Citation Numbers: 159 S.W. 406
Judges: HENDRICKS, J.
Filed Date: 5/15/1913
Status: Precedential
Modified Date: 1/13/2023
We copy from appellant's brief that "this suit was instituted in the district court of Cottle county, Tex., by C. K. Johnson, as plaintiff, against the Quanah, Acme Pacific Railway Company, as defendant, for the recovery of damages for personal injury, alleged to have been sustained by the said Johnson as a passenger on one of appellant's mixed passenger and freight trains on the 1st day of December. 1910; the said injuries alleged to have resulted from the fall appellant received as a sudden movement of such train."
First. Appellant, by its first assignment of error, challenges the correctness of the second paragraph of the main charge of the trial court on the ground that the court in charging the jury assumed that the sudden movement of the train was negligence and that the charge as to this matter was upon *Page 407 the weight of the evidence and was highly prejudicial to the defendant, without leaving to the jury that the question of the jarring and jolting of the train was negligence. We are inclined to think that the complaint of appellant of the charge of the court is correct to the extent that the court did assume under the circumstances in the record that such sudden movement of the train was negligence, and necessarily the correctness of such assumption upon the part of the trial court is to be resolved upon the sufficiency of the evidence addressed to the court as justification for such charge.
Upon our consideration of this record, we think that the statement of appellee in his brief, of the evidence relevant to this particular proposition, is correct and appropriate, which we set out in full: "C. K. Johnson, the plaintiff, testified that on the date of his injury he purchased a ticket from the defendant from Quanah, Tex., to Paducah, Tex. That there were two chair car passenger coaches on the train. That he went into the rear coach at Quanah, Tex. That it was a cold day; the weather being about freezing. There was no fire in the coach. That he noticed just after leaving Quanah that there was no fire in the coach where he was sitting. That it was about six miles from Quanah to Acme, Tex., the first stop made. That the train ran up to the depot at Acme and stopped. That the engine cut loose and he heard it move off up the track. The conductor then came to the door of the coach in which plaintiff was seated and said, `You all come out of this coach; come into the front coach; that they were not going to have a fire in the back coach that day.' That the train was then standing still and all of the passengers got up and moved out into the front coach behind several other passengers. That when he got into the front coach he met a party and was endeavoring to pass said party in the aisle. That about this time something struck the front end of the train, anyhow the train gave us a severe jerk. That it threw the witness down and threw the other party down on top of the witness. That the stove was located a few feet inside the door of the front coach, and witness had about reached the stove when the engine or cars ran into the train. That it was either the engine or some loose cars that ran into the train. That it was a most severe jolt that he ever saw any train give. That it knocked the witness down on the floor, and he fell on his back and right arm. That some other person fell on top of him. That the fall almost knocked him senseless and that the arm he fell on was swelled to twice its normal size before he reached Paducah, Tex. Witness also testified that besides Tom Stine there were two ladies in the coach. That one of them was Mrs. Henry of Quanah, Tex. That Mrs. Henry said it was a good thing the old man didn't fall under the bottom or it would have killed him. The old man fell on top of witness. Witness further testified that he had ridden this train a few times before this, and that he had ridden mixed trains before this one. That he rode on mixed trains up to Seymour, Tex., numerous times, and that in his experience in riding on trains similar to the one he was on this jar was an extraordinary jar. That he had never been on this train before or since this time when there was such a jar on it. The witness Tom Stine by depositions testified that he was on the train with Johnson about January 1, 1911, and remembered the jerking of this train at Acme, Tex.; that when the jerk came it was so violent that while he was standing in the big coach just behind the lavatory it threw him up against it; that it was a very sudden jerk, and was caused by other cars being thrown into the train, or rather against the coach in which they were; that it was a very extraordinary jerk; and that he had been riding on mixed trains for the past 15 or 20 years. This was all the testimony introduced as to whether the jar was unusual or extraordinary. The conductor nor any of the crew on the train were called to testify either as to the jar being an ordinary one or to deny that Johnson was moving into the coach under instructions and at the invitation of the conductor."
The appellee, for the purpose of sustaining its position, relies principally upon the case of International Great Northern Railway Co. v. Copeland,
We hold under the evidence in this case, in view of the fact that the railway company did not attempt to negative or deny the testimony of the appellee and his witness, as to the extraordinary bump of said train (which is tantamount to an "unusual" bump), that the case of Railway Co. v. Stone,
Second. The appellant assigns error as to the action of the court in permitting certain witnesses to testify that the general reputation of the plaintiff in the community in which he lived was good on the ground that the defendant had not impeached the plaintiff and had not put his character in issue: the bill of exceptions raising this question was approved by the trial court, "with the qualification that the reputation of plaintiff had been attacked, the defense being that he was not injured." As stated, the appellant did not contradict the appellee's contention as to its negligence in the sudden movement *Page 409
of the train, and the plea of contributory negligence was clearly eliminated from the cause, and upon the facts there remained the only questions of the negligence of the appellant producing appellee's injuries and the extent of same. A consideration of the testimony of the numerous witnesses of appellant, including the doctor's and the physical demonstrations of its attorney with some of the physicians while upon the stand, coupled with the interrogations by the attorney of said physician, clearly raises the issue that appellee was malingering, which we think, under the rules with reference to impeachment, was such an attack upon plaintiff's character as to justify the testimony as to appellee's good reputation, and under this evidence clearly distinguishable from the cases cited by appellant. Railway Co. v. Raney,
Third. Appellant contends that the trial court erred in the submission of the fifth paragraph of the main charge to the jury upon the complaint that the testimony showed that two physicians attended plaintiff and treated him, but the testimony only shows the value of the services of one physician, and the court should have limited the recovery in this respect to the value of the services only of that physician. The petition alleged $150 as the amount recoverable for medicines and physicians' services, and the charge of the court limited the jury to the amount claimed in the petition. There is testimony of an expenditure for medicines (of an unsatisfactory character, but with reference to which there is no complaint) which, with the certain testimony as to the value of the services of one of the physicians, approximates so closely in amount to the $150 alleged that the difference is insignificant, and the appellant did not submit a special charge to the court upon the particular point as to any limitation to the jury, neither does it complain as to the charge of the court to the jury in which he instructs them not to exceed the amount claimed in the petition.
Appellant also asserts that the sixth paragraph of the main charge of the court on the matter of damages was misleading and permitted a recovery of double damages. The fifth paragraph submits specifically the measure and elements of damage recoverable, and we think that the sixth paragraph complained of, in which the court says, "If you find for plaintiff under the instructions heretofore given you, you will allow him such damages * * * as seem to you to be right and proper under all the facts and circumstances in evidence," immediately succeeding the fifth paragraph, is such an inferential reference to the fifth paragraph and not containing any different measure of damages that the two charges should and would be read together.
We overrule all assignments and order the affirmance of the judgment of the trial court.
The motion is overruled.