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

• Decision Date: 01 March 1916
• Docket Number: (No. 5626.)
• Citation: 184 S.W. 566
• Parties: SAN ANTONIO & A. P. RY. CO. v. BLAIR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

184 S.W. 566

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

(No. 5626.)

Court of Civil Appeals of Texas. San Antonio.

March 1, 1916.

Rehearing Denied March 22, 1916.

Appeal from District Court, Karnes County; F. G. Chambliss, Judge.

Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. Plaintiff dying during its pendency, the action was revived in the name of Mrs. Lula Blair, administratrix. From a judgment for plaintiff, defendant appeals. Affirmed.

Proctor, Vandenberge, Crain & Mitchell, of Victoria, Williamson & Klingeman, of Karnes City, and Boyle & Storey, of San Antonio, for appellant. C. L. Bell, of Karnes City, and C. C. Harris and Arnold, Cozby & Peyton, all of San Antonio, for appellee.

FLY, C. J.

This suit was instituted by H. A. Blair, seeking to recover damages alleged to have accrued by reason of personal injuries inflicted on him through the negligence of a porter in throwing a trunk upon him. He obtained judgment, but upon appeal to this court the judgment was reversed, and the cause remanded. 173 S. W. 1186. Since that time it was shown that H. A. Blair had died and his widow, Lula Blair, as administratrix and for G. W. Blair, father of deceased, filed a third amended petition, in which she alleged that her husband was injured through the negligence of appellant, in that its porter, who was engaged in placing trunks on a platform near where H. A. Blair was sitting, caused a trunk to fall upon and against him, and in the alternative it was alleged:

"That a trunk fell from the top of other trunks or baggage standing on said baggage platform, and in falling the said trunk struck H. A. Blair inflicting injuries upon him which resulted in his death as herein alleged; and the said trunk which fell had been placed upon the top of other trunks or baggage by the employé, or employés, of the defendant in the discharge of the duties of their employment for the defendant, and who had been intrusted by the defendant with the duty of handling trunks and baggage on said platform; and the said trunk which fell had been placed in an insecure position on top of other trunks or baggage, and the placing of said trunk in an insecure position upon other trunks or baggage, was negligence upon the part of the defendant, and such negligence was a direct and proximate cause of the trunk falling and of striking H. A. Blair, and of the injuries and death of H. A. Blair, and of the damages set forth in this petition."

The cause was tried with the aid of a jury, and resulted in a verdict and judgment in favor of Lula Blair, as administratrix, in the sum of $24,500, and in favor of G. W. Blair for $500.

On the former appeal of this case it was held that, as to the only allegation of negligence, namely, that the porter had thrown the trunk upon and against H. A. Blair, evidence was insufficient. On the former trial deceased alone had sworn that the negro porter was at or near the pile of trunks when the trunk fell or was thrown, and this court held that the evidence did not tend to show that the trunk was thrown as was alleged. In the amended petition, upon which the last trial was had, the allegations were changed and amplified so as to make a case of the negligent handling or negligent placing of the trunk so that it fell from its position and struck the deceased. On this trial not only was the testimony of deceased introduced, but Grasshoff, who was with him at the time, testified that he saw the porter standing at the place from which the trunk fell. He also testified that it was customary for employés to sit or lie down on the platform near the piles of trunks or sit or stand on the ground near such platform, and passengers did the same. It was in evidence that H. A. Blair was very tall and could probably have seen the negro as he swore he did. There was no break or opening in the line of trunks after the trunk fell which struck Blair. Grasshoff swore that he had been working about the platform for two or three years, and had never known a trunk to fall before. The testimony as to the porter being at or near the place whence the trunk fell was not contradicted, although the porter, Dock Hackett, and another witness, James Quigley, who was near or on the platform at the time, were present. Neither was placed on the witness stand, although both were in the employment of appellant and were in attendance on the trial as witnesses for appellant.

The fact that Grasshoff corroborated deceased, on this trial, as to the presence of the negro porter near the trunk when it fell; that no opening was left in the line of trunks when the trunk fell; that the height of deceased was proved; that employés and passengers were permitted, without warning, to use the platform near the piles of trunks; that no trunk had ever been known to fall before — each and all are facts not had on the former trial, which go to strengthen the theory that the trunk fell because it was not carefully and properly placed in its position. The fact that appellant, although it had its witnesses present, failed and refused to place them on the stand is another pregnant circumstance tending to establish the truth of appellee's testimony. The presumption is that the evidence of their witnesses would not have shaken the evidence of appellee's witnesses, nor strengthened the case of appellant. Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801. As said in Mitchell v. Napier, 22 Tex. 120:

"Where a party is thus afforded the opportunity to explain, and fails or refuses to do so, the rational and legal presumption is, that a disclosure of the truth would make against him. * * *"

It was said by Lord Mansfield:

"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted."

This is a quotation from an English case found by this court in Jones on Evidence, § 19. If the porter was not where the evidence of Grasshoff and H. A. Blair placed him, he and Quigley should have been placed on the stand to deny it.

Whatever may have been the aspect of the case on the former trial, the evidence at this time tends to show that the porter either caused the trunk to fall by handling it, or that he negligently piled it in such a manner that it slipped off its place and fell. There was other testimony besides that of Grasshoff tending to show that H. A. Blair could have seen a man standing behind the line of trunks. The height of the platform was shown, and it was not high enough with the trunks piled, as they were, to obscure the vision of a man in the position occupied by H. A. Blair. A photograph indicates that the head of a man sitting down extended above the platform.

The testimony tends to show that if the trunks had been properly piled, none of them would have fallen; that H. A. Blair was in a position where it was customary for employés to go, and that it was not...