Chicago, R. I. & G. Ry. Co. v. Wisdom

• Decision Date: 28 June 1919
• Docket Number: (No. 9129.)
• Citation: 216 S.W. 241
• Parties: CHICAGO, R. I. & G. RY. CO. v. WISDOM.
• Court: Texas Court of Appeals

216 S.W. 241

CHICAGO, R. I. & G. RY. CO. v. WISDOM.

(No. 9129.)

Court of Civil Appeals of Texas. Ft. Worth.

June 28, 1919.

On Motion for Rehearing, November 1, 1919.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

Suit by Geneva Wisdom against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

McMurray & Gettys and Lassiter & Harrison, of Ft. Worth, for appellant.

Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.

CONNER, C. J.

Appellee, Miss Geneva Wisdom, instituted this suit on the 29th day of November, 1916, to recover damages on account of an injury alleged to have occurred to her on August 2, 1916, while alighting from the defendant's train at Paradise, Tex. It was alleged that she was a passenger from Ft. Worth to Paradise, and that she slipped and fell while descending the car steps at Paradise, and that she was caused to fall by reason of the failure of the defendant's employés to take her traveling bag and carry it down the steps for her, and to take hold of her arm and assist her down the steps, and by reason of the fact that the steps on the car were old, worn out, and rickety, and slick and slippery, and not properly pitched.

The defendant pleaded a general denial, and averred that the plaintiff was guilty of contributory negligence, in that she was wearing slippers with extremely high heels, that were likely to turn under her feet and cause her to stumble and fall, and that in starting down the steps she so carelessly stepped as to bring about her fall; that if her handbag was so heavy that it endangered or interfered with her equilibrium as she walked out of the car that fact was known only to her, and that she was negligent in failing to set it down on the platform or to offer it to one of the three attendants present at the time, any one of whom would have received and carried it for her on the least indication that she desired assistance.

The trial resulted in a judgment in favor of the plaintiff for the sum of $1,400, and the defendant has duly appealed.

The assignments of error call for a determination of the sufficiency of the evidence to sustain the charge, verdict, and judgment, in appellee's favor. We have very carefully considered the evidence. It is too voluminous to justify our setting it out in full, and therefore we will undertake to state briefly its substance. The evidence is that on August 2, 1916, the appellee, together with her mother and sister, was a passenger on one of appellant's trains from Ft. Worth to Paradise, Tex.; that upon arrival of the train at Paradise appellee's mother and sister preceded her in alighting; that appellee emerged from the coach with a grip in her hand, which upon her turning upon the platform to descend the steps she took in both hands and held it out in front of her, and in this manner she started to descend. As she passed out of the car door and onto the platform the auditor of the train was standing near by. She made no request of the auditor to take her grip or to assist her in descending, nor did the auditor speak to or in any way attempt to assist her. At the foot of the steps on either side stood the conductor and brakeman for the purpose of assisting passengers to alight. The plaintiff made no request of these employés of appellant for assistance, nor did they, until after her fall, as hereinafter stated, offer to assist her. As appellee stepped from the platform onto the first step of the car her foot in some manner slipped or was caught, and she fell and was projected with her feet forward down the steps, and thus received the injuries for which she sued. Appellee at the time was wearing shoes or pumps of a fashionable make with heels about three inches high. The heel from one of these shoes was wrenched off, and found immediately after appellee's fall.

The evidence principally relied upon, and the only evidence cited in behalf of appellee in support of her allegations of negligence relating to the steps, is that of the witness Barnett and of S. R. Johnson, one of the brakemen on the train in question. Barnett testified in relation to the steps as follows:

"They were old steps, and the rubber on the steps was—there had in time been rubber on the steps, but they were all worn off, but around the edge or outside of the steps. The place you walk down, the center of the steps, was no rubber on. The surface of the step was worn until it was slick."

S. R. Johnson testified:

"This step in court resembles the step from which the plaintiff fell. On this step the rubber is worn off in places; worn some in the center; worn smooth; not none of them entirely smooth; there is a place right there that is smooth, in the center, where they step off."

This testimony is all that is quoted by appellee in support of the allegations of negligence referred to.

