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

• Decision Date: 18 June 1902
• Citation: 69 S.W. 653
• Parties: GULF, C. & S. F. RY. CO. v. SHELTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 653

GULF, C. & S. F. RY. CO. v. SHELTON.¹

Court of Civil Appeals of Texas.

June 18, 1902.

Appeal from district court, Dallas county; Richard Morgan, Judge.

Action by J. W. Shelton against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H. Clark, J. W. Terry, and Alexander & Thompson, for appellant. Finley, Etheridge & Knight, for appellee.

FISHER, C. J.

Appellee Shelton sued the appellant for $40,000 damages for personal injuries sustained to himself, and recovered a verdict and judgment in the court below for the sum of $35,000. There is evidence in the record which authorizes this court to find the following facts: On the night of March 30, 1900, the appellee purchased from the appellant's agent at Gainesville, Tex., a ticket from that point to Los Angeles, Cal., over the appellant's road, and its connecting line, the Atchison, Topeka & Santa Fé Railway. In negotiating for the purchase of the ticket the appellee inquired of the agent who sold the same to him whether he would be required to change cars, and was then informed by the agent that there would be no change of cars before arriving at Newton, Kan. The train upon which the appellee took passage at Gainesville left that place about 11 o'clock of the night of March 30th, and arrived at Purcell, the place where the injury was inflicted, about 3:20 a. m., at which time it was dark. The train was not due to arrive at Newton, Kan., until about 2:30 p. m., March 31st. Appellee boarded the train at Gainesville, and went into one of the coaches, and while there the conductor, in taking up his ticket, informed the appellee that he would be required to change cars at Purcell, whereupon appellee told the conductor that the agent at Gainesville, who had sold him the ticket, assured him that he would not be required to change cars until his arrival at Newton, Kan. In response the conductor told him that he must change cars at Purcell. The train upon which the appellee was then riding was composed of some coaches which were left out at Purcell, one of which was the coach occupied by appellee as a passenger; but there were two other coaches which were not set out there, but went on through to Newton, Kan. The appellee was not informed of this fact by the conductor, nor did he know that these two coaches would continue on to Newton, Kan.; and the inference is warranted from the evidence that, if the conductor had not instructed appellee to change cars at Purcell, and had correctly informed him that there were two coaches as a part of his train which would continue to Newton, Kan., the appellee could and would have gone into one of those coaches, and not made an effort to disembark at Purcell. Immediately or a few minutes after the arrival of the train at Purcell a switch engine coupled onto the same, and under the direction of a switch crew, which was then and there in the control and management thereof, was put in motion by the switch engine, and when going at the rate of about 2½ miles an hour, and when the coach in which the appellee was riding had gone the distance of about 50 feet, the appellee was instructed to leave the coach and the train by one Petrie, a member of the switch crew. In obedience to this request and command, he undertook to alight from the moving train, and when doing so stepped or fell between the lower step of the coach and the edge of the platform, whereupon the wheels of the car passed over his legs, and they were both so injured as required their amputation. When the train arrived at Purcell the appellee was asleep, and did not hear the name of the station announced, if it was announced; but immediately or in a few minutes after arriving there he was awakened by the request or command to leave the train, and in obedience to this command, as before stated, he undertook to alight from the train. He was not at the time informed, nor did he know, that there were two coaches attached to the train that would continue on to Newton, Kan., in which he could and doubtless would have gone if he had received this information at that time, and would not have made the effort to disembark. No effort was made to stop the train in order that he might leave it with safety; nor was he informed of the condition of the platform and the space between the edge of the same and the lower steps of the car. The platform at the time was poorly lighted, and the inference to be drawn from the facts is that at the time the appellee attempted to leave the train he was in the exercise of proper care, and was not guilty of contributory negligence. The train, at the time it was being backed and at the time that the appellee was instructed to alight, was in charge of a switch crew, of whom Petrie was a member. There is no direct and positive testimony to the effect that Petrie was the party that instructed or commanded the appellee to leave the train, but the evidence upon this subject authorizes the conclusion that he was the party that gave the command. The switch crew that had control of the train was in the employ of the Atchison, Topeka & Santa Fé Railway Company, but the evidence is clear, convincing, and beyond dispute to the effect that the servants of that company, under an arrangement with the appellant's road, performed the duties of a switch crew for the latter company. It was a part of the duty of the switch crew, when appellant's train arrived at Purcell, to take control of the same, and to remove it, and switch it back in the manner done in this instance. The appellee was a stranger to the location and situation of the platform at Purcell, and did not know of the existence of the space between the edge of the platform and the lower steps of the car. If the platform had been sufficiently lighted, the appellee could and probably would have discovered the space before alighting, and thereby have avoided it and the injuries sustained by him. The conclusion is also warranted that Petrie had the authority to stop the movements of the train in order to permit the appellee to alight with safety, and, if he had done this, the appellee would have avoided the injury. The conclusion is also warranted that if the conductor in charge of the train, before it reached Purcell, or the switch crew after it reached that place, had informed appellee that there were coaches which were a part of the train that would go through to Newton, Kan., the appellee could and doubtless would have gone into one of those coaches, and thereby have avoided the injury. The space between the lower step of the coach and the edge of the platform was about 12 or 13 inches.

