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

Decision Date17 November 1915
Docket Number(No. 5535.)
Citation181 S.W. 718
CourtTexas Court of Appeals

Appeal from McLennan County Court; Geo. N. Denton, Judge.

Action by John Padgett and wife against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant.


This suit was brought by John Padgett and wife against the appellant to recover damages for personal discomfort, fright, and humiliation suffered by his wife on account of her alleged expulsion from the passenger depot of appellant at South Bosque, a way station on said road. The appellees, in substance, alleged that Mrs. Lula Padgett, accompanied by her five children, ranging from 11 years to 2 months, went on the afternoon of May 22d to said depot for the purpose of taking passage on appellant's train to Waco, reaching said station about 4:30 o'clock, some 20 minutes in advance of the schedule time for the arrival of the train; that she purchased tickets for herself and such of her children as were subject to pay fare, and remained in the depot awaiting the arrival of said train, which was late, until 7 o'clock, at which time the agent informed her that she must leave the station, as he intended to close it up for the night, and that he would not return, but that if she desired to do so she could occupy the waiting room for negroes, which was not lighted; that it had been raining, and the ground about said depot was wet and boggy; that there were no hotels convenient or accessible, nor any other place to which she could repair while awaiting the arrival of said train; that she was forced by the act of said agent in closing said depot to remain on the outside, on the wet and muddy ground, with her children, subject to the bites and annoyances of innumerable mosquitoes and other insects, for the space of about three hours; that there was a construction train, the crew of which was composed of Mexicans and negroes, within about 50 yards of the depot; that it was a dark night, and that up to within a short time of the arrival of said train there was a constant passing up and down the track of the negroes and Mexicans, by reason of all of which she suffered great physical pain, personal inconvenience, and fright, and was mortified and humiliated.

Appellant replied by specific denials of plaintiff's allegations, and relied upon the plea of contributory negligence, alleging that Cartwright's store, which was open, and at which railroad tickets were sold, was within 100 feet of the depot, where she could have remained while awaiting the arrival of the train, which arrived about 10 o'clock, and also that Mrs. Peck, who lived near by, extended Mrs. Padgett an invitation to stay at her house while waiting, which she declined.

The case was tried before a jury on special issues, and resulted in a verdict and judgment in behalf of plaintiffs for the sum of $250, from which appellant has prosecuted this appeal, assigning error in the refusal on the part of the court to give a peremptory instruction in its behalf, on the ground that the evidence failed to show that plaintiffs were entitled to recover. Appellant asserts by its proposition thereunder that actual damages cannot be recovered for mental suffering, in the absence of physical injury or other element of actual damage — citing in support of this contention G., C. & S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866; Same v. Hayter, 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856; Tarvin v. T. & P. Ry. Co., 151 S. W. 640.

The material averments of plaintiff's petition were sustained by the evidence, and the jury found that plaintiff was not guilty of contributory negligence, and there was evidence to support this finding. While the authorities cited support appellant's contention still we think that they can be differentiated and distinguished from the instant case. G., C. & S. F. Ry. Co. v. Trott, supra, was an action to recover damages for fright and fear for appellee's personal safety on account of negligently causing his team of horses to run away; but there was no averment or proof of physical injury, nor did any contractual relation exist between the plaintiff and the railway company. In the present case such relation did exist, and there was some proof of personal discomfort and physical injury.

The case of G., C. & S. F. Ry. Co. v. Hayter, supra, is not, we think, in point, because in that case it was held that, where physical injury results from fright or other mental shock caused by the wrongful act or omission of another, the injured party is entitled to recover his damages, provided the act or omission was the proximate cause of the injury, and that the injury, in...

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  • St. Louis Southwestern Ry. Co. of Texas v. McKetcham
    • United States
    • Texas Court of Appeals
    • December 15, 1915
    ...E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. JENKINS, J. This is a companion case to St. L. S. W. Ry. Co. of Texas v. J. J. Padgett et al., 181 S. W. 718, recently decided by this court; the facts being the same, except as to parties plaintiff. For reasons stated in t......

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