Rehearing
On Appellee’s Motion for Rehearing.
The judgment was reversed because we thought a very prudent person obstructing the aisle as appellant’s conductor did would not have anticipated that his doing so would result in injury to appellee’s wife, and that the conductor therefore should not be held to have been guilty of negligence. Combating this view of the case, appellee insists it appeared that the conductor did anticipate injury might result as it did to appellee’s wife from his act, and as supporting his contention calls attention to testimony of the conductor as .follows:
“At the time this woman fell, * * * I was right slap in the aisle, but not quite all of the aisle was taken up by me. The distance across that aisle was 27 or 28 inches. As to whether or not if I was standing there in that aisle as I said I was she didn’t have an inch to get by me on, I would have stepped out of the way and let her by, yes, sir; that is proper, and it is my duty to do that. If a lady is coming down the aisle it is my duty to step out and let the lady go by, and it is safer for our passengers for me to do that. No, sir; it is not my purpose to block the aisle when*774 people arc walking on it, and that would be dangerous if I did. If a person should bo coming right on to where I am standing, if a lady should be walking in the opposite direction from the way the train is going and meeting me, I would not block the aisle. I would be liable to unbalance the woman. Yes, sir; I would be liable to cause the woman to lose her balance, and she might fall. I have been a conductor a long time, and have done that.”
Lead Opinion
Keeping in mind the rule that required appellant's conductor to use the care a very cautious, prudent, and competent person would have used for Mrs. Steed's safety when he saw her walking toward him in the aisle of the car (Railway Co. v. Halloren,
The judgment will be reversed, and judgment will be here rendered that appellees take nothing by their suit against appellant.
"At the time this woman fell, I was right slap in the aisle, but not quite all of the aisle was taken up by me. The distance across that aisle was 27 or 28 inches. As to whether or not if I was standing there in that aisle as I said I was she didn't have an inch to get by me on, I would have stepped out of the way and let her by, yes, sir; that is proper, and it is my duty to do that. If a lady is coming down the aisle it is my duty to step out and let the lady go by, and it is safer for our passengers for me to do that. No, sir; it is not my purpose to block the aisle when *Page 774 people are walking on it, and that would be dangerous if I did. If a person should be coming right on to where I am standing, if a lady should be walking in the opposite direction from the way the train is going and meeting me, I would not block the aisle. I would be liable to unbalance the woman. Yes, sir; I would be liable to cause the woman to lose her balance, and she might fall. I have been a conductor a long time, and have done that."
The writer thinks the jury had a right to find from the testimony of appellee's wife that the conductor looked at her as she approached him in the aisle; that he saw her, notwithstanding his testimony to the contrary; and is inclined to think that the jury, having found so much, had a right to further find from the testimony (not objected to) set out above that the conductor anticipated that injury might result to appellee's wife if he obstructed the aisle as he did. If they might have so found, the writer thinks the conclusion the jury reached that the conductor was guilty of negligence was warranted, and, therefore, that the act of this court in reversing the judgment on the ground it did reverse it on was erroneous. However, the other members of the court think the testimony set out was without probative value on the issue of negligence vel non of the conductor, because a mere opinion of the witness on a hypothetical case, and for that reason incompetent as evidence. Henry v. Phillips,
Lead Opinion
(after stating the facts as above).
The judgment will be reversed, and judgment will be here rendered that appellees take nothing by their suit against appellant.
<S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes