292 S.W. 966 | Tex. App. | 1927
(after stating the facts as above). Appellant insists the burden was on appellee to prove, and she did not, it asserts, that it was necessary for her to have assistance in descending the stairway; that it knew it; and that its failure to render such assistance was the proximate cause of her falling as she did. Therefore, it insists further, the trial court erred when he refused its request that he instruct the jury to return a verdict in its favor.
We think the contention should be overruled, for, notwithstanding testimony showing appellee to have been a strong, healthy woman, well able to take care of herself under ordinary circumstances, we are not prepared to say there was no testimony on which to base a finding of actionable negligence on the part of appellant. We agree tha't in ordinary cases, when a carrier has “provided (quoting from appellant’s brief) reasonably safe facilities for its passengers to go from its depot to its train,” it does not “owe them the absolute duty to render them assistance” in using such facilities. B.ut it is also the law that, “if, however, the circumstances of a particular case make it reasonably apparent that such assistance is needed, it becomes the duty of the carrier to furnish the same.” Wisdom v. Ry. Co. (Tex. Com. App.) 231 S. W. 344.
The circumstances which we think the jury had a right to say distinguished this case from the ordinary one were; (1) That appellee, though a strong, healthy woman, was 64 years of age, weighed ITS or 180 pounds, and was incumbered with her almost helpless husband, and luggage consisting of a shoe box, a satchel, and a heavy bundle of clothing; and (2) the stairway it was necessary for her to descend to get to her train, though free of obstructions, and not defective structurally, was 5 or 6 feet wide, and consisted of 40 steps covering the distance of more than 40 feet from the top to the bottom thereof.
The jury reasonably might have thought •that, having to hold her husband with one hand and the satchel and heavy bundle with the other, it was apparent that appellee could
Appellant seems to think tbe testimony of appellee as to ber ability to take care of herself, testimony showing, as appellant insists it did, that sbe did not request assistance in going down tbe stairway, and ber testimony that she did not know what caused ber to fall, was conclusive against a right in appellee to recover anything of it. But we think, when tbe testimony of appellee appellant refers to as to ber ability to take care of herself is considered in connection with her statement to Mrs. Cole that she “couldn’t get down without assistance,” ber declaration as sbe started down tbe stairway that “this looks awfully scary,” and ber reply to tbe question propounded to ber, set out in tbe statement above, that sbe did need assistance in going down tbe steps, it is fairly subject to quite a different construction from that given to it by appellant. As to tbe failure of appellee (if she did fail) to request assistance in going down tbe stairway, it was merely a circumstance to be considered in connection with tbe other circumstances of the case in determining whether appellant was guilty of negligence as charged against it or not. Ry. Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 895, 23 Am. St. Rep. 308. Tbe fact that appellee did not know, she testified, ■ what caused ber to fall is, of course, conclusive of nothing. Tire cause, and only • cause, suggested by tbe testimony, tbe jury had a right to say, was tbe failure of appel-. lant to discharge duty it owed her under tbe circumstances to assist ber in going down tbe stairway.
Appellant cites Ry. Co. v. Wiuvar (Tex. Civ. App.) 257 S. W. 667; Flory v. Traction Co. (Tex. Civ. App.) 89 S. W. 278; Ry. Co. v. Work (Tex. App.) 100 S. W. 962; Ry. Co. v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96; Ry. Co. v. Garner, 52 Tex. Civ. App. 387, 115 S. W. 273, and Wisdom v. Ry. Co., hereinbefore referred to, as cases supporting its contention. We have examined all of those eases, and think none of them support tbe contention, unless tbe Wiuvar Case should be treated as an exception. There tbe Court of Civil Appeals said:
“It may become the 'duty of the carrier to assist its sick, weak, old, or disabled passengers from the train, but not so for stx*ong, healthy females or other persons well able to care for themselves.” *
We are not prepared to say that tbe statement just quoted from tbe opinion of the court in tbe Wiuvar Case is incorrect as applied to tbe facts of that case, but that it is not correct in all such cases is shown by the holding of tbe Commission of Appeals in tbe Wisdom Case, hereinbefore referred to, and by tbe bolding in others of tbe eases cited by appellant.
