
    International & Great Northern Railroad Company v. F. H. Hugen. International & Great Northern Railroad Company v. F. Hugen.
    Decided February 20, 1907.
    1. —Passenger Carrier—Negligence—Locked Door.
    Whether or not it was negligence towards passengers for a railway company to keep the front door of its coach locked was, it seems, a question of fact; special exception did not lie to the allegation of such fact since it was proper to explain delay of a passenger in leaving the car and inducing the circumstances of leaving it, and evidence thereof was admissible for such purpose.
    2. —New Trial—Control of Judgment During Term.
    The jurisdiction of the District Court over its own judgments continues through the term at which they were rendered, and after overruling one motion and notice of appeal given it may still entertain another motion and grant new trial on it.
    3. —Pleading and Evidence.
    Substantial correspondence between the allegations and the proof is all that is required.
    4. —Evidence—Declarations of Injured Person.
    Statements made by plaintiff a few minutes after being injured, explaining his falling from the train to be caused by being pushed off by the porter, in answer to questions by bystanders who came to his assistance, were admissible as part of the res gestae.
    
      5. —Same.
    Declarations of an injured party to bystanders, constituting res gestae, may be testified to by the injured party himself. If he had testified differently on a former trial, professing to.have been unconscious of what he said, this went to the credit to be given his statements, not to their admissibility:
    6. —Witness Under Rule.
    It is within the discretion of the trial court to permit a witness to testify who, after being put under rule, has remained in court and heard the testimony. See circumstances held to show no abuse of such discretion.
    7. —Passenger—Degree of Care—Charge.
    Jt was proper to define the care required of a carrier of passengers as that of very cautious and prudent persons and that of the passenger as of persons of ordinary prudence, nor was it erroneous to give these instructions by paragraphs in juxtaposition.
    8. —Passenger—Charge.
    The evidence supporting the theory that plaintiff was a passenger and the charge defining the care necessary from defendant in that relation, defendant can not complain of the failure to state the degree of care required if the relation of carrier and passenger had terminated, though there was evidence to support this view also, unless he requested such instructions.
    
      9. —Charges—Inconsistency.
    Charges on the law governing the cases respectively of a passenger injured in leaving a train in motion by jumping off, falling off, or being pushed off by the train porter, considered and held not inconsistent nor erroneous.
    10. —Charge—Repetition.
    A theory of the case should not be given undue prominence by repeated charges. One whose requested instruction on a certain hypothesis has been given, is not entitled to complain of the refusal of a later charge asked on the same subject and made more specific.
    11. —Master and Servant—Train Porter—Passenger.
    A master is liable for the wrongful or negligent act of his servant done in the course of his employment, though the particular act was unauthorized and unlawful, as where a train porter pushed a passenger from the platform of a moving car.
    12. —Damages.
    Recovery of $15,000, as damages for personal injury to a minor in falling or being thrown from a moving train, sustained as not excessive.
    Appeal from the District Court of Milam County. Tried below before Hon. J. C. Scott.
    
