
    MISSOURI, K. & T. RY. CO. OF TEXAS v. THOMAS.
    (Court of Civil Appeals of Texas.
    Dec. 14, 1910.)
    1. Carriers (§ 315) — Carriage oe Passengers — Pleading— Allegation oe Negligence — Res Ipsa Loquitur.
    In an action by a mail clerk against a railroad for personal injuries received in a wreck, plaintiff’s petition alleged that his injuries were caused toy the negligence and carelessness of defendant’s employés, in charge of the two trains which collided, in failing to obey orders, etc., and the negligence of defendant in providing a defective mail coach. Upon the trial, plaintiff proved that the wreck occurred as alleged, and that he received the injuries, but failed to prove the negligence as alleged. Meld that, as plaintiff had specified in his petition the particular acts or matters which constituted defendant’s negligence, he waived his right, which he would otherwise have had, to rely on the doctrine of res ipsa loquitur, and was tied down to the negligence alleged.
    Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1281, 1282; Dec. Dig. § 315.]
    2. Appeal and Error (§ 728) — Review — Harmless Error — Admission oe Evidence —Failure oe Bill oe Exceptions.
    Where an assignment of errors in the bill of exceptions concerning evidence does not clearly show whether it was admitted or excluded, the assignment is not sufficient to cause a reversal, even though such evidence would have been improper if admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.]
    3. Appeal and Error (§ 1060) — Harmless. Error — Conduct oe Counsel — Questions-as to Incompetent Matters.
    In an action against a railroad company for personal injuries, plaintiff’s counsel, while-the plaintiff was a witness, asked him if he was a married man, and before defendant’s counsel could object, plaintiff answered, “Yes,” and upon objection being made, plaintiff’s counsel stated that he would not insist on the evidence if it was objected to, and immediately asked, “Any children?” and the plaintiff answered, “Yes.” On objection toy the defendant, plaintiff’s counsel said, “We withdraw that.” The defendant then objected against the-conduct of the plaintiff and his counsel in getting before the jury improper testimony before it could be objected to. The court sustained this objection and instructed the jury to disregard the testimony. An exception was then taken to the conduct of plaintiff and his counsel. Meld that, this evidence being wholly immaterial and of a character calculated to appeal to-the sympathy of the jury, such conduct of plaintiff and counsel constitutes reversible error.
    [Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    Appeal from District Court, Bell County t John D. Robinson, Judge.
    Action by S. H. Thomas against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Coke, Miller & Coke and Tyler, Hubbard & Tyler, for appellant. Winbourn Pearce and A. L. Curtis, for appellee.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   KEY, C. J.

About the 10th day of October, 1909, there was a head-on collision between a passenger train and a freight train near the town of Troy in Bell county, on the Missouri, Kansas & Texas Railway. At the time in question S. H. Thomas was the mail clerk and occupied a mail car on the passenger train,- which car was wrecked and almost demolished, and Thomas was seriously injured. Thereafter, Thomas brought this suit against the Missouri, Kansas & Texas Railway Company of Texas, alleging that his injuries were caused by the negligence and carelessness of the defendant’s employés in charge of the two trains which collided, in negligently failing to obey orders, and by the negligence of the defendant’s agents and employés in negligently giving orders to those in charge of the two trains, and by the negligence and carelessness of the defendant in furnishing and providing the passenger train with a mail car that was old, out of date, rotten, unsafe, and dangerous. The defendant’s answer embraced a general demurrer and a general denial. There was a jury trial which resulted in a verdict and judgment for the plaintiff for $12,500 and the defendant has appealed.

The plaintiff proved that the collision occurred at the time and place alleged, and that he sustained certain injuries as a result of the collision. No testimony was submitted tending to show that the collision was caused by either of the specific acts of negligence alleged in tlie plaintiff’s petition. It is true that the plaintiff testified that the mail car in question had been in use for 13 years; that it was a very light car and had been in the shop a number of times, but not materially strengthened in any way; that it had wood sills, t wood frame, light trucks, and lighter equipment than the Missouri, Kansas & Texas runs on its trains. However, that car was next to the engine and tender; and, in view of the fact that the plaintiff’s own testimony, as well as that given by other witnesses, shows that it was' almost entirely demolished, we do not think that the plaintiff’s testimony as to the character of the ear presented any issue of negligence in respect to the car. If it had been heavier and constructed of stronger material, it is equally as probable that it would have been wrecked and the plaintiff injured in a head-on collision, when one of the two trains was traveling at the rate of about 40 miles an hour, as testified to by the plaintiff. Notwithstanding the fact -that the pleadings and testimony were as stated, the court refused a peremptory instruction directing a verdict for the defendant, and in its eharge to the jury did not limit the plaintiff’s right to recover to the specific acts of negligence charged in his petition, but instructed the jury, in substance, that if they found that the collision was caused by any act of negligence on the part of the defendant, and that the plaintiff, as a proximate result thereof, was injured, to return a verdict for him; and the action of the court in those respects is assigned as error, and we sustain the assignments. Evans v. Wabash Ry. Co., 222 Mo. 435, 121 S. W. 36; Gibler v. Quincy, etc., Ry. Co. (Mo. App.) 128 S. W. 791; Roscoe v. Metropolitan St. Ry. Co., 202 Mo. 576, 101 S. W 32.