It was further proved that appellee at the time of her injury was 27 years of age; had been a teacher in public schools in various parts of the state for a number of years, and was an experienced traveler on trains. She testified that at the time her health was good, and in describing the immediate circumstances, among other things, said:

"My mother and sister were with me at the time. Mother got off first, my sister next, and I last. * * * In getting off I was walking in my ordinary manner, taking my time. I had a traveling bag with me. It was a medium size traveling bag. I had it up in both hands as I came down the aisle, and also had it in my hands when I came to the entrance. * * * When I started down I fell, fell down on the ground. I fell kind of sideways on this side, striking the steps, and I fell onto the step box, and then to the cement, or whatever you call it, the platform or ground. I fell awfully hard. No one caught me."

Cross-examined she said:

"When I came out of the car I had my grip in front of me; had both hands in the handhold of my grip, carrying it right in front of me. * * * Somebody was on the platform to my left as I started out. He did not touch me. I did not say a word to him, nor he to me. I have stated I was not positive whether I had stepped down on the first step when I fell or not. I do not know when the heel came off my slipper. It was off when I got to the ground. I do not know that my foot turned over. I do not know what caused me to fall. * * * I do not remember whether I saw a man at the bottom of the steps. I think there was one on either side. I have lots of times got on trains. I think I knew as well as anybody how to get on and off of a train."

The conductor of the train, among other things testified that he reported the accident to the claim agent at Ft. Worth, and on his return to that place was there met by the claim agent, who testified that he immediately took a photograph of the steps and ordered them detached, to the end that they might be exhibited as a demonstration of their condition. The photographs accompany the records in this case, and therefrom the rubber on the steps appear to be about in the condition described by the brakeman Johnson, whose testimony relating to this matter, as set out by appellee, we quoted, that is to say, the steps of the car appear to have been surfaced with rubber mats which originally were in a corrugated form, but which from use had been so worn as to reduce the corrugation in places to a smooth surface. The photographs, however, do not show that the rubber had been worn through at any place, and all of the testimony, except that of the witness Barnett, describes the steps about as we have attempted to describe the photograph.

Viewing the testimony, as a whole, and in its most favorable aspect for appellee, we are unable to say that the evidence authorized the submission of the issue of negligence in a failure on the part of the servants and employés of the appellant to aid and assist plaintiff at the time in question. Ordinarily the carrier is not burdened with the duty of extending personal assistance to a passenger in alighting from a train. See Flory v. San Antonio Traction Co., 89 S. W. 278, in which is cited Railway Co. v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96. See, also, 2 Moore on Carriers, p. 1245, § 52. But appellee cites the cases of N. Tex. Traction Co. v. Danforth, 53 Tex. Civ. App. 419, 116 S. W. 147; T. & P. Ry. Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308; Flory v. San Antonio Traction Co., 89 S. W. 278; M., K. & T. Ry. Co. v. Buchanan, 31 Tex. Civ App. 209, 72 S. W. 96; Campbell v. Alston, 23 S. W. 33. These cases, however, we think, are plainly distinguishable from the one before us. In the case of N. Tex. Traction Co. v. Danforth, supra, which we will notice as illustrative of the others, the court held that the evidence supported the following allegations of the plaintiff's petition:

"That on the 20th day of May, 1906, about 9 o'clock a. m., plaintiff's wife, Lula C. Danforth, with her baby in arms, became a passenger on the defendant's interurban car No. 11, at its Tenth street station in Oak Cliff, and paid her fare to the conductor of the car, to be carried to Ft. Worth to visit her friend, Mrs. Elizabeth Derozier. When said car stopped in response to her signal at the intersection of Main and Weatherford streets in Ft. Worth for her to alight, and while she, with her 17 months old baby in her arms, and in the exercise of the greatest care and prudence to safely alight, was stepping from the rear platform to the step, from which she would alight to the street, her feet slipped from the step of the car, and threw her with great violence and force down upon the street and backward against said step. That her feet slipped from the step of the car because of the step being worn, making the board thinner and slanting and slippery, and because of slippery mud having accumulated and being on said step, and because said step was...