      S. B. Fisher, J. H. TaUichet and S. W. Fisher, for appellant.
    All the statements made by Hugen while on the ground after his injury were in response to inquiries propounded by bystanders who had gathered there. They were not spontaneous, nor made to a physician. International & G. N. R. R. Co. v. Anderson, 82 Texas, 516; Missouri, K. & T. Ry. Co. v. Moore, 24 Texas Civ. App., 491; Texas & P. Ry. Co. v. Crowder, 70 Texas, 222; Gulf, C. & S. F. Ry. Co. v. Pilkington, 70 Texas, 226; Fort Worth & D. C. Ry. Co. v. Stone, 25 S. W. Rep., 808; St. Louis S. W. Ry. Co. v. Gill, 55 S. W. Rep., 386; 2 Bouvier’s Dictionary, Res Gestae.
    If the passenger negligently remains upon the car until it pulls out from the station, he is a passenger no longer and the company does not owe him the extraordinary care applicable to that relation. The authorities are divided as to whether he is a licensee entitled to ordinary care or a trespasser who can only claim immunity from wilful injury. Texas & P. Ry. Co. v. James, 82 Texas, 306; Davis v. Houston & T. C. Ry., 59 S. W. Rep., 844; Fanning v. St. Louis S. W. Ry. Co., 12 Texas Ct. Rep., 688; Texas & Pac. Ry. Co. v. Alexander, 30 S. W. Rep., 1114; Houston & T. C. Ry. Co. v. Cohn, 33 Texas Civ. App., 13; Missouri, K & T. Ry. Co. v. Dawson, 10 Texas Civ. App., 31; St. Louis S. W. Ry. Co. v. Rickards, 54 S. W. Rep., 1090; Condran v. Chicago, M. & St. P. Ry. Co., 67 Fed. Rep., 533, s. c. 14 C. C. A., 506.
    The master is not responsible for any wrongful conduct of the servant outside of the scope of his employment. International & G. N. v. Cooper, 88 Texas, 607; International & G. N. v. Anderson, 82 Texas, 520; Branch v. International & G. N. R. R. Co., 92 Texas, 292; International & G. N. R. R. Co. v. Yarbrough, 39 S. W. Rep., 1096; Gulf, C. & S. F. R. R. Co. v. Dawkins, 77 Texas, 228; Texas & Pac. Ry. Co. v. Moody, 23 S. W. Rep., 41; Texas & P. Ry. Co. v. Black, 87 Texas, 165.
    
      
      Henderson & Lockett, Moore & Moore, U. 8. Hearrell and F. M. Adams, for appellees.
    Until the adjournment of the District Court all its judgments in causes tried at the term then current were “within the bosom of the court” which had full jurisdiction to set aside any judgment it had entered at that term and set down for new trial the cause in which it had been entered. Blum v. Wettermark, 58 Texas, 125; Garza v. Baker; 58 Texas, 487; Churchill v. Martin, 65 Texas, 367; Texas Saving Loan Assn. v. Smith, 32 S. W. Rep., 381; Grubbs v. Blum, 62 Texas, 427; Hooker v. Williamson, 60 Texas, 527; Blackburn v. Knight, 81 Texas, 331; Ellis v. Harrison, 24 Texas Civ. App., 15; Lehman v. Gajusky, 75 Texas, 569.
    Substantial correspondence between the allegata and probata is sufficient. Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Texas, 631.
    The statements of F. H. Hugen made while he yet lay upon the ground where he had fallen from the train, in great pain, and within a very few minutes after his injury, and in response to questions which in no way suggested the answers he gave, came very clearly within the class of statements admissible as res gestae. Houston & T. C. Ry. Co. v. Weaver, 41 S. W. Rep., 848 (declaration in answer to question); De Walt v. Houston, E. & W. T. Ry. Co., 22 Texas Civ. App., 403 (declaration in answer to question) ; Texas & P. Ry. Co. v. Robertson, 82 Texas, 660; Texas & P. Ry. Co. v. Hall, 83 Texas, 682; International & G. N. Ry. Co. v. Davis, 14 S. W. Rep., 644; Galveston, H. & S. A. Ry. Co. v. Davis, 65 S. W. Rep., 217.
    It was in the discretion of the trial court to permit the witness who was under the rule and who after once testifying remained for a time in the court room during the introduction of the defendant’s evidence, to testify for. plaintiff in rebuttal. Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Texas, 630; Phillips v. Edelstein, 2 Texas App. C. C., 452; Willis v. Nichols, 5 Texas Civ. App., 157; Colbert v. Garrett, 57 S. W. Rep., 853.
    The care required of a common carrier of passengers toward its passengers is that high degree of care that a very cautious and prudent person would use under same or similar circumstances, and the want of such care would be negligence. St. Louis S. W. Ry. Co. v. Campbell, 69 S. W. Rep., 451; Gulf, C. & S. F. Ry. Co. v. Shields, 28 S. W. Rep., 709; Chicago & E. I. Ry. Co. v. Jennings, 54 L. R. A., 830.
    The evidence being uncontradicted that the relation of carrier and passenger existed, it was proper for the court to define negligence as applied to defendant upon the basis and relation of carrier and passenger, and if defendant desired a charge specifically submitting to the jury its affirmative defense, such a charge should have been requested. Texas & Pac. Ry. Co. v. Eberheart, 91 Texas, 323; Hocker v. Day, 80 Texas, 532; Banner v. Moore, 3 Texas Civ. App., 425; Campbell v. Warner, 24 S. W. Rep., 1013, 704; Ellis v. Kirkpatrick, 74 S. W. Rep., 57; Missouri, K. & T. Ry. Co. v. Felts, 50 S. W. Rep., 1034; Bell v. Beazley, 45 S. W. Rep., 401; Hawkins v. Kramer, 63 Texas, 102; St. Louis S. W. Ry. Co. v. McArthur, 73 S. W. Rep., 77.
    The pushing or shoving of F. H. Hugen off the moving train by appellant’s porter was an assault, and such assault having been committed by the porter in discharge of his duties to his master, defendant company is liable for the injuries proximately resulting therefrom. 2 Am. & Eng. Enc. L. (2d ed.), 953, 954, 982, 990, 991; 3 Thompson on Neg., 618, 624, 625, 728, 729; International & G. N. Ry. Co. v. Kentle, 16 Am. & Eng. R. Cas., 337; Texas & Pac. Ry. Co. v. Mother, 24 S. W. Rep., 79; Stone v. Chicago, St. P. M. & O. Ry. Co., 59 N. W. Rep., 457; Houston & T. C. Ry. Co. v. Gregsby, 35 S. W. Rep., 815.
    The act of the porter in urging and pushing Hugen was done in furtherance of defendant’s business of running its train of which said porter was one of the operatives, on its schedule time and without delay; and though the particular act which the porter did in furtherance of said business may not have been authorized, yet the defendant is liable for the consequences of such act. Paraffine Co. v. Berry, 15 Texas Ct. Rep., 660; Texas M. Ry. Co. v. Dean, 12 Texas Ct. Rep., 435.
   EIDSON, Associate Justice.

