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

• Decision Date: 29 March 1905
• Citation: 87 S.W. 400
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. FRAZIER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

87 S.W. 400

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. FRAZIER.^*

Court of Civil Appeals of Texas.

March 29, 1905.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Action by J. W. Frazier against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins, Frost & Neblett, and L. Carpenter, for appellant. Ed. Sewell, for appellee.

KEY, J.

Appellee brought this suit against appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellant. From a judgment for the plaintiff for $750 the defendant has prosecuted this appeal.

The testimony shows that plaintiff was a passenger riding in a box car on the defendant's railroad, which car contained household goods and two horses belonging to the plaintiff. In fact, the plaintiff was moving; his destination being Frost, a town on the defendant's railway. The train stopped at Tyler, and the car referred to was placed upon a side track; and while there another car, loaded with oil, was propelled onto the same switch, and struck the car occupied by the plaintiff. According to the plaintiff's testimony, this was violently done, and in such manner as to constitute negligence, and, as a result thereof, he was knocked down and injured.

The first assignment of error is addressed to the action of the court in overruling an objection to testimony. The conductor of the train, as a witness for the defendant, testified: That he had some talk with the plaintiff. That "he said he got knocked down at Tyler. That was about all he said, except he said he was not hurt any—only his face was skinned. He said nothing about his horses being hurt. He did not complain any, except he said he got knocked down, and his face got scratched. He did not complain about not being able to do anything." In rebuttal the court permitted the plaintiff to testify in reference to what occurred between him and the conductor, as follows: "I was in my car, and he was on top, and he talked to me in a very rough manner. He said, `Old man, get out.' I told him I couldn't get out, and he asked me what was the matter, and I told him I got hurt in Tyler, and was not able to get out of the car, and he came around and said, `How did they hurt you?' and I told him they ran an oil car in on me, and he said, `Damn it! they ought to pay for it.'" Inasmuch as the conductor had undertaken to detail to the jury the complaint which plainti...