153 S.W. 414 | Tex. App. | 1913
Rehearing
On Motion for Behearing.
The motion for a rehearing is overruled.
Lead Opinion
On the morning of November 28, 1910, at about 3 o'clock, E. W. Lacy was struck and killed by appellant's passenger train at the depot in the town of Timpson, Tex. This suit was filed by his widow and children, who recovered in the court below a judgment for $2,500 as damages.
The evidence shows that Lacy had gone to the depot, upon this occasion, for the purpose of taking the early morning train, and had purchased a ticket. The night was dark, and the weather was cold. For some reason the waiting room was not lighted or heated, and the passengers, including the deceased, were invited, or permitted, to sit in the agent's office until the train arrived. When the train approached, Lacy, with the other passengers, went out on the platform for the purpose of taking passage. In going to the place where the train usually stopped for passengers to get off and on at this station, it was necessary to pass over a platform and through a space between the train and the wall of the depot building. This space was about 15 feet wide. On this particular occasion, some mail sacks had been left by the appellant's agent, on this platform, between the door of the agent's room and the place where the passengers were to board the train. Lacy was seen to go out of the door, with his grip in his hand, and start down this passage for the purpose of boarding the train. He was struck by some part of the cars when he reached the point where the mail sacks were lying. Whether he fell over these sacks and against the car, or was struck by the car and knocked where he was found, is not shown by the testimony. One witness testified to seeing him fall; but, as it was very dark, did not at the time know it was a man. When found, Lacy was dead, and his body was lying near the mail sacks.
The first three assignments of error attack the ruling of the court in admitting in evidence the deposition of Mrs. Lacy, one of the plaintiffs. The particular objection urged went to the manner and form of taking the deposition, and should have been presented in the manner provided by statute. Rev.St. 1895, art. 2289. It does not appear that this was done, or that any objection was made within the time required by statute. There are no bills of exception in the transcript. Appellant relies, in presenting these assignments, exclusively on the exceptions shown in the statement of facts. Nothing is there disclosed that would indicate any error on the part of the court in overruling the objections made. The objections were based upon a state of facts, concerning which the court would have been compelled to hear evidence; and there is nothing to show that any such evidence was adduced or tendered. There is no merit in the objection that the pleadings and evidence did not support the verdict. The negligence charged was in leaving the mail sacks on the platform and in failing to have the depot lighted. The evidence amply sustains the verdict. The remaining assignments of error are without merit, and are overruled.
The judgment of the district court is affirmed.
We adhere to our original conclusion, however, that the objection urged is one that went to the form and manner of taking the deposition, and should have been presented in a motion to suppress, in accordance with the requirements of the statute. In the absence of a showing to the contrary, it will be presumed that the depositions were filed before the case was called for trial. M. P. Ry. Co. v. Smith,
It is also urged that the trial court erred in refusing to give the following special charge requested by the appellant: "Gentlemen of the jury, in this case you are instructed that, if you believe from the evidence that the deceased, E. W. Lacy, after he left the office of the defendant company, left same walking towards the track with his head down, and did not observe the approaching train, but walked too near the track, and was struck by the engine or cars, and by reason of being too close to the track came in contact with said engine or cars, then you are instructed that the plaintiff cannot recover, although you may believe from the evidence that the defendant company was negligent in not having its depot lighted, or waiting room lighted and warm, or permitting the sacks and cart to remain between the track and the depot, as charged in plaintiffs' petition." In support of this assignment, appellant invokes the rule, which accords to the defendant, in suits of this character, the right to have his defenses affirmatively presented to the jury. The authorities which establish that rule make the right, however, dependent upon the preparation and presentation by the defendant of a correct special charge upon that subject. G., C. S. F. Ry. Co. v. Shieder,
The motion for a rehearing is overruled. *633
Lead Opinion
On the morning of November 28, 1910, at about 3 o’clock, E. W. Baey was struck and killed by appellant’s passenger train at the depot in the town of Timp-son, Tex. This suit was filed by his widow and children, who recovered in the court below a judgment for $2,500 as damages.
The evidence shows that Lacy had gone to the depot, upon this occasion, for the purpose of taking the early morning train, and had purchased a ticket. The night was dark, and the weather was cold. For some reason the waiting room was not lighted or heated, and the passengers, including the deceased, were invited, or permitted, to sit in the agent’s office until -the train arrived. When the train approached, Lacy, with the other passengers, went out on the platform for the purpose of taking passage. In going to the place where the train usually stopped for passengers to get off and on at this station, it was necessary to pass over a platform and through a space between the train and the wall of the depot building. This space was about 15 feet wide. On this particular occasion, some mail sacks had been left by the appellant’s agent, on this platform, between the door of the agent’s room and the place where the passengers were to board the train. Lacy was seen to go out of the door, with his grip in his hand, and start down this passage for the purpose of boarding the train. He was struck by some part of the cars when he reached the point where the mail sacks were lying. Whether he fell over these sacks and against the car, or was struck by the ear and knocked where he was found, is not shown by the testimony. One witness testified to seeing him fall; but, as it was very dark, did not at the time know it was a man. When found, Lacy was dead, and his body was lying near the mail sacks.
The first three assignments of error attack the ruling of the court in admitting in evidence the deposition of Mrs. Lacy, one of the plaintiffs. The particular objection urged went to the manner and form of taking the deposition, and should have been presented in the manner provided by statute. Bev. St. 1895, art. 2289. It does not appear that this was done, or that any objection was made within the time required by statute. There are no bills of exception in the transcript. Appellant relies, in presenting these assignments, exclusively on the exceptions shown in the statement of facts. Nothing is there disclosed that would indicate any error on the part of the court in overruling the objections made. The objections were based upon a state of facts, concerning which the court would have been compelled to hear evidence; and there is nothing to show that any such evidence was adduced or tendered. There is no merit in the objection that the pleadings and evidence did not support the verdict. The negligence charged was in leaving the mail sacks on the platform and in failing to have the depot lighted. The evidence amply sustains the verdict. The remaining assignments of error are without merit, and are overruled.
The judgment of the district court is affirmed.