If the plaintiff had merely charged in his petition that the defendant was guilty of negligence in permitting the two trains in question to collide, and that’ the plaintiff was unable to allege and prove the particular act or omission which constituted the defendant’s negligence, the court’s eharge, and its ruling in refusing the requested instruction directing a verdict for the defendant, would have been correct. But, inasmuch as the plaintiff saw proper to enter into details and specify particular acts or omissions as constituting the defendant’s negligence, then by so doing he waived his right, which otherwise he would have had, to rely upon the doctrine of res ipsa loquitur, applicable to cases of this class. The rule on this subject is well stated in the following excerpt from the opinion of the court in the Gibler Case, above cited:

“We do not hesitate to express the opinion, as was done on the former appeal, that the doctrine referred to might have been invoked by plaintiff had he relied solely upon a general charge of negligence against defendant, for it seems that the uncoupling of a freight train in the circumstances stated, while running-over the tracks at the rate of 20 or 25 miles an hour, is such an unusual and extraordinary occurrence as to bespeak the want of due care on the part of the defendant in some respect or somewhere. It may be the negligence was in the operation of the locomotives, or it may be in the construction or defective condition of the couplings, or it may lie in the defective condition of the roadbed; but, though the fact in and of itself indicates negligence, no one can say that it points to the engineer as the negligent party. As suggested, the fact may point negligence, but what particular negligence it indicates is another question. The plaintiff in his petition points to the negligent acts of the engineer as those upon which he relies for a recovery, and fails to give any proof to sustain the charge. It is clear enough that, although the fact of the accident bespeaks negligence, no one can say that of itself it indicates or tends to prove negligence in the engineer any more than it tends to prove negligence in the condition or construction of the couplings.

“The general rule obtains to the effect that the specific acts of negligence pleaded and relied, upon for recovery must be proved. Waldhier v. H. & S. J. R. R. Co., 71 Mo. 514; Price v. St Louis, etc., Ry., 72 Mo. 414; Bunyan v. Citizens’ Ry., 127 Mo. 12, 29 S. W. 842; Ely v. St. Louis, etc., Ry., 77 Mo. 34; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S. W. 872; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929; Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52. In proper cases, when the allegation of negligence is general in character only and unaccompanied by a recital of the specific acts which go to the breach of duty relied upon, the doctrine of res ipsa loquitur may be invoked. The rule permitting a presumption of negligence to suffice for plaintiff proceeds on the theory that it is easily within the means of defendant to show there was no dereliction on his part, if such be the fact, while the plaintiff would labor under a great disadvantage if the burden to show the particular acts of negligence continued with him. Roscoe v. Met. Street Ry. Co., 202 Mo. 576, 101 S. W. 32; Orcutt v. Century Bldg. Co., supra; Feary v. Met. Street Ry. Co., 162 Mo. 75, 62 S. W. 452; Malloy v. St. Louis & S. R. Co., 173 Mo. 75, 73 S. W. 159; Gibler v. Q., O. & K. C. Ry. Co., 129 Mo. App. 93, 107 S. W. 1021; Briscoe v. (Met. Street Ry. Co., 222 Mo. 104, 120 S. W. 1162.

“There can be no doubt that one may join in his petition an allegation of general negligence with averments of specific acts touching the same manner of complaints. But when the petition contains a general allegation of negligence and proceeds to aver specific matters of fact as to the manner in which the mishap occurred, the specific aver-ments are preferred and take precedence over the general allegation as to the same subject-matter, and plaintiff is therefore required to prove the specific allegations of fact as laid. The authorities all go to this effect. See Mueller v. La Prelle Shoe Co., 109 Mo. App. 506, 84 S. W. 1010; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440, 37 S. W. 119; Waldhier v. H. & S. J. R. Co., 71 Mo. 514. Prom these premises it is determined and the rule of practice obtains to the effect that, where there is a general allegation in the petition as to the negligent breach of duty, and it is accompanied by averments of specific acts of negligence, touching the same subject matter, the rule of res ipsa loquitur will not apply, for by going into the specification of negligent acts plaintiff has shown his familiarity with the grounds of liability involved, and indicated not only his purpose, but his ability as well, to prove the same as laid. See Evans v. Wabash R. R. Co., 222 Mo. 435, 121 S. W. 36.