The conclusion that we reach from the facts as stated is that the appellant was guilty of negligence in the following particulars, each or all of which may have been, and doubtless was, the proximate cause of his injuries: (1) In not having the platform sufficiently lighted. (2) In maintaining the platform with the wide space between it and the lower steps of the car. (3) In directing and commanding the appellee to leave the moving train, with knowledge upon the part of Petrie that the platform was insufficiently lighted, and of the existence of the space between it and the lower steps of the car. (4) The failure of Petrie to stop the train under the circumstances, in order to permit the appellee to alight with safety. (5) The failure of the conductor in charge of the train and of the switch crew to inform and notify appellee that there were coaches attached to the train which would continue beyond Purcell. We also find that, in view of the facts which will be hereinafter stated, the verdict and judgment are not excessive.

Upon the principal questions involved in this case the trial court gave the following instruction: "In determining the question of liability of the defendant in this case you will confine yourselves to a consideration of the following questions, to wit: (1) Did the defendant, by and through its servants, discover the presence of the plaintiff in one of the defendant's coaches after the same had been put in motion by the switch engine at Purcell? (2) If the defendant did so discover the presence of the plaintiff, then did the defendant thereafter exercise ordinary care to avoid injuring him? (3) Did the failure of the defendant, if any, to exercise ordinary care to avoid injuring the plaintiff, directly and immediately result in the injuries sustained by the plaintiff? (4) Was the plaintiff guilty of contributory negligence?" The charge defines ordinary care, and then proceeds as follows: "If, from the evidence, you believe that after the defendant's coaches were put in motion by the switch engine at Purcell the defendant, by and through any of its servants, to whom it had intrusted the duty and authority of directing and controlling the movements of its trains while the same was being switched, discovered the presence of the plaintiff in one of said coaches while being so moved by the switch engine, and, having so discovered the plaintiff therein, if such was the fact, failed to exercise ordinary care with reference to his safety, and that such failure, if any, to exercise ordinary care, directly and immediately resulted in the injuries sustained by the plaintiff, then you will find for the plaintiff, unless you believe that he was guilty of contributory negligence, as hereinafter defined." The court then proceeds to submit the issue of contributory negligence and the rule to govern the jury in determining the question of damages. It is apparent from the charge that the liability of the appellant was submitted upon the theory that the appellee had, in a measure, ceased to be a passenger, and that it could only be held responsible for the exercise of ordinary care in its conduct towards him. If it be conceded that the appellee had ceased to be a passenger by remaining in the coach after the train had arrived at its destination, it...