Texas & N. O. R. Co. v. Stephens

• Decision Date: 27 October 1917
• Docket Number: (No. 258.)
• Parties: TEXAS & N. O. R. CO. v. STEPHENS.
• Court: Texas Court of Appeals

198 S.W. 396

TEXAS & N. O. R. CO. v. STEPHENS.

(No. 258.)

Court of Civil Appeals of Texas.

October 27, 1917.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Action by C. Stephens against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Orgain, Butler & Bolinger, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. H. E. Marshall, D. J. Harrison, and W. T. Norman, all of Liberty, and John M. Conley, of Beaumont, for appellee.

BROOKE, J.

This suit was begun by the filing of plaintiff's original petition in the district court of Liberty county, Tex., Ninth judicial district, on May 10, 1916. Liberty county being also in the Seventy-Fifth judicial district, the cause was transferred from the Ninth to the Seventy-Fifth district court, and tried in the latter court, beginning on December 1, 1916.

Plaintiff brought this suit against the Texas & New Orleans Railroad Company for injuries to his wife, alleging that he and she were residents of Harris county, Tex., and that on May 4, 1916, plaintiff's wife boarded a certain passenger train operated by the defendant company, at Houston, and became a passenger thereon for Liberty, Tex. On November 29, 1916, plaintiff filed a second amended original petition, on which trial was had. Plaintiff alleged that the train on which his wife, Marcenia Stephens, took passage for Liberty, Tex., arrived at Liberty about 8:30 a. m. on May 4, 1916; that shortly before said train arrived at Liberty, one of defendant's agents in charge of said train came through the car in which plaintiff's wife was riding, and announced that Liberty was the next stop; that when such announcement was made, plaintiff's wife, as the train came to a stop at the depot at Liberty, picked up her various bundles and arose to her feet in the aisle in the car in which she was riding, and started toward the door of the car, for the purpose of leaving the train; that, thereupon, without warning to plaintiff's wife, and without any knowledge of plaintiff's wife, said train was caused to give a certain lurch or jerk, which caused plaintiff's wife to be thrown from her feet in the aisle of the car against one of the seats, and from the seat to the floor, with great violence, and also caused plaintiff's wife to fall upon a bundle which she was carrying in her hands while attempting to leave the train; that thereby plaintiff's wife's stomach, abdomen, and side were bruised, and the muscles of her back, thighs, hips, shoulders, and arms were strained and bruised; that she was also frightened, and caused to suffer great physical pain; that she was removed from the train and taken to her daughter's house, a short distance from Liberty, where she was confined to her bed and under the treatment of a doctor for about 12 days, and that during said time she suffered great physical pain and mental anguish, and that since said time she continuously suffers great physical pain. Plaintiff further alleged that by said fall and injury his wife was caused to have a miscarriage, she being pregnant at the time she received said injury and fall; that in connection with said miscarriage, plaintiff's wife suffered most intense and excruciating physical pain and mental anguish; that since such miscarriage she had continuously suffered with headaches, with soreness and pains from injuries to her stomach, abdomen, shoulders, neck, back, limbs, and pelvic organs, and an injury to the female organs, known as the "uteris," and also an injury to the female organs, which injury is known as granular condition of the "crevix." Plaintiff further alleged that his wife's injuries were permanent, and that her health had been permanently impaired on account thereof, and that she would continue to suffer physical pain in the future; that prior to said injuries his wife was a stout, healthy, and robust woman, but that since such accident she had become a permanent invalid, and was continuously under the treatment of a doctor; also that such injuries were caused directly and proximately by the carelessness and negligence of defendant's agents and servants in causing said train to give a certain jerk or lurch, without warning to plaintiff's wife, and without the knowledge of plaintiff's wife. Damages were alleged in the sum of $10,000.

