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

• Decision Date: 07 June 1905
• Citation: 88 S.W. 509
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOYD.
• Court: Texas Court of Appeals

88 S.W. 509

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

Court of Civil Appeals of Texas.

June 7, 1905.

Dissenting Opinion, June 24, 1905.

Appeal from District Court, Bowie County; S. P. Pounders, Special Judge.

Action by William Boyd against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed.

E. B. Perkins and Glass, Estes & King, for appellant. Horace W. Vaughan and Randell & Wood, for appellee.

EIDSON, J.

This suit was brought by appellee against appellant in the court below to recover damages for personal injuries alleged to have been received by appellee on the 13th day of June, 1903, through the negligence of appellant in a collision between a hack which appellee was driving and some cars which were being switched by appellant on one of its switch tracks on Oak street, in Texarkana, Tex. Appellant pleaded a general denial, and contributory negligence on the part of appellee. A trial before a jury resulted in a verdict and judgment for appellee in the sum of $10,000.

Appellant's twelfth assignment of error complains of the action of the court below in overruling its motion for a new trial, based upon the ground that appellee's counsel, in his argument to the jury in his behalf, used language in violation of the rules of the courts of this state regulating arguments upon the trial of causes, and which language was not supported by the evidence in the case, and that same appealed to the self-interest of the jury as a part of the public, and enlisted in appellee's behalf the public interest, and aroused their prejudices against appellant, and appealed to the jury, upon considerations other than the merits of the case, to return a verdict for appellee. The language complained of by this assignment is as follows: "The public is interested in a matter of this kind. If a man is injured under these circumstances [on a street crossing by backing cars] and gets only partial damages, then the public suffers, and the law is defeated to the extent that he fails to get full compensation. It looks like the railroad company is willing to let this state of affairs go on and fight the cases where they inflict injuries, rather than go to the expense of having a watchman on this street to protect the public. Therefore I say the public is interested in a case like this." Rule 39 of the district courts (67 S. W. xxiii) provides that counsel shall be required to confine the argument strictly to the evidence and to the argument of opposing counsel, and rule 41, for said courts (67 S. W. xxiii) provides that the court will not be required to wait for objections to be made when the rules as to arguments are violated, but, should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection. The argument that the public is interested in a matter of the kind being tried and under consideration by the jury was not warranted by the evidence; and, in connection with the language, "If a man is injured under these circumstances and gets only partial damages, then the public suffers, and the law is defeated to the extent that he fails to get full compensation," was an unauthorized appeal to the self-interest of the jury, and to their duty as good citizens to safeguard and protect the interest of the public by rendering a verdict in a large amount in favor of the plaintiff. The jury are, in effect, told that, if they failed to render a verdict giving the plaintiff full compensation, they would be recreant in their duty, as good citizens, to the public, and that in consequence thereof the public would suffer. It is difficult to imagine a character of appeal that would address itself with greater force to the judgment and conscience of a jury than this. The language, "It looks like the railroad company is willing to let this state of affairs go on and fight the cases where they inflict injuries, rather than go to the expense of having a watchman on this street to protect the public," implies that there were other instances of injuries to persons at the crossing, where plaintiff received his injuries, on account of the failure of defendant to keep a watchman at this crossing, and, notwithstanding this, defendant was willing for such state of affairs to continue, and to litigate the cases brought against it for injuries received at this crossing, rather than go to the expense of putting a watchman there to protect the public. There was no evidence adduced at the trial tending to show that any one other than plaintiff had at any time received any injuries at this crossing through the failure of defendant to have a watchman there. This was a direct appeal to the jury to place the stamp of condemnation on such unfair and unjust dealing and conduct upon the part of defendant towards the public by rendering a verdict in favor of plaintiff in an amount sufficiently large to make it more to the interest of defendant to go to the expense of keeping a watchman at the crossing than that of litigating the suits brought against it for injuries received there. Appellant's bill of exceptions shows that it called the attention of the court below to the language of counsel complained of, and that it duly objected to such language, and the bill of exceptions is properly approved by the judge; and this, in our opinion, is sufficient to properly present the question raised by the objection for revision by this court. It will be assumed that the bill of exceptions states all that occurred, and it appears from the bill of exceptions, as we construe it, that the court did not sustain the objection, but permitted the objectionable argument. St. Louis S. W. Ry. Co. v. Dickens (Tex. Civ. App.) 56 S. W. 124.

In the case of C., R. I. & T. Ry. Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331, the Supreme Court, in speaking of an objectionable argument, uses this language: "Unless it can be said that this error did not prejudice the company, it was in law entitled to have the judgment reversed therefor. The objectionable argument...