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HENDRICKS, J. The appellee, A. J. Jones, sued the appellants, the railway companies, for injuries alleged to have occurred to his wife, Mary Jones, as a passenger, at and near the depot in Dallas, Tex., while in the act of alighting from a train. The ap-pellee and wife were residents of Collin county, Tex., and before the occurrence, charged as negligence, Mrs. Jones had been on a visit to some relatives in Houston county, Tex. She was accompanied by her five children, ranging in age from three to eleven years, and on the return trip, arriving at Dallas, at the Elm street station in that city, her husband was present at the depot to meet her, from which place they continued the journey over an interurban line from Dallas to McKinney.
As the journey proceeded on the interurban to McKinney, Mrs. Jones’ condition developed the preliminary pains of miscarriage,
*718 necessitating, upon arrival at McKinney, an immediate attendance of a physician, and after arrival, within a few hours, the miscarriage became complete. According to opinion testimony, at the time of the miscarriage,' her condition of pregnancy had been of about three months’ duration, and during which time the periodic menstrual flow of Mrs. Jones had continued. A cross-examination of Mrs. Jones developed that, a short time previous to her departure from Houston county for her return to Collin county, she had picked cotton, while visiting one of her relatives, for the period of about a week, necessitating the dragging of a cotton sack between the cotton rows. It was in evidence that she had made admission of a previous miscarriage, of not as severe a character, though,, as the one in question. Her testimony on the stand was that she was not sure that the previous trouble was a miscarriage, and, if so, it occurred about eight years prior to the present injury, and subsequent thereto she had given birth to two children.It was alleged in the petition that upon arrival of the train at Dallas, on account of the train standing upon the crossing at Elm street, the same was uncoupled at the Elm street crossing and the front end of said train was pulled north toward the Union Station, leaving plaintiff’s wife and children in a coach south of the crossing, and that, while she was alighting and on the platform steps of the coach, the front of the train which had been uncoupled backed against the coach on which she was situated with unusual violence, throwing her against the floor and platform thereof as she was descending the steps, causing the injury. The alleged negligence submitted by the trial court as a special issue was:
“Whether or not the train upon which Mrs. Jones was riding' gave a violent and unusual jar, or jerk, while she was attempting' to alight therefrom, * * * caused by reason of the front coach on said train being propelled against the portion of the train upon which she was riding and from which she was attempting to alight.”
The appellant specifically denied the allegation of negligence, and previous to the trial took the depositions of three different women friends of Mrs. Jones, who visited her at her home in McKinney, the testimony in which disclosed statements of Mrs. Jones, without any declarations of any jar or bump of the train causing the particular injury, and which, in its nature, such testimony of said statements is incompatible with the theory of negligence asserted in the petition ; hence the appellee, A. J. Jones, the necessary and only party plaintiff to this suit, was upon notice before the trial of the proffer of a sharp contest of the issue whether or not the bump or jar of the coach, from which Mrs. Jones was alighting, ever actually occurred. The jury found that it did occur, and further found that the miscarriage of appellee’s wife was not.the natural sequence “of her general condition and her acts and habits prior to the time she arrived at Dallas.”
[1] The appellants vigorously assert that the verdict and judgment are against the great preponderance of the evidence, reciting the particulars, according to their theory, to sustain said -position. Two other women friends of Mrs. Jones, who visited her at the home in McKinney while she was sick, testified by deposition on behalf of appellee that Mrs. Jones stated in their presence that the cause of the miscarriage was a jar of the train, causing her to be thrown against a “seat.” Mrs. 1-Iart testified:“She said the car gave a sudden jerk, and that another car ran against it very suddenly, and she was knocked over against the seat, and that she came very near falling after she got up [from the seat], but caught herself.” (The interpolation is ours.)
