Texas & P. Ry. Co. v. Rea.

• Decision Date: 07 December 1901
• Citation: 65 S.W. 1115
• Parties: TEXAS & P. RY. CO. v. REA.
• Court: Texas Court of Appeals

65 S.W. 1115

TEXAS & P. RY. CO. v. REA.

Court of Civil Appeals of Texas.

December 7, 1901.

Appeal from district court, Van Zandt county; J. G. Russell, Judge.

Action by F. H. Rea against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Cate, Geddis & Bruce, for appellant. Kearby & Kearby and J. A. Germany, for appellee.

RAINEY, C. J.

Appellee sued to recover damages for personal injuries to appellee's wife alleged to have resulted from the failure of appellant to furnish her with a seat while traveling on appellant's train as a passenger from Dallas to Grand Saline. The evidence shows that appellee held tickets for himself and wife entitling them to passage over appellant's road from Dallas to Grand Saline, a distance of about 65 miles. Plaintiff and wife were traveling in company with his brother, R. N. Rea, and wife, and their three children. In boarding the train at Dallas they became separated. Mrs. Rea took charge of the two year old child of her brother-in-law, R. N. Rea, and R. N. Rea and wife entered a different coach from plaintiff and wife and the two year old child. The train was crowded. The car was cold, and no seat was to be had, and Mrs. Rea stood up the entire distance holding in her arm the two year old child, from all of which it is claimed the injuries resulted.

The second assignment of error complains of remarks made by plaintiff's counsel in his closing argument to the jury, viz.: "Geddis tells about that fellow Parks. He wants you to believe him over all those other witnesses; that cow coroner up there; that fellow that chases all around over the country settling for cows they have killed and crippled. I know the jury ain't going to believe him. Monch Spikes knows what kind of a cat he is. Monch Spikes has had cattle and stock killed. He has had dealings with this cow coroner, and I know he won't believe him." The witness Parks, referred to, was appellant's stock claim agent. Monch Spikes was a member of the jury, and signed the verdict as foreman. Exceptions to said remarks were duly made at the time, but there is nothing in the record to show that the trial court attempted to counteract the effects thereof. The remarks were improper, as it was an appeal to the prejudice of one of the jurors, at least, to consider matters not connected with the case, and was calculated to improperly influence the jury in considering the testimony of Parks.

Appellant requested a charge to the effect that, if plaintiff and wife discovered, before the train left Dallas, that the car which they entered was cold and crowded, and that the wife could not get a seat, and that if defendant ran other and extra trains which was known to plaintiff and wife, or could have been known by the use of reasonable diligence, then plaintiff and wife would be guilty of contributory negligence, and could not recover for the injury to the wife which was the proximate result of her not being able to obtain a seat. The evidence shows that the car was cold and crowded, and that the wife could not get a seat; that defendant did run an extra train; but plaintiff and wife testify that they knew nothing of the extra train. The travel over the road was great at that season, and it is not shown that by waiting a seat would have been furnished on the extra or other train. The charge assumes that, had the facts therein enumerated existed, plaintiff and wife would be guilty of contributory negligence. We are of the opinion that the trial court would not have been justified in charging as a matter of law from the facts enumerated in the charge that they were guilty of contributory negligence. Whether or not the facts existed, and if they existed, it was for the jury to determine from the evidence whether or not they were guilty of contributory negligence. The court did not err in refusing to give the charge.

Error is urged by appellant in the court refusing the following charge, to wit: "It is the duty of any person who is placed in danger of injury by the negligence of another to use ordinary care to avoid anything that may threaten to increase the danger or aggravate the injury. Therefore, if you find from the evidence that when plaintiff and his wife boarded the cars at Dallas to take passage to Grand Saline, and became aware that plaintiff's wife could not obtain a seat, and that she would have to stand up in the car and hold in her arms a child not her own, and you further find that a person of ordinary prudence and care would have abandoned the train under the circumstances; or if you find that a person of ordinary prudence and care, situated as plaintiff's wife was at the time, would not have held the child in her arms; or if you find that a person of ordinary prudence and care, situated as plaintiff was at the time, would have relieved his wife of the burden of said child; and that plaintiff or his wife, both or either of...