These are suits brought in the court below by the appellees respectively against the International & Great Borthern Bailroad Company, appellant in each case, for damages on account of personal injuries received by appellee F. H. Hugen, through the alleged negligence of appellant. At the date of the injuries, F. H. Hugen was a minor, and the suit of F. Hugen, who is his father, was for damages on account of expenses and loss of wage earning capacity of the son during his minority. These cases were by agreement tried together in the court below with separate pleadings, but on the same testimony, separate charges being given and separate verdicts and judgments rendered. The verdict for F. H. Hugen was for $15,000, that for F. Hugen for $1,500, of which plaintiff remitted $1,030. It was further agreed by counsel that the cases should be submitted in this court upon the same transcript and briefs.

The petitions of appellees showed good causes of action, and hence were not subject to general demurrer. There was no error in the action of the court below in overruling appellant’s special exceptions to the allegations in plaintiff’s petition, to the effect that it was negligence for the front door of the coach in which plaintiff was riding to be closed, as it was a question of fact to be determined by the jury upon the evidence and under proper instructions of the court, whether or not it was negligence for the defendant to so close its doors; and, further, we are of the opinion that such allegations were proper as matter of inducement, and as explaining any delay there might appear to be in F. H. Hugen’s leaving the car at Gause, and as negativing contributory negligence on his part in any such delay as might be shown.

