66 Tex. 116 | Tex. | 1886
The principle which imposes upon a railway company the duty of keeping in safe condition its premises for the use of a friend of a passenger, aiding him to enter or leave the train, now well established by adjudicated cases (Hamilton v. R’y Co., 64 Tex., and cases cited) can have no definition not fairly
The court instructed the jury that if the plaintiff knew the platform was defective, but it was necessary for him to use the defective part, he would be entitled to recover. It is obvious that the word necessary-was not used by the court or understood by the jury in its proper and usual signification. It was not necessary for the plaintiff to seek the voice he had heard; it does not appear that it was necessary for him to use the route he followed. If the word was used in its correct sense, the verdict is unsupported by the evidence. In its true signification the plaintiff was deprived of the benefit of the law applicable to the case; a severer rule was imposed upon him than could be required by law, and a stricter one than his facts could fulfill. The correct test of the liability of the plaintiff to the charge of contributory negligence was whether a prudent person, in the same situation and with the
knowledge possessed by the plaintiff, would have done what he did. See authorities below. He might have the right to do what was done, whether it was necessary or not. If the word was used in the sense of important, then he might be guilty of contributory negligence in going. over that part of the platform, whether necessary (in the sense of important) or not. In the real meaning of the word, the testimony does not sustain the verdict under the charge.. In any other meaning, the charge does not present to the jury at all the law of the case. In either view, the judgment cannot be sustained. Murphy v. Railway Company, 46 Tex., 356; Beach on Con. Neg., 258; note to City of Erie v. Magill, 47 Am. Rep., 744.
In the brief of counsel ¡for appellant the numerous questions necessarily disposed of adversely by the verdict, but generally uselessly presented for review to this court, are properly omitted, while only the points of law really open for revision are clearly presented in accordanee with the rules.
Reversed and Remanded.
[Opinion delivered April 23, 1886.]