73 Tex. 311 | Tex. | 1889
The appellee brought this suit against appellant to recover damages for a personal injury. The case made by his own testimony was that he purchased a ticket and took passage from Trinity Station to Conroe on a train upon a railroad then operated by the appellant company; that just as the arrival at Dodge, an intermediate station, was announced he asked the conductor how long the train would stop at that station, and was answered that it ivould stop five minutes. Dpon the arrival at that station he left the cars to inquire for a letter, .and he had gone but a few steps when he saw the postmaster and called him and made the inquiry and received the answer that there was none for him. About that time he heard the train start and ran to get aboard. He reached it about midway of the rear coach and as it passed he seized the hand rail of the rear end of the car, and thereupon the train seemed to give a jerk and threw him upon the track and injured him. The conductor of the train testified that he did not tell plaintiff that the train
The court charged the jury in effect that if the conductor told the plaintiff that the train would stop five minutes at Dodge, and then moved: the train before the time had elapsed, this was negligence on part of the company, and refused an instruction asked by the defendant to the effect, that the jury in arriving at their verdict should not take into consideration, any testimony tending to show that plaintiff asked the conductor how long the train would stop at Dodge or the conductor’s reply that it would stop five minutes. The giving of the former and the refusal of the latter charge are complained of in separate assignments of error. If the plaintiff had made known to the conductor his desire to stop at the station, and the conductor had expressly or impliedly promised him to wait five minutes, or if the conductor upon his asking the question told him that the-train would stop a designated time, and the conductor subsequently knew that he had left the train and moved it without giving him time to reenter the car, the plaintiff would have had a different case—one, however, which we do not feel called upon to determine on this appeal and upon which we express no opinion.
The contract of a railroad company with a passenger is to carry him to his point of destination. He is not expected to leave the cars at intermediate stations, and the carrier does not engage to afford him an opportunity to do so except at the usual stopping places for refreshments.
It follows, we think, that when a conductor is merely asked how long a. train will stop at a certain station, he is not presumed to know that it is. the desire of the inquirer to alight and to consume the time of the halt on business away from the cars. Such questions are frequently asked by passengers from idle curiosity or other motives, and it would be unreasonable to hold that by answering them the conductor assumes for the' company the obligation to watch the movements of the passenger or unnecessarily delay the train in accordance with the answer. We think the obligation of the defendant was neither increased nor diminished by the conductor’s answer in this case, if he made the answer, and that the court erred in holding to the contrary.
According to the rule announced by this court in the case of Railway Company v. Spicker, 61 Texas, 427, the court also erred in its charge as to the burden of proof of contributory negligence. ‘f When the plaintiff’s own case shows a suspicion of negligence, then he must clear off such suspicion.” Id. The law will not presume that a plaintiff has. been negligent in the absence of some evidence tending to show it; but when his evidence tends to create the presumption, then he must rebut, the presumption by sufficient proof to produce a belief in the minds off the jury that negligence on his part did not in fact exist.
Reversed and remanded.
Delivered March 12, 1889.
