120 S.W. 254 | Tex. App. | 1909
The action was brought by appellee for damages for personal injuries alleged to have been sustained by him in the attempt to save Mrs. Parker from being injured by appellant's passenger train.
The petition alleged that Mrs. Parker, an acquaintance of plaintiff, had her ticket and was in the waiting-room of defendant's station at the town of Myra, intending to leave for Gainesville, when the passenger train whistled, and that she then, as was the custom, went out of the north door of the waiting-room and proceeded westwardly along defendant's platform towards the place where first-class passengers were accustomed to board the train, along the route provided for her on the platform for that purpose; that it was raining hard and she had to bow her head on account of the rain which was coming from the north and west; that as she was thus proceeding along the route provided for her, and which she was invited to take, which led her between a pool of water on the platform and the south rail of the track, she was struck by defendant's engine, tender or cars, part of which extended over the platform and struck her and knocked her against plaintiff. That plaintiff was following along at the side of Mrs. Parker after she left the waiting-room, and he noticed her as she started to follow said passageway between said pool and the track, and saw her *20 threading her way with her head bowed, and saw that the engine, tender or cars were likely to strike her, whereupon he made a grab for her, or grabbed her, with the intention of rescuing her from her perilous situation, but before plaintiff could pull her clear of the train she was struck, and plaintiff was struck by her, or by the train, and hurled against the handles of some trucks and against the platform, and injured.
The petition alleged that a pair of trucks were left by defendant standing on the platform and in the way of the passage from the waiting-room to the place of boarding the train, said trucks being about three feet wide and six feet long, having two sharp handles at each end, the ends being to the east and west, and were located on the platform about two and one-half or three feet from the north side of the depot and three and one-half or four feet from the south rail of the main track; that between said trucks and the main track was a pool of water that had been allowed to form, extending from the trucks to the end of the cross-ties of the main track, leaving a narrow passageway from one to one and one-half feet wide between said pool and the south rail of the main track, for passengers to walk in.
The negligence of defendant was alleged to be: First, in constructing and maintaining the platform as aforesaid and inviting the public to use it, when the engine, tender and coaches on the main track extended two feet over on the platform; second, in leaving said trucks standing as they were, with the pool of water between them and the track, thereby leaving a space of about one to one and one-half feet wide for passengers to use, when such space was overlapped by the tender, engines and coaches passing; and third, in that the defendant's servants in charge of the train saw, or could have seen by the use of ordinary care, Mrs. Parker and her perilous situation, and failed to use the means at hand, and failed to warn her or halt the train. This last form of negligence was not submitted.
The answers, besides demurrers and general denial, alleged that even if the trucks and pool of water were there upon the platform, they were not the proximate cause of plaintiff's injuries, but that the proximate cause was the fact that Mrs. Parker negligently and suddenly stepped against the engine and was struck and thrown by the engine against plaintiff, who was close beside her. That defendant, in the exercise of that care demanded of a reasonably prudent person, did not, under all the circumstances, foresee, and could not have anticipated that any person would have been injured by stepping against the engine at the time and place Mrs. Parker did, by reason of the trucks and water, said water consisting of a small sheet as the result of a rain then falling, and that defendant ought not to be held liable for such an unlooked-for injury to plaintiff, which a prudent person would not have foreseen or anticipated. The verdict was for plaintiff in the sum of $5,000.
The case has been twice before the Court of Civil Appeals. 44 Texas Civ. App. 58[
The proposition under appellant's first assignment is as follows: "The evidence shows that Mrs. Parker, by reason of her own negligence, placed herself in peril, in this, that instead of following her husband, or passing to the other side of the trucks, or waiting at said shallow surface water until the engine passed, she suddenly and unexpectedly ceased following behind her husband and turned and instantly stepped toward and against said incoming train, thus placing herself in peril by her own negligence."
While we think that Mrs. Parker was not guilty of negligence as a matter of law, that question in this case is immaterial. If defendant's negligence contributed to the accident, and hers did also, both concurring, her negligence would have barred a recovery in a suit brought by her. But this is not a suit by her, and her negligence would not serve to defeat a recovery by plaintiff. The negligence of defendant, if as alleged, was unquestionably a proximate cause, and if Mrs. Parker was negligent also, both were concurrent causes. The result of these views is that defendant would be liable without reference to the negligence of Mrs. Parker. His own recklessness or contributory negligence would bar him; and this, as we understand defendant's answer, was not pleaded.