Appellant’s contention that the action of the trial court in setting aside its judgment overruling plaintiff’s motion for a new trial in suit Fo. 4052, and entertaining and granting during the same term of court a subsequent motion for new trial, filed and presented after overruling said former motion and after exception to such action by plaintiff and notice of appeal to the Court of Civil Appeals given, was beyond its jurisdiction and void; in our opinion is not sound. The jurisdiction of the District Court to set aside its own judgments continues during the term, and this is'so although all the steps prescribed by the statute for the perfection of an appeal have been taken before the close of the term. (Blum v. Wettermark, 58 Texas, 125; Garza v. Baker, 58 Texas, 487; Churchhill v. Martin, 65 Texas, 367.) Hence there was no error in the court’s sustaining the plaintiff’s special exception to paragraph 5 of defendant’s second amended original answer.

The admission of the testimony complained of in appellant’s fifth assignment of error was proper. Substantial correspondence between the allegations in the petition and the proof, is all that is required. There was no substantial variance between the allegation that when F. H. Hugen struck the ground he was shocked and shaken out of his right mind, and presently became senseless and unconscious, and the evidence that after falling F. H. Hugen spoke a few words to persons who came to his assistance and then, in a few minutes, became wholly unconscious. And, further, the ground of negligence alleged being the shoving or pushing plaintiff F. H. Hugen .off the platform of defendant’s cars by the porter, plaintiff would not be confined in his proof as to the effects of the injuries received by him to the precise language of his petition. (Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Texas, 631, 632.)

The testimony, admission of which is complained of in appellant’s sixth, seventh and eighth assignments of error, was properly admitted as res gestae. The statements of F. H. Hugen, according to the record, were made immediately after he received the injuries and while he lay upon the ground where he had fallen from the train, being unable to arise, and were made to parties who hastened to his assistance upon seeing him fall, and who at the time they saw him fall were not exceeding 80 yards distant from him, and evidently reached him within a very few minutes, at the outside not exceeding five minutes, and the statements were made by said plaintiff immediately upon these parties reaching him. The statements of F. H. Hugen were made in answer to questions which were not calculated to elicit or suggest any particular answer. The questions were only such as were prompted by the parties seeing the said Hugen fall from the cars to the ground and fail to get up, and the answers were such as would be prompted by the transaction, that is, by the manner or means which caused the said Hugen to be placed in the situation he was, and his statements were spontaneous, being verbal acts, or in other words, the transaction speaking through the party making the statements. (Galveston, H. & S. A. Co. v. Davis, 65 S. W. Rep., 217; Houston & T. C. Ry. Co. v. Weaver, 41 S. W. Rep., 848; DeWalt v. Houston, E. & W. T. Ry. Co., 22 Texas Civ. App., 403; Texas & Pac. Ry. Co. v. Robertson, 82 Texas, 660.)

The fact that the plaintiff testified differently on a former trial in reference to his physical or mental status at the time, or as to making any statement as” to the cause or manner of receiving his injuries, did not affect the competency of his testimony on the present trial, though it might be a matter for the consideration of the jury as to the effect to be given such testimony.

There was no error in the admission of the testimony complained of in appellant’s ninth assignment of error. It was proper for the plaintiff to prove that when the train reached Gause, his destination, he went to the front door of the car to open it and get out, but it was locked or otherwise fastened, in order to show the exercise of reasonable diligence on his part in attempting to debark from the train; and, further, this testimony was admissible as explaining a part of the transaction which led up to that part which culminated in the plaintiff’s being removed or falling from the car.

We overrule appellant’s tenth assignment of error, as no probable injury is shown to have resulted to appellant on account of the court’s permitting the witness Elliott to testify in rebuttal after he had been placed under the rule excluding the witnesses from the courtroom, and had violated such rule by remaining in the courtroom during the examination of other witnesses, especially in view of the fact shown by the record that the witness unintentionally violated the rule on account of being hard of hearing, and b.elieving- that he had been discharged therefrom, and had heard but little of the evidence, and plaintiff’s counsel were unaware of his presence in the courtroom during the examination of other witnesses. The permitting of a witness who has remained in the courtroom and heard some of the testimony, to testify after the rule was invoked is within the sound discretion of the trial court, and will not be revised on appeal, unless an abuse of such discretion is apparent; and in this case it does not appear from the record that the court below abused its discretion in permitting said witness to testify. (Garlington v. McIntosh, 33 S. W. Rep., 389.)

