Choate v. San Antonio & A. P. Ry. Co.

• Decision Date: 11 June 1896
• Citation: Choate v. San Antonio & A. P. Ry. Co., 36 S.W. 247 (Tex. 1896)
• Parties: CHOATE v. SAN ANTONIO & A. P. RY. CO.
• Court: Texas Supreme Court

36 S.W. 247

CHOATE v. SAN ANTONIO & A. P. RY. CO.

Supreme Court of Texas.

June 11, 1896.

Error to court of civil appeals, Fourth supreme judicial district.

Action by F. B. Choate against the San Antonio & Aransas Pass Railway Company. There was a judgment of the court of civil appeals (35 S. W. 180) reversing a judgment for plaintiff, and plaintiff brings error. Affirmed.

Mayfield, Ball & Burney, for plaintiff in error. Proctors, for defendant in error.

BROWN, J.

The conclusions of fact, as found by the court of civil appeals, are as follows: "Plaintiff testified upon this trial, as to how the accident happened, as follows: `I got on the San Antonio & Aransas Pass Railroad on March 15th at Runge, to go to San Antonio. I paid my passage. I first got on the ladies' car, then I changed to the smoker. I was crippled at the time. I went back into the smoker, and left my crutch in the ladies' car. It is called the "ladies' car." It was the first-class car. It was at Elmendorf that I got hurt. I was sitting with Jim Gilleland and Davis Wade. I think that Davis Wade and I were sitting on the same seat, and Jim Gilleland was in front. I told them, when the train stopped long enough I was going to get my crutch. It didn't hardly stop when I undertook to go back and was thrown off. The train just run up and stopped with a jerk, and started with a jerk. I was on the platform, trying to go through to the other car. Just about when the train stopped I started from where I was seated in the smoker to go back to the ladies' car. The train started with a jerk, and threw me off. I was caught under the car wheels, and it cut off my toes on one foot. I don't know what did occur after that, positively. It all seemed like a dream. I cannot say anything positively about it. I do not remember being at a hotel, store, or anything. I really do not know what I did. I know what they told me afterwards. My first recollection was, I was in San Antonio, at the hotel, and Dr. Graves was working on me, on my left foot, and asked me if I didn't want a toddy, and I told him, "Yes." Some one objected, but he said to let me have it. That was the first I remembered after I got hurt. Runge is in Karnes county. There is where I got on the railroad. The railroad runs to San Antonio from there. From Runge to San Antonio it passes through the counties of Wilson, Bexar, and Karnes. I paid $2.15 fare going from Runge to San Antonio. It is 72 miles. I paid my full fare and Mr. Gilleland's full fare. When I was thrown from the car, I was on the platform. The jerk is what threw me off the platform. The train had not stopped. They were just ready to stop, and they did not hardly stop, and started with a jerk again. It was a sudden jerk. I lost my balance at that jerk, and fell off the platform. I tried to catch myself when that sudden jerk came, of course, but could not. I don't know what prevented me from catching on. I was crippled at the time, and was going back for my crutch. The reason I went back was, I told these boys whenever the train stopped I was going back for my crutch, and did not want to go until it did stop. At the time of this jerk I was thrown off the platform. The train should have stopped, and I thought it had stopped; and just about the time I got to the door it started with a jerk, and threw me off.' A deposition of the plaintiff that had been taken in the cause was read by defendant. In this plaintiff stated that when the train arrived at Elmendorf he was in the smoking car, and went out on the platform with the intention of getting off, but did not do so, as the train stopped with a jerk, throwing him against the hand rail, and, stopping only an instant, started again with equal suddenness, throwing him off, and that the draught created by the moving train threw him under it. In this deposition plaintiff testified to matters that occurred while at Elmendorf, and before he went to San Antonio, which deposition is irreconcilable with his not knowing what took place at Elmendorf. Defendant read the depositions of several witnesses who reside in Bexar county, and who were unimpeached, who testified that at Elmendorf, after the accident, and before he went to San Antonio for treatment, plaintiff stated to them, respectively, that he had stepped off the train when it stopped at the depot, and that when he went to step back he missed his step, or slipped, and the wheel caught his foot. One of his own witnesses testified to a similar statement made by plaintiff to him at the same time. These witnesses are not contradicted in any way. It was shown, and not contradicted, that the wheel of the car was two feet inside of the outer edge of the lower step on the platform, and that the platform had iron railings thirty inches high, and the space between the cars, when moving, did not exceed seven inches, and the height of the step was two feet. There was no evidence that plaintiff was bruised or hurt in any way, except the injury to his foot. The testimony was conflicting as to plaintiff being drunk on that occasion." The court of civil appeals announced its conclusions of law upon the facts stated in this language: "We are of opinion from what has been said, and...