Missouri Pacific Railway Co. v. Aiken , 71 Tex. 373 ( 1888 )

Gaines, Associate Justice.

This suit was brought by appellee against appellant to recover damages for a personal injury.

The petition was filed on the fifteenth day of September, 1887, and the case was called for trial on the thirtieth day of the next November, when an application for a continuance for the want of testimony was made on behalf of the appellant, and was overruled by the court. It is assigned that the action of the court was error. But we think not. Upon the first application for a continuance it must not only be stated that due diligence has been used to procure the attendance or deposition of the witness, but the diligence used must be set forth. (Rev. Stats., art. 1277.) As to one Farlow, who is alleged to be a material witness, it is stated that he was a brakeman in charge of the car which collided with that upon which plaintiff was traveling at the time he was injured, and that 6<he voluntarily left the service of the defendant since the time of said injury, and his residence has not been ascertained up to the present time, though affiant and defendant’s employes have sought the information.” The court is not told at what particular time the witness left the defendant’s employment, nor what step& had been taken to ascertain his residence. Without a know!edge of these facts, it could not say that due diligence had been used.

Another witness for whom the continuance was sought was one Lafton, who resided in Columbia, Tennessee. The application alleges that his residence and the materiality of his testimony was not ascertained until six or seven days before the trial. This witness was in the employment of the plaintiff at the time of the injury, and was on the train with him, and continued on the train in charge of the live stock belonging to plaintiff, which was being transported by it. What steps were taken to ascertain what he knew about the case, or where he lived, are not stated. Besides this, what was expected to be proven by this witness is set out, and it does not seem to us to be material testimony in the case. The contract adduced in evidence upon the trial shows that the plaintiff had the right of passage on the train upon which his stock was being conveyed, and we are of opinion that if he did insist upon a right of free transportation for his own employe, and refused to pay his fare, this did not deprive him of his privilege under the contract and make him a trespasser upon the cars. The application also states that defendant could not obtain the names of the conductor and brakeman of the train upon which the accident occurred, but again fails to state what steps had been taken to ascertain them.

These persons being employes of the defendant it seems to-us that by ordinary diligence their names and residences could have been ascertained, and in the absence of a statement showing what diligence was used to procure their testimony, the application is insufficient. The defendant also claimed surprise and asked for the continuance partly for an opportunity to obtain testimony to meet new allegations set up in an. amended petition filed but a short time before the trial. But in order to avoid a continuance upon this ground, plaintiff formally abandoned the new matter alleged in his petition. The application for the continuance, though a first one, should have stated the facts constituting the diligence, and not the mere legal conclusion that diligence had been used, and on account of the defect in this particular it was properly overruled:

It is also complained that “the court erred in charging the jury as follows: ‘If plaintiff was riding upon a car controlled by defendant or its servants, and was being transported by defendant, under a contract which has been read to you, then he was a passenger;’ and in failing to charge that if the contract .was for the carriage of only one person, and plaintiff caused and directed his employe to ride in said car to attend to the stock, and refused to pay his own fare or that of his employe, that he, Aiken, was not legally a passenger, nor entitled to all the rights of a passenger, but to the rights of a trespasser only.”

The plaintiff, when he received the injury, was accompanying as owner a car load of live stock, which was being carried under a contract which stipulated <fthat the owner and shipper, or his agent or agents in charge of said stock, shall ride upon the freight train upon which the stock is being transported.” The plaintiff had with Mm an employe to assist in taking care of the animals. He testified that between Columbia, Tennessee, and Little Rock, Arkansas, where he was injured, a conductor came into the stock car where he and his employe were riding, and asked what they were riding in that car for—that the contract only allowed one free passage; that he told the conductor that he was the person who hired the car, and that he could put off the employe if he had no right there; but that the conductor left without taking any further action in the matter. And this was all the testimony upon this point.

It is now contended that, because the plaintiff had a right of free passage for one only, and two were riding on the car without the payment of fare, he lost his rights as a passenger and was to be deemed a trespasser on the train. But such is not our opinion. According to the terms of the contract the plaintiff, as owner and shipper, had the right of passage on the car; and even if his employe should be deemed a trespasser, we do not see that this would deprive him of his own privilege of free transportation. But after the conductor ascertained that two persons were riding on the car and was told to put off the employe if he had no right there, and failed to do so, we do not think either could be considered as a trespasser. We Conclude that the court did not err in its construction of the contract, and in instructing the jury that, if the plaintiff was traveling* on the car in pursuance of its terms, he was a passenger.

It is claimed that the damages awarded by the jury are excessive. The plaintiff was sixty-two years old. He had three of his ribs broken, his side bruised, and was rendered insensible for a time by the concussion. At the time of the trial he had partially recovered, and did not suffer great pain, although, as he testified, his appetite and general health were to some extent impaired. For a considerable length of time after the injury, as he stated in his testimony, his physical and mental sufferings were great. One physician was examined at the trial who thought he was nearly well, and that his recovery would be complete. Another testified by deposition and said he had examined the plaintiff and doubted if he would ever recover. He thought it likely that his favorable symptoms were delusive, and that it was not improbable that paralysis would ensue. Under these circumstances we can not say that the verdict of the jury was so clearly excessive as to require a reversal of the judgment.

The fifth assignment, that “the court erred in overruling defendant’s motion for a new trial,” is too general to admit of consideration.

There is no error in the judgment, and it is affirmed.

Affirmed.

Opinion delivered October 12, 1888.