Appellant’s eleventh assignment of error is too general to require consideration. The second paragraph of the court’s charge complained of in appellant’s twelfth assignment of error correctly instructs the jury as to the degree of care due by appellant to appellee E. H. Hugen as a passenger on its train, and is not subject to any of the criticisms urged . against it by appellant. It is well established by authority that a common carrier of passengers is required to exercise towards its passengers that high degree of care that a very cautious and prudent person would, use under the same or similar circumstances, and that the want of such care would be negligence, and the charge complained of so instructs the jury. The plaintiff pleaded that he was a passenger ón the train of appellant at the time of the accident, and there was evidence adduced on the trial in support of such pleading. This authorized the charge of which complaint is made. If appellant desired an instruction defining the degreé of care owed by it to appellee, F. H. Hugen, upon the theory that the relation of carrier and passenger did not exist between it and said appellee at the time of the accident, it was its duty to request such instruction; and it requested no instruction upon that theory, except special charge Fo. 2, which was given by the court. The paragraph of the charge of the court complained of being authorized by the pleadings and evidence, and the charge defining the degree of care required of plaintiff under the circumstances being correct, the position of these respective instructions in the main charge of the court was unimportant.

Appellant’s requested special charge Fo. 2 which was given by the court, and its requested special charges Fos. 3, 5 and 6, which were refused, appear to have been formulated upon the assumption that plaintiff was a passenger at the time of the accident; and in our opinion were calculated to invite the court to the view that plaintiff was a passenger at that time.

Appellant’s thirteenth and fourteenth assignments of error complain in a general way of the court’s charge in defining negligence as applied to the plaintiff, and in defining contributory negligence, but fails to point out any substantial defect in either of such definitions. In our opinion the charge was sufficient in both respects. As above stated, the court was authorized by the pleadings and the evidence to instruct the jury as to the degree of care due by appellant to plaintiff as a passenger; and if appellant desired the issue as to whether plaintiff was a passenger at the time of his injury submitted to the jury, it should have requested an appropriate instruction submitting same.

There was no positive error in the fourth paragraph of the court’s • charge, complained of in appellant’s sixteenth assignment of error; and there was no inconsistency between -it and the appellant’s special charge Ho. 2, given by the court, which alleged inconsistency is complained of in appellant’s seventeenth assignment of error. The fourth paragraph of the court’s charge instructed the jury to find for the defendant if they found that the negligence of plaintiff caused or contributed to his injury; but they were not required to find for plaintiff unless they so found, nor were they instructed that they could not find for the defendant, unless they so found. The special charge, in effect, authorized the jury to find for the defendant, if plaintiff voluntarily removed himself from the train, independent of any negligence on his part in doing so. While it was in this respect more favorable to defendant than the paragraph of the court’s charge above referred to, it was not inconsistent with it.

There was no error in the refusal of the court to give appellant’s requested special instruction Ho. 1. The subject to which it related was fully covered by its special charge Ho. 2, which was given to the jury. The main charge of the court instructed the jury, in effect, that they could not find for the plaintiff unless they found that he was pushed from the train by the porter, and appellant’s special charge Ho. 2 given at its request, instructed the jury that if they believed from the evidence that plaintiff, while the train was in motion, voluntarily went upon the platform and while there either fell or voluntarily stepped, jumped or otherwise removed himself from the train in order to avoid being carried beyond the station, and sustained some or all of the injuries of which he complains, then they should find for the defendant. Hence we do not think the refusal of the court to give appellant’s requested charge Ho. 3 was reversible error; especially in view of the fact that it reasonably appears from the record that the special charge Ho. 3 was requested after its special charge Ho. 2 had been requested and given by the court, which latter special charge is substantially the same as the former, except it does not contain the language “and that he was not pushed, shoved or otherwise caused to leave the train while it was in motion by the porter John Roberts.” We think that by giving the special charge Ho. 3, after having already given special charge Ho. 2, the court would have been directing the attention of the jury too frequently to and making too prominent the claim of appellant that plaintiff had voluntarily removed himself from the train. And, further, appellant having previously requested a special charge upon the subject, which was given, was not entitled to another upon the same subject, although the latter was more specific than the former.

