The Texas and Pacific Railroad Co. v. Robert Casey and Wife, 52 Tex. 112

Bonner, Associate Justice. It is contended by appellant (defendant below) that the action of the court in overruling its general demurrer was such fundamental error, apparent upon the record, as calls for a reversal of the judgment. Defendant neither excepted to this ruling nor assigned it as error. The plaintiffs averred substantially that the defendant-company was the owner of the train; was running it as common carriers of freight and passengers; that, with its consent, Mrs.

Casey entered the car as a passenger to Moore’s Landing; that the acting conductor in charge of the train wrongfully put her off at an improper place, to her damage. Under these allegations, it is to be presumed that the conductor was the agent of the company, as such an officer is expressly recognized by our statute, with authority in a proper case and in a proper manner to eject passengers from the train. (Paschal’s Dig., art. 4892.) In our opinion, the allegations in.the pleadings were sufficient, on general demurrer, to sustain plaintiffs’ cause of action.

The first, second, third, fourth, and fifth errors assigned present substantially the question that the testimony was not sufficient to sustain the verdict. The testimony was conflicting, with a preponderance in favor of defendant. As presented by the record, it would seem that the learned judge presiding would have been authorized to have granted a new trial.

As the jury and the court below have much better facilities to determine what weight should be given to the testimony than this court, under long-established rules of practice, we do not deem it proper, vffiere there is conflicting testimony, unless in a clear ease of error, to reverse a judgment upon a verdict approved belowr.

This rule, however, as to verdicts, docs not 'apply with the same strictness to trials in the District Courts; and wo deem it appropriate to say that the right to a new trial in a proper case is a valuable one given by law, and should be fearlessly enforced by presiding judges, as otherwise the ends of justice may often not be attained. The sixth error assigned is, that “ the court erred in its charge to the jury in this: that in defining the place where the conductor might have removed Mrs.

Casey, the court said ‘ such removal should be at a place or station usual for taking on and discharging passengers,’ when the statute does not so define the place where a conductor may lawfully put off a passenger who refuses to pay fare.” Our statute (Paschal’s Dig., art. 4892) provides that “if any passenger shall refuse to pay his fare or toll, it shall be lawfful for the conductor of the train and the servants of the corporation to put him out of the cars at any usual stopping - place which, the conductor may select.” The place selected in this instance was at a water-tank, and the testimony was conflicting as to whether passengers usually entered and left the train at this point.

We are of opinion, that by the words “any usual stopping-place,” in the above statute, is meant either a regular station or any other place which the company expressly, by public notice or otherwise, or impliedly by user for such purpose, had designated as a proper place for passengers to get on or off' its trains, and where they would, in consequence thereof, have the right to demand the exercise of this privilege.

It will be seen that these words are used in this latter sense in the next succeeding article, (Paschal’s Dig., art. 4893,) which provides that the company shall furnish sufficient accommodations for the transportation, at regular times, of such passengers as shall, within a reasonable time previously thereto, “ offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at sidings and stopping-places established for receiving and discharging way passengers,” &c. (Rev.

Stats., art. 4226.) The statute under consideration is intended for the protection both of the company and of passengers. Persons who designedly enter the cars not provided with either a ticket, pass, or money, with the improper intent to ride thereupon, when not authorized either by law or the regulations of the company, may be justly treated as trespassers. If the rights of none but this class were to be considered, we might be inclined to give the statute a more strict construction. But cases can readily be supposed in which persons thus enter the cars under a reasonably mistaken view of their rights.

To permit the company to eject such persons, who, perhaps, may be aged, infirm, or women and children, at a usual stopping-place for taking on wood or water only, which may be distant from accommodations or assistance, possibly at night or in inclement weather, would be a great hardship, to prevent which was doubtless one of the principal objects of the statute.

The seventh error assigned is, that “the court erred in its charge in this: that it did not correctly, and with sufficient definiteness, define the difference between punitive and actual damages, so that the jury could know for which they might find; nor did it lay down with sufficient distinctness the rule or measure of damages by which they should have been governed.” The charge embraced the subject of both actual and exemplary damages, and purported to lay down some measure of damages, and although it may be objectionable in the particulars indicated by the assignment, yet, under the practice of this court in civil cases, this would not be sufficient to reverse the judgment, as the attention of the court was not called to the alleged error, either by exception or by asking a proper charge.

The ninth error assigned is, that “the court erred in refusing a new trial, because the verdict of the jury is unjust as well as excessive, and because it is without evidence to support it.” We are not prepared to say that this alleged error is well taken. The legal effect of the allegations in the pleadings would have authorized a verdict for the amount of actual damages found; and the jury, under the charge of the court as applied to the evidence, were virtually restricted to actual damages.

It is the proper practice in cases of this character to instruct the jury to find separate verdicts, one as to the actual and the other as to the exemplary damages. But the failure to do this, when not excepted to nor the proper instruction asked, would not, of itself, be sufficient to reverse the judgment.

Although there was no direct evidence of the pecuniary value of the alleged damages, yet as to some of the grounds upon which they were sought, the physical pain, suffering, and anguish of the wife, they were not capable of being estimated by any positive money standard, and if the facts were true as found by the jury, we cannot say that they were so excessive as to authorize us to reverse the judgment.

The tenth alleged error—not assigned, but asked to be considered, because fundamental and apparent upon the record— that the husband was permitted to testify in behalf of the wife, if error, cannot be taken advantage of for the first time in this court. The testimony was admitted without objection, and no motion made to exclude. [Opinion delivered October 28, 1879.] We find no such error apparent of record as would authorize us to reverse the judgment of the court below, and the same is accordingly affirmed. Affirmed.