Houston, E. & W. T. Ry. Co. v. Lacy

HODGES, J. On the morning of November 28, 1910, at about 3 o’clock, E. W. Baey was struck and killed by appellant’s passenger train at the depot in the town of Timp-son, Tex. This suit was filed by his widow and children, who recovered in the court below a judgment for $2,500 as damages. The evidence shows that Lacy had gone to the depot, upon this occasion, for the purpose of taking the early morning train, and had purchased a ticket. The night was dark, and the weather was cold. For some reason the waiting room was not lighted or heated, and the passengers, including the deceased, were invited, or permitted, to sit in the agent’s office until -the train arrived. When the train approached, Lacy, with the other passengers, went out on the platform for the purpose of taking passage. In going to the place where the train usually stopped for passengers to get off and on at this station, it was necessary to pass over a platform and through a space between the train and the wall of the depot building. This space was about 15 feet wide. On this particular occasion, some mail sacks had been left by the appellant’s agent, on this platform, between the door of the agent’s room and the place where the passengers were to board the train. Lacy was seen to go out of the door, with his grip in his hand, and start down this passage for the purpose of boarding the train. He was struck by some part of the cars when he reached the point where the mail sacks were lying. Whether he fell over these sacks and against the car, or was struck by the ear and knocked where he was found, is not shown by the testimony. One witness testified to seeing him fall; but, as it was very dark, did not at the time know it was a man. When found, Lacy was dead, and his body was lying near the mail sacks. The first three assignments of error attack the ruling of the court in admitting in evidence the deposition of Mrs. Lacy, one of the plaintiffs. The particular objection urged went to the manner and form of taking the deposition, and should have been presented in the manner provided by statute. Bev. St. 1895, art. 2289. It does not appear that this was done, or that any objection was made within the time required by statute. There are no bills of exception in the transcript. Appellant relies, in presenting these assignments, exclusively on the exceptions shown in the statement of facts. Nothing is there disclosed that would indicate any error on the part of the court in overruling the objections made. The objections were based upon a state of facts, concerning which the court would have been compelled to hear evidence; and there is nothing to show that any such evidence was adduced or tendered. There is no merit in the objection that the pleadings and evidence did not support the verdict. The negligence charged was in leaving the mail sacks on the platform and in failing to have the depot lighted. The evidence amply sustains the verdict. The remaining assignments of error are without merit, and are overruled. The judgment of the district court is affirmed.