The other propositions under the first assignment add no strength to the assignment, and they are all overruled. Our conclusion of fact above stated, together with what has been said, requires us to overrule the second, third and fourth assignments of error.
The fifth assignment complains of the refusal of this charge: "If you find from the evidence that defendant was negligent in permitting the sheet of water to be on its platform, yet if you find from the evidence that defendant, its agents and servants could not have foreseen or anticipated that injury would result to some one by reason thereof, and if you find from the evidence that while Mrs. Parker was going to said train, that she stepped to or toward or against said engine as it was passing her, and that said Harrison, in endeavoring to rescue her, was hurt and injured, you will find for the defendant."
The court charged the jury: "If you find from the evidence that the sheet of water on defendant's platform was the result of a recent rain, and that under the circumstances then and there existing that defendant was not negligent on account of said pool of water being there, then you can not charge defendant with negligence because it was there."
To have given the requested charge would have tended to lead the jury to believe that defendant might not be liable for the natural and ordinary results of allowing the pool to be there. As stated in El Paso S.W. Ry. v. Barrett, 46 Texas Civ. App. 14[
We overrule the sixth assignment which complains of the instruction that it was defendant's duty to exercise the highest degree of care that a very cautious, competent and prudent person would exercise under similar circumstances to provide for its passengers at Myra a safe approach to its passenger coach, and a failure to exercise such care is negligence.
As Mrs. Parker was a passenger at the time, there was no error in this charge. (San Antonio A. P. Ry. v. Turney, 33 Texas Civ. App. 626[
The eighth complains of this charge: "If you believe from the evidence that the defendant failed to provide a reasonably safe approach to its coach for passengers at Myra, and if you further find that such failure, if any, was negligence as heretofore defined herein, and that by reason of such negligence, if any, Mrs. John Parker, while approaching defendant's train to take passage thereon was struck by an engine of defendant, and that plaintiff, in making an effort to rescue Mrs. Parker, was himself struck and thereby injured, you will find for plaintiff."
The train which struck Mrs. Parker was going east. She testified: "We went out of the north door and went west. The coach for ladies to ride in always stops west of the door where we go out. The coach always stopped at the west end of the platform when the train was going east. We started along by the house, going west, starting to the coach." Other testimony was to the same effect, all, it seems, without contradiction. They were thus on the way to such point when the accident occurred. In view of this, the propositions directed against the charge have no force. In substance, they are that the charge was not applicable to the facts, because the train had not then stopped, and until it stopped it could not have been known where the approach to said coach would be or that these obstacles would be in the way, for no passenger would be expected to board a running train, and because defendant owed no duty to any one to provide a reasonably safe passway to its running trains, and because there was no negligence in having the trucks where they were until it was known just where the baggage car would stop.
The eleventh assignment is that the court erred in giving special charge number 4 requested by plaintiff, because the calling of the jury back, after they had retired to their room to consider their verdict, gave undue prominence to the issues made by said charge and *23 was calculated to and did cause the jury to render an improper verdict.
It is made to appear that just after the jury were conducted to their room, but before the papers had been taken from the table and before a foreman had been chosen, and before they had in any way discussed or deliberated on the case, the judge recalled them and gave them an additional instruction, being plaintiff's special charge number 4, which was as follows: "Even though you may find from the evidence that Mrs. Parker, for her own safety, failed to use ordinary care, that is, the degree of care a person of ordinary prudence would use under similar circumstances, yet if you find that the railway company failed to provide a reasonably safe approach for its passengers to its passenger coach at Myra, and that such failure, if any, was negligence, as negligence has been defined in the first section of the court's charge herein, and such negligence, if any, was a proximate cause of plaintiff's injury, you will find for the plaintiff."
This charge was in accordance with the views we have expressed, and the general charge which the court had just given contained no direct instruction to the effect that Mrs. Parker's negligence would not prevent plaintiff's recovery, and it was eminently proper that it should have been given in unmistakable terms. As plaintiff had delayed asking it until after the jury had retired, the court could have refused it without error. It was discretionary with him under the circumstances to give it or not. It was no abuse of discretion to recall them and give it, especially when it appears that they had barely reached their room, and had done nothing toward considering the case. We can see no more harm in what was done than if they had been given this additional instruction before they had left the court room. The assignment is overruled.
The twelfth, thirteenth and fourteenth assignments are disposed of by the conclusion of fact stated in the first part of this opinion. Judgment affirmed.
Affirmed.
Writ of error refused.