Texas & P. Ry. Co. v. Perkins

• Decision Date: 15 April 1926
• Docket Number: (No. 338.)
• Citation: 284 S.W. 683
• Parties: TEXAS & P. RY. CO. v. PERKINS.
• Court: Texas Court of Appeals

284 S.W. 683

TEXAS & P. RY. CO. v. PERKINS.

(No. 338.)

Court of Civil Appeals of Texas. Waco.

April 15, 1926.

Rehearing Denied May 20, 1926.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by Mrs. Nannie Perkins against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thompson, Barwise & Wharton and F. B. Walker, all of Fort Worth, for appellant.

Houtchens & Clark, of Fort Worth, for appellee.

GALLAGHER, C. J.

This is an appeal from a judgment for damages for personal injuries recovered by Mrs. Nannie Perkins, appellee herein, against Texas & Pacific Railway Company, appellant herein. The parties will be designated as in the trial court. The suit was originally against J. L. Lancaster and Chas. L. Wallace as receivers of said railroad, but, upon their discharge, the railroad company was also made a party defendant. The facts necessary to an understanding of the points discussed will be stated in the proper connection. There was a trial before a jury, a verdict in response to special issues and judgment in favor of the plaintiff against the defendant railway company for $10,000, and against the plaintiff in favor of the other defendants.

The first group of points consists of four several propositions. These propositions present for consideration as grounds for reversal the refusal of the court to give a peremptory charge in favor of the railway company, and assail the findings of the jury on the issues of negligence, proximate cause, and contributory negligence as being without support in the evidence, and contrary to the great preponderance thereof. We have carefully examined the facts in evidence. A recital of the same would not be of any precedential value. We are of the opinion that the findings complained of are sufficiently supported by the evidence, and that the court did not err in refusing to give a peremptory instruction to find for said defendant.

The second group of points consists of six several propositions. These propositions present as grounds for reversal the action of the court in refusing to submit certain special issues duly requested by the defendant, and in the alternative complain of the failure of the court to submit in some proper form issues involving the facts inquired about in said requested issues.

The plaintiff, Mrs. Nannie Perkins, testified that she was 61 years old, and a widow; that she resided in Fort Worth with a married daughter; that she left home on December 23, 1923, on a trip to El Paso over said railroad; that she stopped at Colorado City to visit a daughter, resuming her journey to El Paso about midnight on December 26th; that about 6:30 next morning several coaches in the train on which she was traveling were derailed a few miles west of Toyah; that the coach in which she was riding was among those derailed; and that it was tilted to one side so that there was apparent danger of its turning over; that she was ordered to get out of the car by the conductor, and that she did so; that she asked him several times if she could get back into the coach, and he advised her not to do so, stating that it was liable to turn over; that he finally stated he guessed she could get back into the coach, and that she then did so; that she remained out of the train and on the ground for several hours, and suffered severely from cold; that about 2 or 3 o'clock in the afternoon she was instructed to get into a Pullman at the rear of the train and go back to Toyah; that she did do so, and was taken back to that station; that she got off the coach at the depot; that she found no fire in the waiting room, and found it warmer on the sunny side of the depot, and stayed there until about 5 o'clock, when she was told to get on the train; that she did get on the train and proceed thereon to El Paso; that she was thoroughly chilled all day; and that she remained chilled all the way to El Paso. There was evidence corroborating her to some extent with reference to the condition of the weather during the day of the wreck, and also evidence tending to show that the weather on that day was mild, and that other women stayed out of the coaches at the scene of the wreck during practically the whole time without suffering any discomfort. Mrs. Perkins further testified that before she started on said trip she was in fine health, and did not have any cold whatever; that when she arrived at El Paso she went to bed; that she had chills and fevers continuously for about 6 weeks, and suffered almost continuously from rigors, requiring hot irons to her feet when she was in bed, and requiring her to be wrapped in blankets when she attempted to sit up; that at first the pain and cold in her chest were so severe that she thought she had contracted pneumonia; that she did develop bronchitis and cystitis; and that both of said ailments had become chronic, and had been continuously, and were at the time of the trial, attended with headaches and frequent temperatures; that she had become greatly emaciated, had lost both energy and strength, and suffered severe pain almost continuously; that none of said conditions existed before she suffered such exposure on the day of said wreck; and that they began to develop immediately after such exposure.