The court below did not err in refusing to give appellant’s special requested charges Hos. 4, 5 and 6, or either of them. The master is liable for what his servant does in the course of his employment, though the particular act was unauthorized and unlawful. (Texas M. Ry. Co. v. Dean, 12 Texas Ct. Rep., 434; Paraffine Co. v. Berry, 15 Texas Ct. Rep., 660.) The uncontroverted testimony shows that the porter was on duty and assisting in the operation of appellant’s train at the time the testimony shows that he pushed the plaintiff F. H. Hugen off the train; and appellant would therefore be liable for the consequences of such act. As held in Railway Co. v. Dean, supra, a passenger contracts, not only for transportation, but for good treatment and against personal rudeness and every wanton interference with his person either by the carrier or its agents employed in the management of the conveyance, and a passenger is under the protection of the carrier and those of its servants to whom it commits the performance of the various duties to the passenger which it assumed by the contract.

While there is a sharp conflict in the testimony, we think it is amply sufficient to support the verdict and judgment. The verdict of the jury involves findings that the appellant was guilty of the negligence alleged against it in plaintiff’s petition and submitted to the jury by the charge of the court; and also that the plaintiff F. H. Hugen was not guilty of contributory negligence in any of the respects alleged in defendant’s answer. We find that these findings of fact by the jury are each supported by the evidence, as shown by the record. While the verdict in favor of F. H. Hugen is large in amount, we are not prepared to say that it is excessive, in view of the great and continued suffering experienced by him, and the very serious character of the injuries received, making him an invalid and cripple for life, and materially shortening its period.

We do not think there was any error in the action of the court below in allowing the remittitur of $1,030 to the judgment in favor of F. Hugen, and allowing the judgment to stand for the balance of $470, as the evidence showed the plaintiff to be entitled to that amount on account of the services rendered his son while sick, and expenditures incurred or paid by him on account of the son’s injuries and sickness, which amount was ascertainable from the evidence by simple calculation.

No reversible error being pointed out in the record, the judgments of the court below are affirmed.

Affirmed.

OPINION ON MOTION POR REHEARING.

In the original opinion in this case, in considering appellant’s twelfth assignment of error, we used this language: “Appellant’s requested special charge No. 2, which was given by the court, and its requested special charges Nos. 3, 5 and 6, which were refused, appear to have been formulated upon the assumption that the plaintiff was a passenger at the time of the accident, and, in our opinion, were calculated to invite the court to the view that plaintiff was a passenger at that time.” An inspection of these requested charges as copied in the record discloses that they are each preceded by the statement that it was requested after the general charge of the court was delivered to the jury, which would indicate that said requested charges were not presented to the court for its action upon same until after the main charge had been delivered to the jury; and hence could not have had any influence upon it in reference to any instruction embraced in the main charge. This being true, the language quoted above was not justified by the record, and we therefore withdraw and strike out from the original opinion in this case the language above quoted.

We, however, take occasion to say that, in our opinion, appellant could not have been prejudiced by the charge complained of in its twelfth assignment of error, because the court in the fourth paragraph of its charge limited plaintiff’s right to recover to a finding by the jury that his injuries were caused by his being pushed or shoved from the platform or steps of defendant’s car by its negro porter. In our opinion such an act upon the part of appellant’s servant would, as matter of law, show a failure to exercise ordinary care for the safety of plaintiff, to which degree of care he was entitled, although his relation as passenger had terminated.

The motion for rehearing is overruled.

Writ of error refused.  