Defendant answered on May 25, 1916, by general demurrer and general denial, and thereafter, on November 29, 1916, filed its first amended original answer. After a general denial and general demurrer, defendant answered that if plaintiff's wife was injured in any manner or to any extent while a passenger on the train in question, that such injuries were directly and proximately caused by negligence on the part of plaintiff's wife, in that she arose from her seat before the train came to a full stop at the station of Liberty, and attempted to walk down the aisle of the car in which she was riding, and to the door, while the train was still in motion, and thereby she failed to use proper care and caution for her own protection and safety, and such actions on her part were the direct and proximate cause of her injuries, and that, therefore, defendant was not liable. Defendant further answered that if plaintiff's wife was injured in any manner, or to any extent, while a passenger on defendant's train at the time and place stated, which was denied, that any such injury she received at such time and place was trivial, and of no consequence, and that no serious result would have followed such injuries if she had not imprudently, carelessly, and negligently failed to properly care for herself after reaching Liberty on the occasion in question; that when plaintiff's wife reached Liberty and arrived at her daughter's home she imprudently carried several of her grandchildren in her arms, thereby fatiguing herself physically, and exciting herself mentally; that if it was true that plaintiff's wife was with child at that time, and that thereafter she suffered a miscarriage, that such result was brought about and caused by her carelessness and negligence in carrying and nursing her grandchildren, and working herself up into a state of excitement, and that in so doing she failed to use due and proper care, and was guilty of contributory negligence, which directly and proximately caused such miscarriage, and that defendant was not liable therefor.

The case was tried before the court with the assistance of a jury, and was submitted to the jury on certain special issues. In connection with the special issues submitted, the court charged the jury as to the liability of the railroad company toward their passengers, to the effect that it was the duty of a railroad company to exercise toward its passengers that high degree of care to avoid accidents or injury which a very careful and prudent person would use under similar or like circumstances, and that the failure to do so was negligence, but that railroad companies are not insurers of the safety of their passengers. The court further charged the jury on contributory negligence, defining same as such an act or omission on the part of the person injured, amounting to the want of ordinary care and prudence, which concuring or co-operating with some negligent act of the defendant, becomes a proximate cause of the injury complained of, but for which negligence the injury would not have occurred.

The court also properly charged the jury on the burden of proof, both as to primary and contributory negligence, and defined preponderance of the evidence. At the request of the defendant, the court also defined proximate cause in connection with the special charges submitted, and at the request of the defendant instructed the jury that if the jury believed that the miscarriage complained of, if any, was produced or brought about by the conduct of plaintiff's wife in handling or nursing her grandchildren, together with such injury as she may have sustained on the train, and that if her conduct in handling such grandchildren was contributory negligence, as defined in the court's charge, that the jury should not allow plaintiff anything as damages for any injuries that resulted to his wife in consequence of such miscarriage.

The first special issue submitted by the court to the jury was whether or not the train was caused to give a certain jerk or lurch, as alleged in plaintiff's petition. To this the jury answered in the affirmative. The second special issue submitted by the court to the jury was whether or not defendant's agents were guilty of negligence in causing the train to give such sudden jerk or lurch. This the jury answered in the affirmative. The jury assessed the amount of damages in the sum of $5,000, on which verdict judgment was duly entered in favor of plaintiff, and against defendant in the sum of $5,000. On December 2, 1916, defendant filed its original motion for new trial, and on December 14, 1916, its first amended motion for new trial, said motion on the same day being overruled by the court, defendant excepting and giving notice of appeal. On February 9, 1917, defendant filed its application for writ of error; also its writ of error and supersedeas bond.

The first assignment of error challenges the action of the court in permitting plaintiff to offer in evidence on the trial hereof the answer of plaintiff's witness, Dr. C. C. Nash, to interrogatory No. 9, propounded by plaintiff to said witness, as contained in the deposition of said witness, said answer reading as follows:

"The said Mrs. Stephens did give me a history of her case; that she had been in perfect health for some 8 or 10 years, and had missed her monthly period before the accident something like 3 or 4 months, and since her injury her monthlies are regular, but suffers with more or less pain in her hips, back, and lower abdomen."

Plaintiff in error claims that the answer of said witness Nash was...