Born v. Texas & Pac. Ry. Co.

• Decision Date: 30 January 1897
• Citation: 39 S.W. 170
• Parties: BORN v. TEXAS & PAC. RY. CO.
• Court: Texas Court of Appeals

39 S.W. 170

BORN v. TEXAS & PAC. RY. CO.

Court of Civil Appeals of Texas.

January 30, 1897.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by W. J. Born against the Texas & Pacific Railway Company for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Leake, Henry, Reeves & Greer, for appellant. Alexander, Clark & Hall, for appellee.

FINLEY, J.

Appellant's statement of the case is accepted by appellee as correct, and is as follows: This was a suit by appellant to recover damages for personal injuries sustained while getting off defendant's train at Forney, Tex., July 6, 1894. The defendant pleaded a general denial and plea of contributory negligence. The jury brought in a verdict for defendant. The court overruled plaintiff's motion for new trial, to which plaintiff excepted, and has brought the case to this court on appeal.

Plaintiff testified, in substance, that on July 6, 1894, he was a passenger on defendant's railroad going east from Dallas; that, before reaching Forney, he advised the conductor that he desired to stop at that point, and he had several packages with him, and to be sure to stop the train long enough for him to get off safely; that, on reaching Forney, he used all due diligence to leave the train, and carried out of the car some of his packages, and, as he was returning to the car for the remainder, he notified the conductor to hold the train until he could get his other packages off, which was fully understood by the conductor; but, instead of holding the train for that purpose, and without stopping there a sufficient length of time to enable him to get off the train safely, the train was put in motion, and while it was going at the rate of 2 or 3 miles per hour, and had not gone more than 40 feet from the stopping point, plaintiff, believing that he could safely do so, jumped from the train, and, in doing so, fell, and thereby greatly injured himself in his knees and hands, from which injuries he has never yet recovered. The defendant proved by the conductor of the train that he had no recollection of the plaintiff's getting hurt at the place named, nor that plaintiff asked him to hold the train until he could get his baggage out of the car.

Appellant's assignment of error: "The court erred in defining where the burden of proof lay of contributory negligence, the charge of the court being as follows: `The burden of proof is upon the plaintiff to make out his case upon all issues save the question of contributory negligence, to show which the burden is upon the defendant, unless the same appears from plaintiff's own negligence.' The charge of the court should have been as follows: `The burden of proof of contributory negligence is upon the defendant, unless the same is developed by plaintiff's case or evidence;' whereas, the court charged that `the burden would be upon the defendant, unless the same appears from plaintiff's own negligence.' This was error for two reasons: (1) The use of the word `negligence' in this part of the charge was misleading and confusing, leaving the jury without guidance in determining where the burden of proof of contributory negligence lay. (2) Because this part of the charge might be construed by the jury as indicating the opinion of the...