Texas & New Orleans Railroad v. Marshall , 57 Tex. Civ. App. 538 ( 1909 )

This is a suit by A. W. Marshall against the Texas New Orleans Railroad Company to recover damages in the sum of $995 for alleged mistreatment of plaintiff, while a passenger on one of defendant's passenger trains, by the conductor in charge of the train. The mistreatment consisted in rough and insulting language alleged to have been used by the conductor to plaintiff in taking up his ticket which, by mistake of the agent who sold the ticket, was not the kind of a ticket plaintiff should have had to entitle him to a passage. The conductor accepted the ticket, but it is alleged that he used towards plaintiff discourteous, rough and insulting language in doing so. A trial with the assistance of a jury resulted in a verdict and judgment for plaintiff for $995, the full amount claimed, from which defendant appeals.

Over seasonable and proper objections by appellant the court allowed appellee to testify that after the dispute between himself and the conductor was ended and about the time the conductor stepped away, a fellow passenger, who had heard the language used by the conductor, said to witness: "It is a shame for a man to have to take anything like that; you ought to have gotten up and slapped him." To the admission of this evidence appellant took a bill of exceptions and the question of the admissibility of the evidence is presented by the first assignment of error.

The evidence was clearly inadmissible. It was nothing more nor less than the opinion of a passenger, a stranger to the occurrence, as to the conduct of the conductor. The testimony does not come within the exception with regard to admission of testimony of acts done or words spoken as part of the res gestae. (Missouri Pac. Ry. v. Ivy, 71 Tex. 417; Dwyer v. Continental Ins. Co.,63 Tex. 356; Texas N. O. R. R. Co. v. Bellar, 51 Texas Civ. App. 154[51 Tex. Civ. App. 154].) This testimony must have had great influence with the jury, and is probably the cause, in part, of the extraordinary size of the verdict.

The testimony of the witness Smith, referred to in the second assignment of error, was inadmissible. If a witness under examination makes a statement about an entirely immaterial matter it is not admissible, for the purpose of impeaching him, to show that such testimony is not true. The testimony did not tend to show that the conductor was drunk at the time of the occurrence in question. The second assignment of error presenting the point must be sustained. (Texas P. Ry. Co. v. Phillips, 91 Tex. 278.)

There was no error in the charge complained of in the third assignment of error. The assignment is overruled.

The court did not err in refusing to give the charge referred to in the fourth assignment of error. No question is made of the right of the conductor to question the ticket produced by appellee, but complaint is made of the rude and insulting way in which he is alleged to have acted.

The fifth and sixth assignments of error are overruled without discussion.

The seventh assignment of error complains of the verdict as excessive and must be sustained. If there were no other errors requiring a reversal this could be cured by proper remittitur, and would not require a remand of the cause.

We are not prepared to say that as a matter of law the evidence for plaintiff does not authorize a recovery of any amount as damages, as contended by appellant in the eighth assignment.

It was error to instruct the jury that it was "the duty of the defendant company to furnish courteous employes." No case is presented by the pleadings or evidence against appellant in this regard.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.