H. & T. C. R'y Co. v. Devainy

Delany, J. Com. App. The first assignment of error questions the first paragraph of the charge in which the jury were told that under the circumstances shown by the evidence the conductor was justifiable in putting the plaintiff off the train, but was required to put him off at a safe place. Whether this charge was correct or not, the appellant at least cannot complain of it and appellee does not object to it. When we consider that the plaintiff was on the car by a mistake which was caused by the negligence of the brakeman; that the mistake was discovered within three hundred yards or less of the depot; and that the facts were fully explained to the conductor; and considering further the darkness of the night, and the apparent danger to the men of being put off at such ia place and time, we may well question whether it was not the duty of the conductor to take the plaintiff back to the depot. We do not express any opinion on the question, but we.feel warranted in saying that appellant has no ground of complaint against this part of the charge. There is no merit in the second or in the third assignment. The evidence is sufficient to sustain the ’mt. The fifth assignment is that th urt erred in overruling the motion for a new trial. The only r ,cable feature of this motion is the allegation of newly discove , evidence, viz., that of J. H. Miller. In the first place Miller a pears to have been one of the employees of the company. He was at the depot at the time of the accident, and was one of the two men who went with Eush to carry the plaintiff from the ravine to the depot after he was hurt. It would seem that, with proper diligence, this testimony might have besh discovered before the trial. In the second place, this evidence is merely cumulative, and thirdly, it is by no means certain or highly probable thai if it had been introduced it would have changed the [175] result. See Hatchett v. Conner, 30 Tex., 104; Frizzell v. Johnson, 30 id., 31. The defense proceeds upon the theory that if the plaintiff attempted to walk back to the depot on the railroad track, this was an act of negligence on his part and he cannot recover. How, even if we admit this to be true as a general rule, it may well be doubted whether it is true in this case. It was only a few hundred feet to the depot. The circumstances were peculiar. The men were utterly confounded at the thought of being put off. The plaintiff told the conductor that “ it was a wrong thing to put them off in that way.” The conductor admits that he could not make them understand why they were put off. It was so dark that they could not see éven the ground on which they were to walk. They were not told that there was a trestle work on the railroad track or a ravine under it, but the conductor says he showed them the dirt road by the light of his lamp and told them to take that and “ to look out for openings in the road.” What these words may mean we do not pretend to know, but they must have been intended as a warning or they would not have been spoken. Thus when the train passed on the men were left standing there in the darkness. Before them, or near them, was a dirt road which they could not see, but in which they were told there was danger. There was also the railroad track, which was equally invisible, but as they were not warned of any danger there they might (and not without reason) suppose that their safest and only way to get back was by that route. Without attempting to determine what the men should have done in this dilemma, we have no hesitation in concluding that they should not have been placed in such a position. Our opinion is that the judgment should be affirmed. Affirmed. [Opinion adopted January 30, 1885.]