St. Louis Southwestern Ry. Co. of Texas v. Lowe

• Decision Date: 10 November 1906
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LOWE.
• Court: Texas Court of Appeals

97 S.W. 1087

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LOWE.

Court of Civil Appeals of Texas.

November 10, 1906.

Rehearing Denied December 8, 1906.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by Alex Lowe against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant.

TALBOT, J.

This is the second appeal in this case. 86 S. W. 1059. The suit is to recover damages for injuries sustained by appellee's wife as a result of exposure to cold in the waiting room of appellant's depot at Neyland, in Hunt county, Tex., January 27, 1902. By an amended petition it is alleged, in substance, that on the day mentioned appellee's wife, Celia Lowe, went to appellant's depot at Neyland for the purpose of becoming a passenger and to go to Greenville, Tex., on one of appellant's passenger trains the afternoon of that day; that the train going to Greenville and upon which she intended to take passage was scheduled to arrive at said station at 2:30 o'clock p. m., and that she reached said station and entered the depot house about 15 minutes before that time; that the weather was very cold, the ground being covered with snow, sleet, and ice, and a cold wind blowing from the north; that, when she entered the waiting room of appellant's depot, there was no agent there and said waiting room was very cold; that there was no fire in said waiting room and no means of heating it; that said room was open, the window panes in the north window being broken and out, and the cold wind blowing through the room; that appellant's agent did not come to the depot until about one hour after the schedule time for the arrival of the train, when he sold appellee's wife a ticket to Greenville, and then told her that the train was late, but could not or did not inform her definitely when the same would arrive; that for a period of 2½ hours she remained at appellant's depot awaiting the arrival of said train, during which time the waiting room was without fire or warmth because of the negligence of appellant and its servants; that as a result of the condition of said waiting room and the cold to which appellee's wife was exposed by reason thereof she contracted a severe cold, causing a cough which had continued with increasing severity to the time of the filing of this petition; that said exposure caused her to take bronchitis, tuberculosis, or consumption of the lungs, from which she is still suffering, and also to contract sciatica and rheumatism; that said exposure destroyed the voice, health, and strength of appellee's wife, and caused her to contract and suffer from prolapsus and diseases of the uterus and ovaries, etc.; that all of said injuries are permanent, and appellee's wife has suffered by reason thereof great physical and mental pain. Defendant pleaded a geneal denial and contributory negligence. A jury trial resulted in a verdict and judgment for appellee in the sum of $1,000, from which appellant has appealed.

After appellee had introduced his testimony in chief and after the defendant had closed its testimony appellee's witness, Dr. Spaulding, was called, and over the objection of appellant was permitted to testify that in the summer of 1902 he examined the lungs and chest of appellee's wife and found some consolidation of the lungs, a small cavity in one of them, and tubercular bacilli was found in the sputum. The court overruled appellant's objection that this testimony was not in rebuttal of any evidence introduced by it, and the ruling is made the basis of appellant's first assignment of error. No reversible error is shown in this action of the court. Whether the plaintiff should be permitted, after the defendant has concluded its testimony, to introduce evidence not in rebuttal, rests in the sound discretion of the trial judge. Rev. St. 1895, art. 1298; Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Pope v. Davenport, 52 Tex. 206. This discretion, by the express provisions of the statute cited, may be exercised at any time before the conclusion of the argument, and will not be revised unless an abuse of it is clearly shown to the prejudice of the party complaining. Folts et al. v. Ferguson et al. (Tex. Civ. App.) 24 S. W. 657. It does not appear that, as a consequence of appellee's failure to offer the evidence complained of in chief, appellant was not prepared with rebutting testimony or otherwise suffered by reason of the order in which said evidence was introduced.

While appellee was upon the stand testifying he was asked by his counsel the following questions: (1) "If his wife, Celia, had ever had any cough or lung trouble prior to her exposure in defendant's depot." (2) "Whether or not his wife had ever had any female trouble prior to the exposure in defendant's depot." (3) "If his wife, Celia, ever suffered with rheumatism, lumbago, or any thing of that kind before the time of exposure in defendant's depot in January, 1901." Appellant objected to the first and second of these questions on the ground they were leading, suggestive, and called for the opinion of a nonexpert, and to the third on the ground that it was leading. The objections were overruled, the questions answered in the negative, and the rulings of the court are assigned as error. We do not think the first and second questions were subject to the...