H. & T. C. R'Y Co. v. Leslie

• Citation: 57 Tex. 83
• Decision Date: 02 May 1882
• Docket Number: Case No. 3088.
• Court: Supreme Court of Texas
• Parties: THE H. & T. C. R'Y CO. v. JAMES L. LESLIE.

57 Tex. 83

THE H. & T. C. R'Y CO.

v.JAMES L. LESLIE.

Case No. 3088.

Supreme Court of Texas.

May 2, 1882.

APPEAL from Grayson. Tried below before the Hon. J. M. Lindsay.

This suit was brought by James L. Leslie, against the appellant, claiming $20,000 as damages on account of injuries sustained by him, and caused by the negligence of the appellant's employees, who were in charge of and conducting the passenger train of cars on the defendant's line of road, which injuries were received at Van Alstyne, a station on that road. The circumstances attending the occurrence of which the plaintiff complains are, in substance, that on the 26th day of April, 1874, at said station, he entered a passenger coach on the express train bound south, for the purpose of procuring seats for some ladies under his charge, and that whilst petitioner was so engaged the train was put in motion, leaving the station; and petitioner, in his efforts to get off the car, without any fault of his own, was hurled to the ground, and his left arm broken in two places. The petition alleged that the train of cars was not stopped at the station the time required by law, nor was it stopped a sufficient length of time to permit persons to leave the train and alight in safety; that the ladies referred to had paid their fare and received their tickets for passage, and were at the usual place for passengers to get on the train; that neither the conductor of the train, or any other person in the employment of the defendant, offered to assist the ladies in getting on the train, wherefore petitioner entered the passenger coach to assist them, and for the purpose of securing proper seats; that the train was put in motion by the employees in charge without having stopped at the station before named exceeding one minute; and that by the gross negligence of the employees of the defendant in thus moving said train, and without any fault of petitioner, the injuries were inflicted upon him. The plaintiff alleged that the ladies under his charge were in feeble health, and had some children with them, thus requiring his aid; that when the train was started, the agents of the defendant knew that the plaintiff was on board, and that he desired to get off, and that he had entered the cars under the circumstances stated, with the knowledge and consent of the defendant's agents who were conducting the train.

The defendant answered by general denial, and for special answer alleged that the plaintiff's entrance into the defendant's coach was without authority; that the train stopped a sufficient length of time to enable plaintiff to have left the car safely, before the train moved; that he remained until the train commenced to move, and, when it was in rapid motion, without demanding that the train be stopped, leaped from the steps of the car, and thereby received his injuries; and that the plaintiff was warned before thus leaping, by one of defendant's employees, not to do so, which warning he wholly disregarded.

The cause was submitted to a jury. Verdict and judgment for the plaintiff for $900.

The grounds relied on for a new trial were, 1st, the court erred in refusing charges asked by the defendant; and 2d, the verdict of the jury is contrary to the law and to the evidence, and because it is excessive.

The appellant assigns as error the refusal to give the charges asked for by him, and the overruling of the motion for a new trial.Geo. Goldthwaite, for appellant.

Bledsoe & Head, for appellee.

WALKER, P. J. COM. APP.

The first ground assigned as error, that the court erred in refusing to give the instructions asked by the defendant, is answered by saying that the charge of the court embodied them all, except the fourth and last paragraph, in the very terms in which they were asked, with a few qualifications, which did not improperly modify the propositions to which such qualifications were applied.

The law as given embraced substantially all the propositions asked to be submitted in the charge which the defendant asked to be given, and which was refused, except the fourth paragraph before referred to. The only portion of the paragraph referred to which need be discussed is as follows: “If you believe, from the evidence, that the permanent injury to plaintiff was occasioned by erysipelas, or other disease not ordinarily consequent upon such fracture as plaintiff received, then you will not consider the suffering or injury arising from such disease in estimating the damages to the plaintiff.”

The court did not err in refusing this instruction. The liability of the defendant is measured by the fact that the injury received follows proximately from the culpable act complained of, and if the erysipelas sprung from the injury, the dangers from that disease, as well as the sufferings produced by it, constitute a portion of the injury itself, and it is none the less so because, under similar accidents producing fractures, that disease would not ordinarily ensue.

We will next consider whether the verdict of the jury was contrary to the law and the evidence. The plaintiff rests his right to recover damages for the injury occasioned by his leaping from the cars whilst in rapid motion, not upon the assumption that his act in so doing was one done in the exercise of ordinary care on his part, as the sequel evidently showed, but that the defendant was liable for the consequences in damages which followed from his thus leaving the cars, by reason of the unauthorized act of the defendant in stopping but one minute only at the station, and thereby presenting the motive and temptation to the plaintiff to hazard his life or limbs by an effort to avoid being carried away, against his will, from his home in Van Alstyne.

The plaintiff's action in the premises being thus the direct and proximate cause of the injury, as is shown both by the pleading and evidence, and it appearing clearly from the facts proved that leaping from cars in motion is unsafe and dangerous, it follows that the plaintiff contributed, by his want of care, to the casualty which occurred.

The question then remains, Do there exist any facts, or is there presented a state of case, on which, notwithstanding the plaintiff's contribution to his own misfortune, showing that the defendant is nevertheless liable for damages in consequence of...