“Indeed, the general doctrine above re-fered to is portrayed in all of the cases where the verdict is sought to be sustained on the theory of res ipsa loquitur. In other words, in every case, whether the petition contains a general allegation of negligence or not, if the averments point to the specific negligence relied upon for a recovery, the plaintiff is required to prove the same as laid, and the doctrine of presumptive negligence may not be invoked. By averring specific negligence, plaintiff indicates his purpose to prove the same, and defendant is required only to defend against the acts of the particular negligent party pointed out in the pleading — in this ease, the engineer and those in charge of the train. See the following cases in point: Orcutt v. Century Bldg. Co., supra; Roscoe v. Met. Street Ry. Co., supra; McGrath v. St. Louis Transit Co., supra; Potter v. Met. Street Ry. Co. [142 Mo. App. 220] 126 S. W. 209; Evans v. Wabash Ry. Co., supra; Beave v. St. Louis Transit Co., supra.

“It therefore appears, in view of the allegations of his petition, that plaintiff may not invoke the doctrine of res ipsa loquitur, even though his petition contains a general allegation of negligence, for the reason he saw fit to accompany such general allegation with specific allegations of negligent acts touching the same subject-matter. Having chosen to thus specify the engineers and those in charge of the train as the negligent persons, he must prove the fact as laid in order to make a prima facie case, otherwise there, appears a total failure to carry the burden which the law casts upon him.

“Having failed to prove any negligent acts whatever against the engineers or others in charge of the train, the judgment is unsupported by the evidence and should be reversed.”

We are also of the opinion that the testimony referred to in the fourth assignment was not admissible, as it tended to show other negligence than that specifically alleged in the plaintiff’s petition. However, as it is not clear from the bill of exceptions as to whether it was admitted or excluded, we do not reverse the case on that assignment.

The other assignments complaining of rulings made as to the admissibility of testimony have been considered and are overruled, as none of the points presented are regarded as tenable. However, the sixth assignment of error is sustained. It complains of the action of the plaintiff’s counsel and the plaintiff himself while on the witness stand. The bill of exception shows that while the plaintiff was testifying as a witness, the plaintiff’s counsel asked if he was a married man, and the plaintiff, before the defendant’s counsel could object, answered, “Tes.” The plaintiff’s counsel, as soon as objection was made, stated that he would not insist on the evidence if it was objected to, and immediately asked this question, “Any children?” and the plaintiff immediately answered, “Yes.” Whereupon the defendant’s counsel objected, and the plaintiff’s counsel said, “We withdraw that.” The defendant’s counsel then protested against the conduct of the plaintiff and his counsel in getting before the jury improper testimony before it could be objected to, and the court sustained the objection and directed the plaintiff not to answer questions' until the defendant’s counsel had time to interpose objections. And thereupon the plaintiff’s counsel asked the court to withdraw from the jury the answer to the last question, and the court instructed the jury to disregard that answer. The testimony was objected- to as immaterial, and a bill was reserved to the conduct of the plaintiff and his attorney.

It is fair to assume that any lawyer having reputation enough to be employed in a case of this importance is aware of the fact that the plaintiff’s right to recover, and the amount he may be entitled to recover, are in no wise dependent upon whether he is married or single, and has or has not children, and we have no doubt that the plaintiff’s counsel was aware of that rule of law. It is also fair to assume that a lawyer of that intelligence is aware of the fact that the existence of a wife and children dependent upon a plaintiff, who has sustained an injury as the result of á railroad wreck, will be calculated to appeal to the sympathy of jurors. Whether or not such knowledge would influence a jury, after they had been admonished by the court not to consider it as testimony, is a matter of speculation about which there is no certainty. Hence we do not hesitate to hold that when, in cases like this, and when a large verdict has been obtained, and an attorney and his client have pursued the course that was pursued in this case, and have thereby apprised the jury of the fact that the plaintiff has a wife and children dependent npon him, they have acted in a manner which ought not to receive judicial sanction; and the only sufficient remedy for such misconduct is to require them to forego and surrender the verdict, which may have resulted from such wrongful conduct. Railway v. Levy, 59 Tex. 550-552, 46 Am. Rep. 269; Tucker v. Hamlin, 60 Tex. 174-176; Smyth v. Caswell, 67 Tex. 575-577, 4 S. W. 848; McCauley v. Long & Co., 61 Tex. 80, 81; City of Belton v. Lockett, 57 S. W. 687; Beaumont Traction Co. v. Dilworth, 94 S. W. 356.

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