Missouri, Kansas & Texas Railway Co. v. Morgan , 49 Tex. Civ. App. 212 ( 1908 )

This is a suit by the appellees, J. P. Morgan and wife, Mrs. Anna Morgan, to recover damages on account of injuries sustained by the latter while a passenger on one of appellant's trains. Verdict and judgment were in appellees' favor for $4,000.

It appears from the facts that Mrs. Morgan, about a year prior to the time that the injuries are claimed to have been sustained in this case, was treated at Temple, Texas, for womb trouble, or womb disease. A short time prior to the time she is alleged to have been injured she again left her home at Burleson, the second station south of Ft. Worth on appellant's road, and returned to Temple, Texas, for treatment for the same disease under the same physicians by whom she had been formerly treated. She remained there for some time under the treatment of these physicians, and was discharged as apparently cured. She and her sister procured tickets at Temple, Texas, over the line of appellant's road to Burleson, Texas; and by the aid of some of the train crew at Temple, Texas, she was assisted on board of appellant's passenger train bound for Burleson, her home. A short time before the train reached Burleson, she spoke to the auditor, the officer in charge of the train who collected the fares and tickets, and who performed some of the duties and functions usually resting upon a conductor, that she desired to get off at Burleson, and would need assistance in so doing, and substantially told him that she was not well. The auditor proffered his assistance and told her that Burleson would be the second station reached.

She alleges, and so testifies, that prior to the train's reaching Burleson, she was not again approached by the auditor, nor was the station Burleson announced or called, and that she did not know that Burleson had been reached until after the train had passed that place. Then she called the auditor's attention to that fact and the auditor explained what he understood to be the mistake, and furnished her money with which to pay her hotel expenses at Ft. Worth, and an amount necessary to pay the expenses of her return trip from Ft. Worth to Burleson. She was carried on to Ft. Worth, and when that point was reached the auditor requested a transfer man to take her and her sister to a hotel, and she was carried to the hotel in a conveyance, where she remained until the next morning, and took the train back to Burleson, and reached there some time the next morning.

It is alleged as negligence that the auditor and the servants in charge of the train failed to call the station Burleson when passing, and that they negligently carried her by, knowing that she was destined to that point, and that the train did not stop a sufficient length of time at Burleson in order to permit her to alight.

Mrs. Morgan testified that she did not know when she reached Burleson, but was depending upon the auditor and also upon someone calling the station when that place was reached. While she was going from the train through the depot at Ft. Worth to take the conveyance to carry her to the hotel, her foot came in contact with some obstruction in the building; and it further appears that the next morning in leaving the hotel to return to the depot in order to take the train, in getting into the conveyance she got her feet wet; and that after she got back to Burleson she had to go from the depot to her home in an open conveyance, her home being located some distance from the depot. That by reason of these facts and the exposure to bad and rainy weather, which was then existing, she suffered a relapse of her womb trouble, which there is evidence tending to show is of a serious and permanent nature. It also appears that there was some mental prostration and suffering by reason of the fact of her being carried by Burleson.

There is evidence upon the part of the Railway Company that the station Burleson was properly announced before the train reached that place.

Appellant's first and second assignments of error are to the effect that the court erred in refusing to give its special charges Nos. 9 and 20, which are peremptory instructions to find for the defendant, because the injuries and exposure to which the plaintiff was subjected could not have been reasonably anticipated and foreseen as the natural and probable result of being carried by the station Burleson. The court did, in a general way, instruct the jury that the plaintiff could only recover in the event that the negligence of the Railway Company was the proximate cause of the injuries sustained; and in the latter part of the 14th subdivision of the charge there is an instruction to the effect to find for defendant, if the acts and conduct of Mrs. Morgan at Ft. Worth could not have been foreseen as the natural and probable result of being carried by Burleson. It was an issue of fact as to what was or likely would be the natural or probable result of appellant's negligence in carrying her by her station; and the conditions and circumstances then existing should be considered by the jury upon that subject, and it would have been improper to have taken that question away from them by the peremptory instruction requested. Furthermore, these instructions are to the effect that the one guilty of negligence, in order to be held responsible, must anticipate the precise injury that resulted. This is not the law as we understand it. The principle is that it is not essential to recovery that the precise injury may or must have been anticipated, but that from the situation and conditions then existing some injury may be sustained as the natural and probable result of the negligent conduct. (Trinity Lumber Company v. Denham, 85 Tex. 60; Rice v. Dewberry, 93 S.W. 719.)

What we have said in effect disposes of the third, fourth and fifth assignments of error. They are based upon the action of the court in refusing instructions to the effect that in order for the plaintiff to recover the jury must believe that the precise injuries sustained, or the acts from which they arose, could or should have been anticipated by appellant.

The tenth assignment of error complains of the charge of the court on proximate cause. The charge, as far as it went, was correct, but we suggest that it be more complete on another trial, and follow the rule announced in Gulf, C. S. F. Ry. Co. v. Turner, 93 S.W. 197.

