153 S.W.2d 343 | Tex. App. | 1941
This suit was instituted by Eugene Tur-bin and his wife, Senobia Turbin, against the San Antonio Public Service Company, a corporation, seeking to recover damages for personal injuries alleged to have been sustained by Senobia Turbin on or about January 13, 1940, when she fell while attempting to alight from a bus owned and operated by the San Antonio Public Service Company.
The case was submitted to a jury upon special issues and, upon the findings made by the jury, judgment was entered in favor of the Turbins against the San Antonio Public Service Company in the sum of $900 from which judgment the San Antonio Public Service Company has prosecuted this appeal.
It was the theory of the plaintiffs below that Senobia Turbin was injured while a passenger on the bus as she was attempting to disembark therefrom, on the other hand, it was the theory of the Public Service Company that, if Senobia Turbin was injured, the accident occurred after she had disembarked from the bus and after she had ceased to be a passenger on said Public Service Company bus. The trial court, in submitting the case to the jury, assumed that she was a passenger on the bus at the time she was injured and instructed the jury, in effect, that the bus company, being a carrier of passengers, was charged with a very high degree of care toward Senobia Turbin. The definition of negligence given by the court reads as follows:
“ ‘Negligence,’ when applied to a common carrier of passengers means a failure to exercise, -for the safety of its passengers, the high degree of care which a very careful and prudent person, skilled in the business, would have used under the same or similar circumstances.”
The court did not instruct the jury as to when a person would cease to be a passenger upon the bus.
We are of the opinion that the evidence in this case was sufficient to raise a jury question as to whether Senobia Turbin had ceased to be a passenger on the bus at the time she received her injuries. It is unquestionably the law that where a passenger has gotten down from a bus and is safely on the pavement they are no longer passengers. El Paso Electric Company v. Ludlow, Tex.Civ.App., 219 S.W. 619; Wittkower v. Dallas Ry. & Terminal Co. et al., Tex.Civ.App,, 73 S.W, 2d 867.
The trial court should have in some way instructed the jury when Seno-bia Turbin would have ceased to be a passenger upon the bus and also that the company would only be required to exercise ordinary care toward her after she had ceased to be a passenger.
The trial court was in error in assuming that Senobia Turbin was a passenger at the time she was injured and in instructing the jury in the manner in which he did with reference to the degree of care which the company owed to her at the time of her injury. Dallas Rapid Transit Co. v. Payne, 98 Tex. 211, 82 S.W. 649; Northern Texas Traction Co. v. Nicholson, Tex.Civ.App., 188 S.W. 1028.
For the error pointed out, the judgment will be reversed and the cause remanded.