Houston & Texas Central Railroad Company v. J. A. Anglin, Jr., 99 Tex. 349

GAINES, Chief Justice. J. A. Anglin, Jr., a minor, was riding in a laundry wagon, which was being driven by a companion. At a crossing of the track of the Houston & Texas Central Railroad Company the wagon was struck by an engine of the company and young Anglin was thrown out and injured. His father, J. A. Anglin, brought suit against the company to recover damages to himself; and the son, through his father as his next friend, also sued the company to recover damages for his own personal injuries.

The cases were tried together, presumably by agreement of counsel, and resulted in a verdict and judgment for each of them. The Court" of Civil Appeal reversed the judgment in favor of the father and remanded that cause; but affirmed the recovery for the son. This writ of error was sued out to reverse the judgment in favor of the son. It is first complained, that the court erred in refusing to compel the plaintiff, J. A. Anglin, Jr., who had given testimony in his own behalf and during the course of his examination had voluntarily exhibited his breast to the jury, to again exhibit it to Dr.

Bennett, a witness for the defendant. Dr. Bennett had testified, that he examined the plaintiff a short while after the accident and that his breast was then deformed; and it was proposed to show by the witness after examining the alleged injured part of the plaintiff that the same condition which existed at the time of the trial existed immediately after the accident. The counsel for the defendant in error objects to the consideration of the assignment for the reason, that in the brief in the Court of Civil Appeals it is not followed by a sufficient proposition as required by the rules.

We think, however, that the proposition though unnecessarily prolix, manifests clearly the point relied upon to show error in the ruling. In the case of the Chicago & Rock Island & Texas Railway Company v. Langston (93 Texas, 709), the plaintiff who had lost her feet in a railroad accident and brought suit to recover for her injuries, in course of her examination as a witness exhibited her amputated members to the jury and they were examined by medical experts of- her own selection, who testified in relation thereto.

Counsel for the defendant moved the court to require her to exhibit them again for examination by medical experts of their selection; but the motion was overruled. Upon appeal to the Court of Civil Appeals the majority of the court held, that this was error. The other justice dissented. The question and another upon which there was also a dissent were certified to this courf. In the original opinion we answered the other question but declined to answer that in reference to compelling the plaintiff to exhibit her limbs a second time.

A motion having been made asking us to reconsider and answer the latter question, we sustained the opinion of the majority of the Court of Civil Appeals on that point. We gave no reason for our conclusion, but gave the matter very careful consideration. The views which prevailed with us are well stated in the following remarks of Mr.

Justice Stephens, who spoke for the majority of the Court of Civil Appeals: “But inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, we have finally cohcluded that the case presents a different question from that so often considered, and that its solution should not be influenced by our cherished Anglo-Saxon principle of personal security.

In our opinion, it would be a perversion of that principle to apply it in a case like this, where the plaintiff, unfortunate and pitiable though she be, voluntarily lays bare before the court and jury her afflicted members for the inspection and examination of the judge, jury, and advocate. For all the purposes of the trial, she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court of the wounded parts.

She thus by her own voluntary act conferred upon the court jurisdiction to compel what otherwise she might have refused to submit to. Having conferred the jurisdiction, she could not take it away at pleasure without trifling with the court. It- lasted as long as the trial lasted.” The rule acted upon in that case that where a party has once exhibited his person to the jury to show the extent of his injuries, he may be required during the course of the trial to reexhibit them has never been modified by this court. In Houston & Texas Central Railroad Company v. Cluck (8 Ct.

Rep., 681), we held that where a party had not voluntarily exhibited his person to the jury, a court had no power to compel him to do so. But it is obvious that that case presented a very different question from that involved in Railway Company v. Langston, supra, and that the decisions in the two cases are in no wise inconsistent. We are unable to distinguish between the point in this case and that in the Langston case. If the plaintiff had been compelled to exhibit again his breast, in the presence of Dr.

Bennett, and the witness after examining had been .enabled to say that he saw.no difference between its condition at such time and what it was at the time of the accident, the testimony would have been material. We conclude that the court erred -in its ruling in this particular and that for this error the judgment must be reversed. Error is also assigned upon the following charge of the court: “In order to defend against liability on account of alleged contributory negligence on the part of the plaintiff, J. A.

Anglin, Jr., the burden of proof is on defendant to prove, by a preponderance of the evidence, that the plaintiff, J. A. Anglin, Jr., was guilty of contributory negligence under the law by the court, and herein defined.” In passing upon a • similar charge in the case of the Gulf, Colorado & Santa Fe Railway Company v.

Hill, 95 Texas, 638, this court in answer to a certified question said: “If the plaintiffs’ evidence made it necessary that they should explain the conduct of the deceased to exculpate him from the charge of contributory negligence, it was improper for the court to charge the jury that the burden of proof was upon the defendant to establish the defense of contributory negligence, because such charge was calculated to lead the jury to believe that they should consider alone the evidence offered by the defendant upon that issue. Citing Texas & Pacific Railway v.

Reed, 88 Texas, 447.” But the case of Gulf, Colorado & Santa Fe Railway Company v. Howard (96 Texas, 582), is authority for the proposition that such a charge, though erroneous, is not prejudicial provided it be corrected by other parts of the same charge. Since this judgment is to be reversed, and since it is easy to avoid the error upon another trial, we deem it an unnecessary labor to inquire, whether the charge in question falls within that rule.

It is also insisted, that the evidence of the plaintiff and of his own witnesses exposed him to a suspicion of contributory negligence and that therefore the burden was upon him to show that he was not guilty of such negligence.

That rule was at one time recognized by this court as the law of this state; but it is now definitely settled that in every case in which the plaintiff seeks to recover of defendant on the ground of negligence of the defendant and the defendant relies upon the defense of contributory negligence, in order to maintain that defense, it must appear by a preponderance of the evidence that the plaintiff was guilty of such negligence. For the error first pointed out, the judgment is reversed and the cause remanded. Reversed and remanded.