Missouri, Kansas & Texas Railway Co. v. Gaines , 35 Tex. Civ. App. 257 ( 1904 )

RAINEY, Chief Justice.

This is an action brought by J. C. Gaines as the father and next friend of Bichard Gaines, who is alleged to be a minor, against appellant. Plaintiff alleges that on the 23d day of April, 1902, his said son Bichard purchased a ticket at Bockwall station which entitled him to passage over appellant’s line of railway from Bockwall to Dallas and return; that he went aboard of one of appellant’s trains, and soon after it started the conductor in charge of said train came through the car upon which he was riding, collecting fares and taking up tickets from the passengers on said train, and while so engaged in collecting fares and taking up tickets, said conductor, without cause or provocation, made a violent and malicious assault upon said Bichard Gaines by slapping and beating and bruising him, and that said conductor then and there, in the presence of a great many passengers, used abusive, slanderous and defamatory language to said Bichard Gaines, all of which caused him great physical pain, mental anguish, humiliation and shame; and he prayed for damages in the sum of $10,000.

Appellant answered by general demurrer and denial. On the trial the cause was submitted to a jury, and resulted in a verdict and judgment for the plaintiff for $1000, from which judgment the cause has been appealed and errors assigned.

Conclusions of Fact.—We adopt the testimony of Bichard Gaines as our conclusions of fact. It is as' follows: “I ain the plaintiff in this suit. I got on the train here on the 23d of April, 1902, during the Confederate reunion at Dallas; I was going to Dallas; I remember very distinctly it was Wednesday, and I had a round-trip ticket to Dallas, and a whole lot of us boys that were going down there got on the other side of the train when it came in, as there was a big crowd there to get on, and I got on about the third coach, and all those coaches were full, and there was a conductor at both ends of the train, and I went on through hunting a seat, and when I got to the third coach from the end I saw that the last two coaches were not full, and the conductor came in the back door of the coach and I went in the front door, and went on in there, and Sid King was sitting there and he called me, and I kept walking but had my head turned back looking at Sid King, and this conductor grabbed me and asked me where in the hell I was going, and I told him I was going to' sit down, and he says, ‘Ho, you are not; you are trying to beat the railroad/ and I says ‘Ho, I am not/"and I disputed his word; and he says ‘Where is your ticket?’ and I says, ‘Here it is in my pocket.’ I had it in a little pocket here because I didn’t want to lose it, and I was trying to get it out, and he says ‘Say, hurry up, you little devil, and get your ticket out/ and he kept cursing me, and says ‘God damn, you little kids ride around here and are always trying to beat the railroad;’ and I am not sure whether I called him a liar or not, but I think I did and he says ‘Shut up your head, you little bastard, or I will slap your head off/ and I says ‘Do it/ and he slapped me on the- side of the head, and had his punch in his hand, and knocked me over in a seat, and in about two minutes I came to myself, and I walked out and sat down on the platform and thought I would go and tell my brother, but 1 didn’t do it, because I thought there might be trouble, and I stayed there till I got to Rowlett, and when I got there, there was about thirteen coaches in the train, and I went on up to the front of the car, and when I got up there some boy had told my brother about it, and after I got past Fisher I started back down there and I met my brother coming out of the car with a knife in his hand, and some of them said he had been in there with that conductor, and that he,, the conductor, wouldn’t fight anything. I remember that all this occurred on the 33d day of April, on Wednesday; we had just passed the railroad bridge; Harry’s switch, I guess, is about three miles from Rock-wall. The reason I left the car after the conductor struck me was because I didn’t want to stay in there where he was because I was humiliated and embarrassed by his treatment. I was kind o’ embarrassed; he had hit me and I didn’t want to stay in there; I had a headache all day from being hit by him.

“The lick left the print of his hand on my face, and some of the boys noticed it, and I felt it all day; I didn’t feel like doing anything all that day. When the conductor hit me he knocked me over in the seat, and I didn’t have my senses for about two minutes, and I walked out of the car because I didn’t want to stay in there; some of these other boys wer^ in that coach beside me, and there was about fifteen or twenty -people in there, not a very large crowd; after he hit me I walked on out, and I was going to sit down by that' King boy, but walked past him and walked on out on the platform, and stayed there till we got to Rowlett, and then I went on to the front of the train. I am 17 years old now, and was 16 at the time this occurred; I was not as'large then as I am now. I did not attempt to strike this con ductor, and offered no resistance at all to him, either before or after he struck me; I told him to let me alone, that I was a kid and he was a man; he was a pretty well-made man; I have seen him here, and he was in the courtroom awhile ago when I was sworn. I had a round-trip ticket that day; I bought it from the agent of- the defendant here in Rockwall; I believe I paid a dollar for it.

“At the time of this assault by the conductor I had on short pants; I have been wearing long pants since Christmas; on that day I had on a tight coat, and had put my ticket in this pocket to keep from losing it, and I was getting it and the conductor kept cursing me, and I told him not to, that I was nothing but a kid. There were plenty of seats in those two last cars. After the conductor hit me I rode out on the platform.”

It is insisted that the judgment is excessive. The facts support the verdict, and the judgment is affirmed.

Affirmed.

Writ of error refused.