Missouri Pac. Ry. Co. v. Shuford

• Decision Date: 30 November 1888
• Citation: 10 S.W. 408
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> SHUFORD.
• Court: Texas Supreme Court

10 S.W. 408

MISSOURI PAC. RY. CO.v.

SHUFORD.

Supreme Court of Texas.

November 30, 1888.

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

Action by James Shuford against the Missouri Pacific Railway Company. Defendant appeals.

J. R. Burnett, for appellant. H. Chilton, for appellee.

STAYTON, C. J.

This is an action by appellee to recover damages for an injury alleged to have been inflicted upon him while a passenger on appellant's train. He alleged that the injury was caused by the failure of appellant to keep its road in good order, and sought to recover damages, actual and exemplary. The cause was tried by a jury, who returned a verdict in favor of appellee for $4,000 as actual damages, and $8,000 as exemplary damages, on which judgment was entered.

This and another, both being appearance cases, on proper application were placed on the jury docket. The other case, however, preceded this on the general docket, having been first filed, and both properly numbered in their order, but when placed on the jury trial docket this case was placed first, the proper numbers of the cases, however, being preserved. When this case was called, appellant insisted that the other case should be first tried, but the court ruled that the causes should be tried in the order in which they stood on the jury docket. The statute provides that "all suits in which final judgments shall not have been rendered by default, as hereinbefore provided, shall be called for trial in the order in which they stand on the docket to which they belong, unless otherwise ordered by the court." Rev. St. art. 1287. The statute contemplates that cases shall be docketed and numbered in the order in which the petitions are filed. Id. arts. 1181-1183. In making up the jury civil docket the same order should be observed as on the general docket, and the provisions of article 1287 should be complied with in the disposition of cases on that docket, unless for good cause shown the court should otherwise direct. Id. art. 3070. If through inadvertence the clerk shall not place cases on the jury docket in their proper order, then in calling cases for trial they should be called in their proper order as determined by number.

In Kirkland v. Sullivan, 43 Tex. 233, it was held reversible error to call and force a party to try a cause out of its order, but the statute in force when that case was tried is unlike that now in force, in that it required all cases to be tried in their order, "unless otherwise ordered by the court, with the consent of the parties or their attorneys." The statute now in force recognizes the power of the court to require a cause to be tried out of its order without reference to the consent of parties. The exercise of this power may be revised by this court, but it is incumbent on the party seeking a revision of the action of the court in this respect to show that he was injured by the ruling. Allyn v. Willis, 65 Tex. 70. The bill of exceptions filed does not show that appellant suffered any injury by the ruling complained of, nor that it was not as well prepared to try the case as it would have been if it had not been tried until the one preceding it had been disposed of. This action was brought on January 21, 1888, and was called for trial on February 23d following. When called, an application for continuance was made, for the want of the testimony of two witnesses, resident in counties other than that in which the cause was pending. Service on defendant was had on same day the suit was filed; interrogatories to take the depositions of these witnesses were not filed until February 15th; commissions to take their depositions were issued on the 22d, and these were sent to the general attorneys of appellant, at Houston, Tex., in order that they might have the depositions of the witnesses residing in Bowie and Anderson counties taken. This was not the exercise of that diligence required by the law. There was no application to postpone the hearing of the cause until a later day of the term, nor does it appear that the evidence would have been obtained in time for the trial, had it not been tried out of its order.

It is conceded that facts existed which entitled appellee to recover actual damages, but the sufficiency of the evidence to authorize the allowance of exemplary damages is questioned, and there is ground for controversy upon that point. The accident occurred about two miles from Troupe, on appellant's road, between that place and Mineola. The distance between these places is 44 miles. The immediate cause of the accident through which appellee was injured, was shown to be a broken...