouri Pac. Ry. Co. v. Mitchell

• Decision Date: 12 November 1889
• Citation: 12 S.W. 810
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> MITCHELL.
• Court: Texas Supreme Court

12 S.W. 810

MISSOURI PAC. RY. CO.v.

MITCHELL.

Supreme Court of Texas.

November 12, 1889.

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

This was an action for damages, brought by J. W. Mitchell against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Whitaker & Bonner, for appellant. H Chilton, for appellee.

HENRY, J.

Appellee brought this suit to recover damages for personal injuries received by him in a wreck of one of defendant's trains, on which he was being conveyed as a passenger, at a point between Tyler and Troupe. The petition charges that the road-bed between the two places named, as well as at the place of the wreck, was out of order, in bad condition, and unsafe for the transportation of passengers thereon; that the ties, at the place of the derailment, were old and rotten, the iron rails were worn and broken, and the track was out of level, — all of which contributed to and caused the wreck. The petition charged that plaintiff's expense for medical attention, to which he was subjected in consequence of his injuries, amounted to $100; that the value of time lost by him amounted to $500; and that, by his physical and mental suffering, he had been damaged $10,000. He prayed for $20,000 as exemplary damages. The petition contains also the following additional allegation: "Plaintiff further charges that by said derailment he was put to great inconvenience and delay; that he was expected at the city of Tyler on the said 26th day of December, 1887, but was unable to reach said city; that the weather was bitterly cold, and the place of the accident was not near any house, and that he was forced to walk back to the town of Troupe for shelter, and suffered greatly thereby; and that, by reason of said inconvenience and delay, he was damaged in the further sum of five hundred dollars."

The court, in its charge to the jury, directed them to take into consideration the injuries of defendant on account "of mental pain and physical suffering; his loss of time, medical bills, and his inconvenience." The defendant specially excepted "to all allegations in the petition claiming five hundred dollars for inconvenience and delay, because they are vague, and do not show with sufficient certainty facts that entitle plaintiff to recover such damages." The exception was overruled by the court. Over the objection of defendant, plaintiff was permitted to prove, by many witnesses, that the International & Great Northern Railroad bed and track between Troupe and Tyler, and also between Tyler and Lindale, at and before the time of the wreck, was in bad condition; that many ties were rotten, and the iron greatly worn; and that several wrecks of freight and other trains had occurred between said points. The bill of exceptions taken by defendant to the ruling states that the evidence was offered by plaintiff to show gross negligence under his claim for exemplary damages. At the request of defendant's counsel, the court charged the jury "not to find exemplary damages against defendant, merely because of the alleged bad condition of the railroad, bed, and track, and not to consider any evidence of the bad condition of the track and road-bed at other places than where the wreck occurred, if the wreck was caused by a broken rail." The...