Texas & P. Ry. Co. v. Cornelius

• Decision Date: 19 March 1895
• Citation: 30 S.W. 720
• Parties: TEXAS & P. RY. CO. v. CORNELIUS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 720

TEXAS & P. RY. CO. v. CORNELIUS.¹

Court of Civil Appeals of Texas.

March 19, 1895.

Appeal from district court, Taylor county; T. H. Connor, Judge.

Action by A. L. Cornelius against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

B. G. Bidwell, for appellant. Cockrell & Cockrell, for appellee.

Conclusions of Fact.

TARLTON, C. J.

On the night of November 2, 1892, N. J. Cornelius, the wife of appellee, was, with her child 13 months old, at Pecos, Tex., a station on the line of the appellant's road. She desired to take passage on defendant's east-bound passenger train, and to go first to Trent station, thence to Abilene, Tex. (at each of which places, also stations on the defendant's line, she wished to visit relatives), and thence to her home, in Dallas county. With this view she went with her child to the passenger depot of the appellant at Pecos about three-quarters of an hour before the time advertised for the departure of its east-bound train. The hour thus advertised was 12:27 a. m. The night was cold, wet, and dark. About half an hour after she reached the depot, Mrs. Cornelius bought a ticket for Trent station, paying the proper fare. The agent did not then inform her that the train was late, but when it became due he told her that it was an hour or two behind its time. About 10 minutes after Mrs. Cornelius arrived, a fire was built in the passenger room, which, however, was permitted to "die out" about 12 o'clock. The room thereupon became very cold and chilly. In the meantime the lady, who was expecting the train, waited in the passenger room. About 1 o'clock, a. m. she went to the room of the agent, knocked at the door, called his attention to the fact that the room was very cold, and requested him to have a fire built. He did not reply, but failed to comply with the request, though he heard it. After waiting an hour or more longer, Mrs. Cornelius again went to the agent's window, requesting him to give her some matches, that she might build a fire, unless he would himself cause one to be made. No reply was made to this request. The west-bound passenger train arrived about 3:30 o'clock a. m. About 10 minutes before its arrival a fire was built in the room. Mrs. Cornelius still remained waiting for the east-bound passenger train until 4:30 in the morning, when the agent who sold the ticket to her informed her that the train was 11 hours late. Thereupon a gentleman showed her to a hotel, where she went with her child. She remained without fire in the passenger room from 12 o'clock until 3 o'clock. During this time the door on the south side of the room could not be closed, because it was off its hinges. From the negligent failure of the appellant's agent to keep the room properly heated, Mrs. Cornelius and her child were thoroughly chilled, and as a result they became seriously sick. On account of this negligence the plaintiff brought this suit to recover damages (1) for the loss of the services of his wife during the time of her sickness, and consequent inability to labor; (2) for the mental and physical pain of his wife proximately resulting from her sickness; (3) for the reasonably necessary expenses incurred for the services of a physician and for medicines required for his wife and child, as a result of the injuries. The trial resulted in a verdict and judgment for $1,300, and hence this appeal.

Opinion.

The overruling of the first special exception, complained of by appellant, is approved by us. The exception is as follows: "The plaintiff does not show or aver any fact which entitles him to recover for any suffering or injury done his child. He does not aver that any sum or amount was paid by him for the benefit of the child, and all the averments in plaintiff's petition in reference to the child are improper, as tending to influence a jury improperly." We cannot hold the allegations of the petition showing the sickness of the mother and child, as a result of the defendant's negligence, to be improper. If so, this exception does not point out what averments are so. While the plaintiff did not aver that any amount was paid by him for the benefit of the child, he did allege that, "by reason of the sickness of his wife and child, plaintiff was compelled to incur great expense for medical services, to wit, the sum of $50, and for medicines $25." If he incurred expenses in caring for the child, this was sufficient to entitle him to recover for these expenses, without alleging an actual payment before bringing the suit. He was not permitted to recover for injury or damage to the child, because the jury were expressly instructed that "they would not consider injury or suffering by the child, and that on account of the child the plaintiff could only recover, if at all, the expense of the physician's services and medicines necessarily incurred by reason of its injuries."

To shield itself from liability under the facts of this case, the appellant invokes the provisions of the act of March 6, 1891 (article 4238, Sayles' Supp.), which reads as follows: "Every railroad company doing business in this state shall keep its depots or passenger houses in this state, lighted and warmed, and open to the ingress and egress of all passengers who are entitled to go therein, for a time not less than one hour before the arrival and after the departure of all trains carrying passengers on such railroad, and every such railroad company for each failure or refusal to comply with the provisions of this act, shall forfeit and pay to the state of Texas, the sum of fifty dollars, which may be sued for and recovered in the name of the state in any court of competent jurisdiction and shall be liable to the party injured, for all damages by reason of such failure." Under its interpretation of the terms of the article, the appellant requested a special instruction, the refusal of which, in connection with the charge given by the court on the subject indicated, is assigned as error. The special instruction is as follows: "If the jury believe from the evidence that plaintiff's wife went to the defendant's passenger depot at Pecos, Texas, on the night of the 2d of November, 1892, as averred by him, for the purpose of becoming a passenger on the defendant's east-bound...