Opinion
May 10, 1913.
Appeal from District Court, Henderson County; B. H. Gardner, Judge.
Action by M. C. Stone-De Lane and another against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant railroad company appeals. Reversed and remanded.
E. B. Perkins and D. Upthegrove, both of Dallas, I. S. Neblett, of Corsicana, and W. R. Bishop, of Athens, for appellant.
The appellee Mrs. M. C. Stone-De Lane, joined by her husband, brought this suit against the appellant to recover damages for personal injuries alleged to have been sustained by her through the negligence of appellant's servants and employés. The petition charges that on or about the 25th day of October, 1911, the plaintiff Mrs. Stone-De Lane took passage on a passenger train at Birmingham, Ala., with a ticket to Athens, Tex.; that plaintiff passed through Texarkana, and that when she reached the station of Bassett, in Texas, the officers of the train invited and caused her to disembark from said train; that the conductor or auditor or brakeman called said station of Bassett "Athens," and the conductor helped her off the train, and informed her that she had reached her destination; that the place was Athens, Tex.; that by reason of said carelessness and negligence of the servants of defendant in causing her to disembark and leave said train at said point plaintiff was caused to remain in the town of Bassett for more than 24 hours; that she was invited and requested to leave said train in the nighttime; that there were no hotels in said town; that she was compelled and did remain in the depot the remainder of the night; that the night was cold and there was no fire in said depot; that she suffered from cold in said depot, was worried and annoyed, make sick, suffered from headache, backache, and nervous prostration. The defendant answered by general denial, and also alleged that plaintiff M. C. Stone-De Lane was guilty of contributory negligence in leaving the train at the town of Bassett, and in not ascertaining that she had not reached her station, and in not going to a boarding house or hotel, but remaining in the depot during the night. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment for plaintiffs for $175. From this judgment the defendant appealed.
The first assignment of error complains of the court's refusal to give the following requested instruction: "If you believe from the evidence that the brakeman on the train at the station of Bassett, or between the water tank and the station, called the station Bassett and not Athens, and the plaintiff was mistaken as to the call of the station, and left the train under the belief she was getting off at Athens, and you further believe from the evidence she was not seen by the conductor to leave the train, and that the brakeman assisted her off the train not knowing she was destined for Athens, then you will find for the defendant." The issue sought to be submitted by this charge was clearly raised by the evidence, and the charge should have been given. Appellant's brakeman testified: "A brakeman's duty is for the protection of the train and to assist the conductor with the passengers, help assist the passengers off and on the train, and he calls the stations when the train is approaching the stations. On the night in question, the 26th of October, 1911, when we got to the town of Bassett, I did not call the station `Athens.' I called that station `Bassett.' I did not know there was a lady on the train destined to get off at Athens. I did not invite or direct a lady at Bassett to get off, telling her it was Athens. I just called the station, and that was all I done. I called the station `Bassett.'" B. J. Cobb, a passenger on the train, testified: "I was on the train that passed through Bassett that night. I got on at Texarkana. I bought a ticket for Bassett. The station of Bassett was called that night. I was laying there, and suppose I had been asleep and woke up when it stopped at the tank, and when it moved off from the tank the conductor or brakeman or some of them holloaed out, `Bassett!' `Bassett!' and I got up and walked out of the car. I was in the chair car. The train stopped at the station, and there is where I got off at the station. The station was called after the train stopped at the water tank. They take water there. I suppose the tank is a train length or a little over a train length from the depot. I know that station was called out, `Bassett.'" The conductor testified that he did not know the lady had got off the train till he got to Mt. Pleasant, where the operator advised him that the lady had got off at Bassett. He says: "That was the first time that I knew she had gotten off the train at Bassett, and I left instructions to make arrangements for the conductor to bring her on the next morning to Athens. I did not tell the lady to get off at Bassett. I did not call out the station of Athens when we got to Bassett. I had seen the lady on the train that night before reaching Bassett. She asked what time we would get to Athens and I told her about 5:30. That was after we left Texarkana. Between Texarkana and Bassett." The plaintiff Mrs. Stone-De Lane, having testified on direct examination that when the train arrived at Bassett the station was called Athens, in rebuttal, said: "It was the conductor that made the announcement that that was Athens; he was the only one that I remember noticing the train. I do not remember seeing any other man in the train. I do not remember seeing Mr. Bledsoe, the man that says that he is brakeman on the train that night" Thus it appears that the contention of the plaintiffs was that the conductor in charge of the train in question called the station and called it "Athens," and not "Bassett," and that it was the theory and claim of the defendant that the brakeman called the station and called it "Bassett," and not "Athens"; that the plaintiff Mrs. Stone-De Lane was mistaken in the call and got off the train; that the conductor did not see her leave the train, and the brakeman did not know her destination, and so assisted her to alight at Bassett. Of these contentions that of the plaintiffs was clearly presented for the consideration of the jury, but that of the defendant was not. Having failed to submit defendant's theory of the case in the main charge and there being evidence tending to support such theory, that is, evidence to the effect that the brakeman announced the station correctly, and that Mrs. Stone-De Lane may have been mistaken as to the name called and left the train, thinking it was Athens, that the conductor did not see her get off the train and that the brakeman aided her to alight therefrom not knowing her destination was Athens, it was reversible error for the court to refuse the requested charge submitting the issue.
It is well settled that the defendant, especially when a request is made therefor, is entitled to have the group of facts relied on in defense of the plaintiff's action submitted to the jury and the jury told what to do in case they find such facts to be true. "Such a charge directs the minds of the jury to the very facts in issue, and invokes their judgment upon the evidence relative to that issue." Railway Co. v. Rogers, 91 Tex. 52, 40 S.W. 956; Railway Co. v. Ayres, 83 Tex. 269, 18 S.W. 684; Railway Co. v. McGlamory, 89 Tex. 639, 35 S.W. 1058; Railway Co. v. Hall, 98 Tex. 480, 85 S.W. 786; Id., 92 S.W. 1079. Of such was the nature of the special charge under consideration and the court erred in refusing it.
There are other assignments of error, but they need not be stated and discussed. They either point out no reversible error or the matters complained of were covered by special chargs given at defendant's request. The allegations of the petition when construed as a whole were sufficient to authorize the submission of the issue as to whether the conductor, as the train was approaching the station Bassett, called out in the car in which Mrs. Stone-De Lane was traveling "Athens." In addition to the allegation that Mrs. Stone-De Lane was "invited and requested" to leave the train at Bassett, it is alleged that the "conductor (italics ours) or auditor or brakeman called said station `Athens' "; that the "conductor helped the plaintiff M. C. Stone-De Lane off of the train of the defendant, and advised her that that was her destination, and that the place was Athens, Tex."
For the failure of the trial court to give the special charge made the basis of appellant's first assignment of error, the judgment is reversed, and the cause remanded for a new trial.