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

• Decision Date: 28 February 1900
• Citation: 56 S.W. 214
• Parties: SAN ANTONIO & A. P. RY. CO v. CHOATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 214

SAN ANTONIO & A. P. RY. CO v. CHOATE.¹

Court of Civil Appeals of Texas.

February 28, 1900.

Appeal from district court, Karnes county; J. C. Wilson, Judge.

Action by F. B. Choate against the San Antonio & Aransas Pass Railway Company for injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Proctors, for appellant. E. R. Lane and Chas. H. Mayfield, for appellee.

JAMES, C. J.

This case has been the subject of several opinions. Railway Co. v. Choate, 35 S. W. 180, 90 Tex. 82; 43 S. W. 537; 91 Tex. 406. It is not necessary to again explain the nature of the case. In view of the testimony of additional witnesses, we find, as conclusions of fact herein, that plaintiff was injured through the negligence of defendant's servants, and was not guilty of contributory negligence.

The first assignment is that there was error in admitting the testimony of the new witnesses, for the reason that previous to the taking of their depositions plaintiff had estopped himself from introducing such testimony by stating in his application in 1896 to the supreme court for a writ of error in this cause that all the testimony in the case was presented in the then statement of facts, and that no new evidence would or could be introduced upon another trial, and that the judgment of this court reversing and remanding practically settled the case; and by a later application to the supreme court in 1898 for a writ of error, and before the taking of said deposition, plaintiff stated substantially the same. From the opinion of the supreme court expressed in Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245, and of this court in Railway Co. v. Eckles (recently decided) 54 S. W. 651, we are of opinion that the declarations in the applications did not have the effect of estopping plaintiff from introducing other testimony at a subsequent trial.

The second and third assignments, as presented in appellant's briefs, complaining that the answers of witnesses to a certain interrogatory were not responsive, are not deemed well founded.

The eighth assignment complains of the refusal of a charge stating that, even if plaintiff was thrown from the train by an unusual and violent jerk, yet if the jury believed that, as the train stopped, plaintiff went out upon the platform from curiosity, without intending to get off, and had no right there, and was injured in consequence of going uselessly upon the platform, and that a person of ordinary prudence would not have so acted, they would find for defendant. The charge did not stop at this, but concluded as follows: "For plaintiff's act in going upon the platform was a cause of this injury, and your inquiry, as regards such act of plaintiff, should be directed to the ascertainment of whether or not said act of going out upon said platform was a negligent act." The charge assumed that the act contributed to the injury. It was not entitled to be given, under the rule stated in Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. The concluding part of the charge was made the controlling part of it, and by it the jury would, after all, have been directed to determine whether or not plaintiff's act of going out upon the platform was negligence; and this concluding part was the gist and substance of the charge. It converted a charge attempting to group certain facts relied on into a general charge on the issue of contributory negligence, and we find that the court charged the jury fully on contributory negligence, and particularly that, if plaintiff was in a place where an ordinarily prudent person would not have been under the circumstances, he could not recover. The charge asked amounted to this: that if plaintiff was...