San Antonio & A. P. Ry. Co. v. Lester

• Decision Date: 30 November 1904
• Citation: 84 S.W. 401
• Parties: SAN ANTONIO & A. P. RY. CO. v. LESTER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 401

SAN ANTONIO & A. P. RY. CO. v. LESTER.^*

Court of Civil Appeals of Texas.

November 30, 1904.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Joseph L. Lester against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Houston Bros. and R. J. Boyle, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

FLY, J.

This is an appeal from a judgment for $10,000 obtained by appellee on account of damages inflicted on him by jumping from a moving train which was about to collide with another train standing on the track. Appellee was injured in the sum found by the jury by jumping from the locomotive of which he was in charge as engineer, which was about to crash into the rear of a freight train standing on the track. The danger was imminent, and appellee jumped from the locomotive to save his life. The collision took place between the engine on which appellee was riding and the caboose of the standing train through the negligence of appellant in not having a light burning in the cupola of the caboose, and in failing to send a flagman back to warn appellee of the danger of a collision with the standing train. The train into which the locomotive ran had been standing on the track where it was struck for 35 minutes before the collision, and no effort had been made to prevent the train that was following it from running into it. The rules required that a flagman should be sent back, under such circumstances, to warn approaching trains. Appellee had his train under control, as required by the rules, and could have stopped it in time to have prevented the collision if the light had been in the cupola of the caboose or the flagman had been sent out to notify him of the presence of the train.

Through the first assignment of error appellant raises the question of the eligibility of four jurors who were held qualified although neither had paid his poll tax for the preceding year. From the bill of exceptions it appears that only two of the jurors really served on the jury. The bill of exceptions shows that 7,402 persons in Bexar county had paid their poll tax, and that 1,350 persons had proved their exemption from the tax. How many of the 8,752 persons qualified to vote were qualified jurors does not appear in the bill of exceptions. The objection to the jurors was made when the panel of 24 jurors were being tested as to their general qualifications, and the bill of exceptions does not indicate whether any of his peremptory challenges were directed at either of the poll-tax delinquents. It cannot be ascertained, except by inference, that either of the jurors owed a poll tax, as there is nothing in the bill of exceptions that points out whether either of the jurors was over or under the poll-tax age. There is nothing in the bill of exceptions indicating that the action of the court in not sustaining the challenges for cause in any wise injured appellant. It is the rule in Texas, established by a long line of decisions, that a bill of exception should state the facts in regard to the matter of which complaint is made in such a manner as to exclude any reasonable hypothesis upon which the decision of the trial court can be sustained. Every point in the bill of exceptions must be so clear and full that nothing will be left to inference or implication. Merlin v. Manning, 2 Tex. 351; Sadler v. Anderson, 17 Tex. 245; Anderson v. Anderson, 23 Tex. 641; Hill v. Cunningham, 25 Tex. 32; Golden Rule v. Rose, 62 Tex. 321; Snow v. Starr, 75 Tex. 411, 12 S. W. 673. In the case of Waggoner v. Dodson, 68 S. W. 813, Chief Justice Connor, of the Court of Civil Appeals of the Second District, in a dissenting opinion, discussed a bill of exceptions in regard to the challenge of jurors, and held that it was defective. He said: "The rule is of long standing that a party desiring to present for revision a ruling of the character involved in this case must do so by bill of exception which in terms is so specific as to point out the precise error intended to be relied upon, and that it should state the facts so as to exclude any reasonable conclusions of fact other than those stated upon which the decision could be maintained." The Supreme Court sustained the dissenting opinion on another point, but in speaking of the point about which the above-quoted language was used it was said: "This renders it unnecessary for us to decide whether, in an exception to the action of the court in allowing or denying peremptory challenges, the bill should show specifically that the excepting party had been prejudiced by the ruling. We will say, however, that it seems to us that our decisions sustain the affirmation of the question." Waggoner v. Dodson, 96 Tex. 6, 68 S. W. 813, 69 S. W. 993. It may have been that the jurors retained on the jury who had not paid a poll tax were young men, who had reached their majority after January 1st of the year in which the trial was had, or that they were men who had passed the age when a poll tax is required, and in either instance the payment of a poll tax would not be a prerequisite to serving on the jury. The bill of exceptions does not show whether the jurors then or at any time before February 1st owed a poll tax, the only question being as to whether a poll tax had been paid. It devolved on appellant to show that the jurors were disqualified under the law providing for the payment of a poll tax, and no inference will be indulged in to support a bill of exception which fails to show clearly that the jurors were disqualified. The presumption is that the trial court acted properly in accepting the jurors, and that presumption is not destroyed by the fact that the court gave other reasons than those suggested here for his action in his qualification to the bill of exceptions for overruling the objections to the jurors.

It is not shown by the bill of exceptions, nor claimed by appellant, that any injury was inflicted upon it by the...