The testimony of Mrs. Jones was that, upon arrival at the station in Dallas, she saw her husband through the window on the platform of the station, and that all of the children preceded her from the coach in alighting, the little girl, eleven years old, carrying a three year old baby, and assisted by her husband to the platform, and a boy ten years of age carrying a small suit case, and that she was the last to leave the particular coach. She also said:
“I was on the platform, and had started down the steps, a step or two, and the train come back against the coach with such force, full force, and just knocked it winding, and me, .too. It was a hard jerk or knock, and I fell down; it threw me 'up against the baluster like, and struck me in the side, and I fell back on the floor [of the platform]. * * * ”
She further said:
“Nobody helped me down out of the coach [referring evidently to the absence of railway employes]; only my husband took bold of me and helped me down, after I fell and got up; he took hold of me and helped me down himself.”
It is clearly inferable from the situation of the husband, the appellee herein, at the steps of the coach, that such an occurrence, if it happened, was under his direct observation. She testified to two jars, or bumps, of the train — another immediately succeeding the one which knocked her down, but which she withstood.
[2] The little girl, eleven years of age at the time of the alleged occurrence, and twelve at the time of the trial, was one of usual size and intelligence of a child of that age, and the mother testified that she was at home, and she supposed she could come to the trial and testify. It may be, of course, that the position of the child, having preceded. the mother from the coach, was such that she could not see the fall of her mother back upon the platform, if it occurred; but the noise of a jar, such as testified to by the parent, producing such a fall, could have been easily heard, and the jar itself, as an occurrence producing an accompanying fall of her parent, it is reasonable to say, would have been cognizable,, and impressive, to a*719 Ehild of that age. Neither the husband of the injured wife, nor the little girl, were witnesses on the stand at the trial, nor were any justifying circumstances adduced, explaining the absence, or breaking the force arising from the fact, of such withheld testimony. Appellee says:“The argument that plaintiff was present when the car came into Dallas, and did not testify, is without force, because defendant had the same right to use him as a witness as did the plaintiff in his own behalf.”
Such a weak statement to break the force of withheld testimony of a plaintiff actually cognizant of the main controverted fact, and sharply contested as a pivotal issue in the case, by able counsel in this case, reflects a mental - condition of recognition that the absence of such testimony, under the conditions, is hard to explain, and the force of which is perplexing to avoid as a logical inference that plaintiff’s real knowledge of the alleged occurrence would have militated on the stand against his own case. Lord Mansfield said that it is certainly a maxim:
“That all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side% to have contradicted.” Blatch v. Archer, Cowp. 63, 65.
Starkie says:
“The conduct of a party in omitting to produce that evidence in elucidation of the subject-matter in dispute which is within his power, and which rests peculiarly within Ms knowledge, frequently affords occasions for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to Ms prejudice.” Evidence, 54; Jones on Evidence, Blue Book, vol. 1, § 20, pp. 128, 129.
The decisions of the appellate courts of our state in substance announce the same principle. Thompson v. Shannon, 9 Tex. 536; Bailey v. Hicks, 16 Tex. 222; Chandler v. Meckling, 22 Tex. 36-44; Needham v. State, 19 Tex. 332; Insurance Company v. Tillman, 84 Tex. 31, 19 S. W. 294; Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801; Railway Company v. Walker, 38 Tex. Civ. App. 76, 85 S. W. 28.
Dr. Hunter, the physician who administered to Mrs. Jones the night she arrived in McKinney, testified that he had no recollection of any complaint having been made that Mrs. Jones was knocked down On the train. He said, however, that several days after he had treated her (the time not definitely stated) Mr. Jones, the plaintiff, came to his office, and asked him “whether a person falling on a train, it could produce an abortion”; and he told him “it depended upon the condition of the woman and the nature of the injury.”
Appellants’ contention for reversal is that the charge of negligence was fabricated, and stresses, with other circumstances, the inquiry by the plaintiff of Dr. Hunter, as above stated. As a circumstance Of suspicion, it is weakened by the testimony of two of the women who visited Mrs. Jones a short time after the alleged occurrence of statements by her' that she was jerked' against'a “seat.” The five ladies, three for the defendant and two for the plaintiff, who visited Mrs. Jones, are, of course, apparently disinterested witnesses. Two of plaintiff’s witnesses are explicit that Mrs. Jones stated that she was taken sick before ever she arrived in Dallas; one of them testifying, “Mrs. Jones told me she was very sick before she got to Dallas, but did not say anything about experiencing pains; she said she kept getting worse and worse until she got to McKinney;” another stating that Mrs. Jones said, “She took sick on the way, and got very sick before she got to Dallas.” Two of these witnesses said that upon subsequent occasions she further stated that it was the jar and the fall which was the cause of the miscarriage.