It follows from what has been said, we think,-the trial court did not err when be overruled appellant’s objection to tbe part of tbe charge to the jury set out in tbe statement above, unless same was on the weight of tbe evidence. Tbe contention that tbe instruction was objectionable on that ground is on tbe theory that it was assumed therein that appellee needed assistance in descending tbe stairway. As we construe it, the instruction contained no such assumption. Without violating same, tbe jury reasonably could not have found in appellee’s favor as they did, unless they believed appellant’s failure to assist appellee in descending tbe stairway was negligence, as defined in another part of tbe charge; and they reasonably could not bave found appellant guilty of negligence in that respect unless they believed that under tbe circumstances of tbe case, as shown,.by tbe testimony, it owed appellee tbe duty to so assist ber. McCallum v. Electric Co. (Tex. Civ. App.) 280 S. W. 342.
It is'clear, we think, that tbe court did not err when he refused to give to tbe jury appellant’s special charge No. 2 set out in tbe statement above. In tbe “physical” condition appellee was in she might .not bave needed assistance in going down the stairway if she bad not been incumbered as she was, and yet tbe jury had a right to say that so incumbered sbe did need such assistance. While the word “condition” in appellant’s requested special charge No. 3 was not limited as it was -in tbe other refused special charge referred to above, we think it not unlikely tbe jury would have construed it as if so limited, and so been misled into believing they should not consider tbe character of the stairway and the way appellee was incumbered in determining whether sbe needed assist* anee in descending tbe stairway or not. Therefore, and because we think tbe jury bad a right to say appellant ought to bave known, if it did not, that appellee needed such assistance, we think tbe trial court did not err when be refused to give said special charge No. 3 to the jury.
Appellant insists that, if it was not error for tbe court to refuse to give said special charge No. 3, because of its form, it was error entitling it to a reversal of tbe judgment for tbe coiirt when be refused tbe requested charge to fail to prepare and submit to tbe jury a proper charge supplying what it says
Whether, if appellee needed assistance in descending the stairway, appellant knew, or ought to have known it, was not an issue apart from the question as to negligence or not on its part, but was involved in the determination of that question. Hence it cannot be said the instruction the trial court gave the jury was erroneous, in that they were not therein told that appellant must have known or have been chargeable with knowledge that, appellee needed assistance in descending the stairway. Without disregarding the instructions given them, the jury reasonably could not have found appellant guilty of negligence, as they did, without first finding that it had, or, in the exercise of the care it owed appellee, should have had, such knowledge.
If, however, the instruction complained of was not affirmatively erroneous, as we have determined, but was negatively so in the respect urged by appellant, it has no right to complain of the refusal of its erroneous special charge intended to supply the supposed omission, nor of the failure of the court to prepare and give the jury a proper charge covering such omission, because it did not object 'to the instruction given the jury on the ground that it was so negatively erroneous. Ry. Co. v. Thompson (Tex. Civ. App.) 222 S. W. 2S9; Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183. In that state of the ease, as we understand it, the rule stated as follows in the first one of the two cases just cited is not inconsistent with anything said in the other one: ‘
“If an issue made by the pleadings and evidence has not been submitted at all. a requested instruction, though defective, is sufficient to call .the court’s attention to the matter and require the submission of a correct charge on the issue. But if the issue has been submitted generally, the party wishing a more specific charge must submit a correct instruction in order to be entitled to complain on appeal.”
As we view the record, there is no error in the judgment. Therefore it is affirmed.
On Appellant’s Motion for Rehearing.
It may be this court erred in holding that the trial court had a right to refuse appellant’s requested special charge No. 3 on the ground that, if given, it might mislead the jury, as suggested in the opinion, but, if it did, a correction of the error would not require a change in the ruling made by this court with reference to said special charge, for the trial court had a right to refuse the charge on the other ground specified in said opinion, to wit, that the charge was incorrect, in that it forbade a finding by the jury in appellee’s favor, unless they believed appellant knew it was necessary for appellee to have assistance in going down the stairway, whereas, other conditions concurring, the jury would have had a right to find for ap-pellee if they believed from the testimony that appellant ought to have known, if it did not, of such necessity. Ry. Co. v. Williams (Tex. Civ. App.) 183 S. W. 1185.
Other rulings made in disposing of the appeal are believed to be correct.
The motion is overruled.