The eleventh, twelfth and thirteenth assignments of error complain of the action of the trial court in refusing charges which directly and in an affirmative way called the jury's attention to the question whether Mrs. Morgan was guilty of contributory negligence in going upon the wet and muddy street in entering the hack at Ft. Worth on the morning of her departure for Burleson. The three charges present practically the same question; and in view of the fact that the court did, at the request of appellant, give its charge No. 11, covering the same subject, there was no error in refusing these instructions. When a party requests two or more charges presenting the same question, and the court selects and gives one of them, he is in no condition to complain if the others are refused.

We are not satisfied that the evidence would justify the charge requested and set out under appellant's fourteenth assignment of error, and which was refused; but if upon another trial the evidence would justify such a charge, it would be proper to give it on the issue of contributory negligence as to the conduct of Mrs. Morgan therein mentioned. The same may be said of the charge requested as set out under the fifteenth assignment. Upon this subject it is well to say that the burden is upon the appellant to show the state of facts that raise the issue of contributory negligence. As to the question raised under the fourteenth assignment, it does not appear that the transfer man would have accommodated his movements to those of the plaintiff upon the request to so do; nor is the evidence satisfactory that she was walking too fast. As to the issue presented by the fifteenth assignment, it is not made to appear that Mrs. Morgan could have procured the wraps at Burleson when she arrived there. These matters can not be taken for granted, but there must be some evidence raising the question.

The objection to the charge urged in the sixteenth assignment of error will doubtless be corrected on another trial.

There are several assignments of error which complain of the action of the trial court in admitting certain testimony of Mrs. Morgan and her husband. We have examined into the questions raised, and are satisfied that the evidence was admissible.

The expressions in the charges complained of by the twenty-third, twenty-fourth and twenty-fifth assignments of error border closely upon expressions on the weight of evidence, and doubtless the charges in this respect will be corrected upon another trial.

The twenty-sixth assignment of error complains of a charge given at the request of the plaintiff. We overrule the assignment. We overrule appellant's twenty-seventh assignment of error. We think the evidence of Morgan there complained of was admissible to go to the jury for what it was worth, in view of the testimony of Mrs. Morgan as to what had previously passed between her and the auditor. It could be considered for what it was worth as evidence tending to show that the auditor's attention was called to the fact that Mrs. Morgan desired to get off at Burleson. It may be true that the auditor did not know that Mrs. Morgan was the wife of J.P. Morgan, but according to her testimony the auditor agreed to let her off at that place, and assist her in alighting, and when J. P. Morgan approached him and asked him if his wife was on the train at the time that the train was at a stop at Burleson, we can not say but what the jury may have given the inquiry of Morgan some importance as refreshing the recollection of the auditor as to the conversation with Mrs. Morgan, and as to his promise to let her off at that place; and in this connection it is well to say that we are also of the opinion that the appellant was entitled to the charge requested and set out under the twenty-eighth assignment of error.

Appellant's twenty-ninth assignment of error complains of the action of the court in submitting as items of damages doctors' bills and drug bills. This, on the ground that there was no evidence tending to show that they were reasonable. This objection will be obviated on another trial.

We now come to what we consider reversible errors. The tenth paragraph of the charge of the court, which is complained of in the twenty-first assignment, is to the effect that it was the duty of the defendant's employes in charge of the passenger train to call the station of Burleson when the train reached that station, in a sufficiently loud tone of voice to apprise Mrs. Anna Morgan, who was a passenger thereon, of that fact, etc. It was a contested issue on the trial of this case whether the station Burleson was called. Mrs. Morgan contended that it was not called, and the appellant's evidence is to the effect that it was called. If the station had been called and Mrs. Morgan heard the call, it would have been her duty to have made some effort to get off. This charge instructs the jury that, as a matter of law, it was the duty of those in charge of the train to call the name of the station in a sufficiently loud tone of voice to apprise passengers that the station had been reached. There is no statute requiring this to be done, and it is not one of those absolute duties that are indispensable to the safety of the passengers. The arrival of a train at a station may be known without the necessity of calling its name; and we know of no rule that would justify the court in peremptorily instructing the jury that the duty was imposed upon those in charge of the passenger train to call the station. This question was directly passed upon in the case of Houston T. C. R. R. Co. v. Goodyear, 28 Texas Civ. App. 206[28 Tex. Civ. App. 206].

The appellant's sixth, seventh, eighth and ninth assignments all raise the same question. They are to the effect that if the jury should believe that Mrs. Morgan had been suffering from illness from diseased womb and ovaries, or other illness, and that such illness or suffering would have been caused if she had not been carried by Burleson, and that it was not proximately caused by being carried by such station, then to find for the defendant on that issue. There is evidence in the record which would justify the submission of this question to the jury. It is true the court in its charge did, in a general way, instruct upon this subject; but these charges directly and affirmatively present the question to the jury, and we think under the evidence the defendant was entitled to have one of them given, and as the least objectionable of the four upon this subject we have selected charge No. 28, set out under the eighth assignment of error, as the one proper to be given.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.