Henry Lair, a blacksmith, and a witness for the defendants, testified that, about a week after Mrs. Jones’ miscarriage, Jones, the plaintiff, was in his shop, and upon inquiry by him (Lair) as to the cause of his wife’s condition, Jones stated that he did not know what it was that produced such condition “unless it was dragging a cotton sack.” It is true that plaintiff established the reputation of Lair for truth and veracity as bad, and the credibility of the witness was necessarily weakened. However, the particular fact of Jones’ alleged statement that he did not know the cause of his wife's condition unless it was dragging a cotton sack was unc'ontradicted; and the dragging of a cotton sack, extending over the period of a week, just' prior to her return to Collin county, was an admitted fact. Jones on Evidence says that what a party has said or done at a time when litigation was not thought of, having regard to the circumstances of time, place, and person, should furnish a substantial reason for his defeat when his' case is founded on facts inconsistent with those evidenced by statements to which he has given publication. Volume 2, § 236, bottom of page 358 and top of page 359 (Blue Book). Necessarily a statement of a principle of this character is to be received with caution.
We will not analyze and reproduce the theories derivable from the testimony of the physicians as experts, with reference to the susceptibility of this woman to a miscarriage, or state their opinions, based on different hypotheses, as to what caused the injury; but, after deliberate reflection on the whole record, we think this verdict and judgment should be set aside.
Neither will we- detail the testimony' of other passengers to the effect that, so fax as they knew, no jar or jerk occurred; nor the testimony of the railroad witnesses that the passengers were all discharged from the c'oaches before the train was moved; nor set out the contradictory inferences adduced by plaintiff that the uncoupling of the train could have occurred, and the backing up of same happened, in corroboration of the af
*720 firmative testimony of Mrs. Jones, for tire reason that the nonproduction of the testimony of the little girl, and particularly the withholding and absence of the testimony of the plaintiff, cognizant of the sharply Controverted fact, if it occurred, produces such a persistent and abiding conviction of strong doubt, in connection with other testimony in the case, of the impropriety of this verdict.[3] It is the undoubted duty of this court to interfere and set aside a verdict where we have the conviction that it is wrong and clearly against the preponderance of the evidence. We admit the caution and reluctance of appellate courts in the manifestation of this power as against verdicts upon conflicting evidence. The purpose 'of withholding this testimony of the plaintiff and of the child, of course, is not shown. We impute to learned counsel a knowledge of the force of the principle of presumption, where unexplained there is a withholding of the testimony of witnesses of crucial facts, and in this case of the plaintiff, as we believe it should be imputed to this court, that we are entitled to the belief that the reasons for taking chances before the jury without such testimony is just as much attributable to the fact that the same would have injured very materially plaintiff’s cause, and the accompanying inference that it was thought that the jury would believe against this kind of a defendant the uncorroborated affirmative statement of the wife testifying to the crucial fact, notwithstanding the husband’s and child’s mouths were closed. Though we are unable to find a particular case presenting a sharp analogy to the instant case, we unhesitatingly set aside this verdict. Short v. Kelly, 62 S. W. 914; American National Insurance Co. v. Fulghum, 177 S. W. 1008: Zapp v. Michaelis, 58 Tex. 275; Nowlin v. Hall, 97 Tex. 441, 79 S. W. 806; Kohlberg v. Awbrey & Semple, 167 S. W. 829; Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282.Reversed and remanded.
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Document Info
Docket Number: No. 1000.
Citation Numbers: 187 S.W. 717, 1916 Tex. App. LEXIS 788
Judges: Hendricks
Filed Date: 5/31/1916
Precedential Status: Precedential
Modified Date: 10/19/2024