Pullman Co. v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 08 June 1921
• Docket Number: (No. 215-3330.)
• Citation: 231 S.W. 741
• Parties: PULLMAN CO. v. GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

231 S.W. 741

PULLMAN CO. v. GULF, C. & S. F. RY. CO.

(No. 215-3330.)

Commission of Appeals of Texas, Section B.

June 8, 1921.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by John B. Scripture against the Gulf, Colorado & Sante Fé Railway Company and the Pullman Company, with cross-action by the Railway Company against the Pullman Company. The Court of Civil Appeals affirmed judgment for plaintiff against the Railway Company, but reversed the judgment for the Pullman Company as between it and the Railway Company (210 S. W. 269), and the Pullman Company brings error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Etheridge, McCormick & Bromberg, of Dallas, for plaintiff in error.

Lee, Lomax & Smith, of Fort Worth, and Terry, Cavin & Mills, of Galveston, for defendant in error.

KITTRELL, J.

While the controversy in this case as it is presented to us is between the two companies, the names of which appear in the title of the case, it was not an original action as between them. In the action out of which the case arose one Scripture was the original plaintiff, and the parties to this action were both defendants. Scripture was a passenger in a Pullman Company car attached to a train of the railroad company, and in stepping from the train to a box in alighting was injured. He made both corporations defendants, but before the trial actually began dismissed his action as to the Pullman Company. The railroad company had, however, made the Pullman Company a defendant by cross-action, praying that, in event of any recovery by plaintiff against it, it have judgment over against the Pullman Company for a like amount. There was a contract between the two corporations, the interpretation of which was to a large extent a controlling feature of the litigation; at least in the Court of Civil Appeals. In the district court of Denton county, in which county the injury occurred, plaintiff recovered a substantial verdict against the railway company, but a verdict was returned against the railway company on its cross-action against the Pullman Company. The Court of Civil Appeals of the Second District affirmed the judgment as to the railway company, but reversed it as between the two corporations (Gulf, C. & S. F. R. Co. v. Scripture, 210 S. W. 269). Both corporations applied for a rehearing, which was denied both. Writ of error was refused the railway company as between it and the plaintiff Scripture. The Pullman Company obtained writ of error on the ground that the Court of Civil Appeals erred in holding that the trial court erred in refusing the special charge asked by the railway company; its contention being that it was undisputed that the vestibule of the Pullman Coach was brilliantly lighted, all the witnesses so testifying, and the railway company so admitting in definite positive terms in its brief in the Court of Civil Appeals.

The ground of action set up by the plaintiff are correctly stated by the Court of Civil Appeals, as follows:

"Plaintiff charged negligence on the part of both defendants in failing to give him a reasonable opportunity to alight safely from said car; in failing to have sufficient light on the platform of said car; in failing to stop the train at Krum a sufficient length of time to enable plaintiff to safely disembark; in failing to have sufficient light on the ground or platform upon which plaintiff landed; in failing to assist plaintiff to alight; in failing to place the box upon which plaintiff was to step securely fixed on the ground; in failing to have the ground where the box was placed reasonably level and smooth, so that the box placed thereon would not overturn, etc."

The answer of the railway company to the allegations of the plaintiff consisted only of a general denial, and allegation of contributory negligence on the part of plaintiff, on three grounds, not necessary to set forth.

This statement is necessary in view of the contention of the parties before us as to the requested charge as to the light in the vestibule, and of the admission made by the railway company with reference thereto.

The allegations of the cross-action by the railway company were as correctly stated by the Court of Civil Appeals as follows:

"The defendant railway company pleaded that there was a contract existing between it and the Pullman Company by virtue of which the Pullman Company was to provide its own employees and servants for the collection of fares charged for the sleeper, and for the services of receiving and discharging passengers from said cars, and that by the terms of said contract the Pullman Company had agreed to indemnify and save harmless the railway company against all liability and claims for injuries to persons arising from the acts or omissions, whether negligent or wrongful or otherwise, of the employees of the Pullman Company in the line of their employment. It further alleged that, if it were true that plaintiff sustained the injuries alleged by him as the result of the failure to afford him a reasonable opportunity to safely alight from said sleeping car and train at Krum, or because of insufficient light on the platform or at the place he attempted to get off the car, or because a sufficient time was not allowed him to alight from the car, etc., said acts of negligence, if any, were the acts of the Pullman Company's employees."

The only assignments of error of the railway company which the Court of Civil Appeals discussed, and on which it based its holdings, were the fifteenth and sixteenth.

The first of these assignments was directed against the thirteenth paragraph of the charge of the court, which reads as follows:

"Now, if you believe from the evidence that the plaintiff was injured, and you further believe that his injuries were proximately caused by the negligent failure, if any, of the Pullman employees to assist him in disembarking from said train or in improperly placing the footstool for him to step upon, if you believe that it was improperly placed, or if you believe that his injuries were proximately caused by failure, if any, of the Pullman porter to notify the employees of the railroad of the presence of the plaintiff at said place wishing to disembark from said train, and you find this failure of said porter, if he did so fail, to be negligence, that is, a failure to use a high degree of care, and you find that these acts of negligence, if any, were the proximate cause of his injuries, if any, and that he would not have been injured but for said acts, then the railroad company would be entitled to a judgment over against the Pullman Company for whatever sum, if any, you find in favor of the plaintiff against the railway company."

The railway company made the giving of this charge the sixteenth ground of its amended motion for a new trial, it being given in that part of the court's general charge, which he stated applied to the controversy between the two corporations, and made its giving, as has been said, its fifteenth assignment of error in its brief.

It also specifically objected in writing and saved bill of exceptions to the giving of said paragraph 13, on the ground that the charge required it to show that the act of the Pullman employees which contributed to the injury was a negligent act, whereas, by the terms of the contract between it and the Pullman Company, it was entitled to indemnity whether the act of the porter was negligent or not.

The sixteenth assignment of error of the railway company was based upon the refusal of the trial court to give the following special charge No. 3, requested by it, which omitting certain preliminary and explanatory recitals, not necessary to be set forth, was as follows:

"Now, therefore, if you believe that plaintiff was injured, but that such injury was due to and proximately caused by the failure, if any, of the Pullman Company's porter to properly and safely place the foot box, or the failure, if any, of the Pullman Company to furnish sufficient light in the vestibule of its...