The jury, in response to special issues submitted by the court of his own motion, found: (a) That the plaintiff became chilled and cold on the occasion of the derailment of said train while she was waiting for the defendant to complete her transportation to El Paso; (b) that she suffered substantial injury therefrom; (c) that the defendant through its agents and employés ordered the plaintiff to get off of said train; (d) that the defendant did not provide plaintiff a place for her to remain where her health would not be endangered while waiting for repairs to the track to be made; (e) that such failure was negligence; (f) that such negligence was the proximate cause of her injuries.

The court, at the request of defendant, submitted certain special issues, among which were the following, which were answered as indicated:

"(19) Did the plaintiff get off the train at or near Toyah, Tex., on the occasion in question? Answer: Yes."

"(25) Did the plaintiff get out of the car where she was riding at the time of the wreck in question? Answer: Yes."

"(26) Could the plaintiff have returned to said car after getting out? Answer: No."

"(15) Was the plaintiff injured as a result of getting cold while out of the cars at or near Toyah, Tex., on the occasion in question? Answer: Yes."

"(16) Was such cold caused by reason of the plaintiff's being outside of the cars on the occasion in question? Answer: Yes."

"(24) Did the plaintiff sustain her injuries solely as a result of getting off the car? Answer: Yes."

The several special issues so requested by defendant and refused by the court were as follows:

"(a) Were the plaintiff's injuries, if any, occasioned solely by riding in and around Colorado City, Tex.? Answer `Yes' or `No.'

"(b) Were the conditions of health of which plaintiff complains herein existing at and prior to the time of the alleged wreck in this case? Answer `Yes' or `No.'

"(c) Were the plaintiff's injuries if any, occasioned solely by reason of the usual incidents of a trip by rail from Fort Worth, Tex., to El Paso, Tex.? Answer `Yes' or `No.'

"(d) Were plaintiff's injuries, if any she received, caused solely by reason of her physical condition at the time she made the trip from Fort Worth to El Paso, Tex.? Answer `Yes' or `No.'

The plaintiff contends that the action of the court in refusing to submit said issues was proper, and should be sustained on the ground that none of said issues were raised by the pleadings or evidence, and on the further ground that the same, and all the same, were covered by the main charge and by the special issues bearing on the matters involved which the court submitted at the request of the defendant, as hereinabove set out.

The plaintiff alleged that she was in good health when she started on said trip; that she stopped at Colorado City and resumed her journey some 36 hours later from there. Her petition contains no allegation concerning how or where she spent the time while at Colorado City. She set out the facts concerning the wreck and her exposure and suffering in connection therewith and the completion of her journey to El Paso. She attributed all the injuries complained of to her exposure at the time of the wreck. Defendant answered these allegations by a general denial and by a special plea denying negligence, and further denying that the injuries complained of by plaintiff were the proximate result of any negligence on its part. Plaintiff testified that she was in good health at the time she began said journey; that she was comfortable all the way from Fort Worth to Colorado City; that she visited in Colorado City, and also made a visit in the country about eight miles from there, going to and for in a Ford car. She denied any discomfort or exposure during any part of her stay in Colorado City and also during any part of her journey from Fort Worth to El Paso, except during the time she was delayed by said wreck. She was corroborated by other witnesses concerning her state of health when she started on the trip. No other witness testified to any incidents of the trip from the time she left Fort Worth until she arrived at El Paso, except as to her situation and actions and the conditions existing during the delay caused by the wreck. The defendant proved by Dr. Sheddan, a witness for plaintiff, in substance, that a person catches cold when the pores of the skin are open, not when he is cold, but when he is hot and then gets cold; that whether a person who has been in a warm coach all night and gets out in a higher altitude would take cold would depend on atmospheric conditions, the humidic condition of the atmosphere when he stepped out; that ...