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

• Decision Date: 31 May 1892
• Citation: 19 S.W. 1017
• Parties: CONWILL v. GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

19 S.W. 1017

CONWILL v. GULF, C. & S. F. RY. CO.

Supreme Court of Texas.

May 31, 1892.

Commissioners' decision. Section B. Appeal from district court, Lamar county; E. D. McCLELLAND, Judge.

Suit by Nancy F. Conwill against the Gulf, Colorado & Santa Fe Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Hale & Hale, for appellant. J. W. Terry, for appellee.

TARLTON, J.

This suit was instituted in the district court of Lamar county, by appellant against appellee, to recover the sum of $15,000 damages for personal injuries inflicted upon appellant, and ascribed to the negligence of appellee, its agents and employes. The plaintiff alleged that on September 15, 1888, she was a passenger on one of the passenger coaches of defendant, traveling from Dallas, Tex., to Ambia, in Lamar county; that on reaching Ambia, the point of her destination, the train, going in a northerly direction, was moved from the main track onto a switch, where it remained a few minutes until the south-bound train from Paris passed; that, while the train was on the side track, there was no safe place for passengers to alight; that, after the south-bound train passed, that on which plaintiff was returned to the main track, and, moving forward, passed by the depot and platform, without giving her an opportunity to alight; that, though she requested the conductor to stop the train at the platform that she might alight, it passed for a distance of about 400 yards beyond the north end of the switch. Here it stopped, and the conductor commanded her to get off, and to be in a hurry; that she requested him to back the train to the platform, but he declined; whereupon, at his earnest command, she reached down, placed her hands on his shoulders, and jumped down, spraining, breaking, and permanently injuring her ankle; that when she reached the ground the conductor stepped on the great toe of her right foot, and so mashed it that the nail came off, causing her to suffer great pain; that, in a suffering and crippled condition, she was compelled to walk to her home, about three fourths of a mile distant. The defendant, after pleading a "general denial," answered, specially, "that the conductor in charge of the defendant's train, after having passed beyond the station and platform, proposed to plaintiff that he would back the train to the platform, but that the plaintiff insisted on getting off where the train then was: whereupon the conductor carefully and gently assisted plaintiff to alight therefrom, and she sustained no injury whatever as declared upon." The trial resulted in a verdict and judgment for the defendant, and the plaintiff prosecutes this appeal. Evidence introduced by the plaintiff indicates that the defendant company carried the plaintiff beyond the platform on which passengers were to alight; that, when this fact was discovered, the plaintiff requested him to return to the platform, that she might leave the cars in safety; that the conductor, so far from granting her request, stopped the train at a point several hundred yards beyond the platform, and commanded her to alight; and that, in obeying this command, she received the injuries complained of. Evidence introduced by the defendant indicates that when, at the point referred to, the conductor discovered that the plaintiff was still on the train, he stopped the cars, and offered to return to the platform, that the plaintiff might alight; that the plaintiff declined to return, saying that she would prefer to get off where the train then was; and that the conductor thereupon gently and carefully assisted her to alight.

Such being the state of the evidence, the court, among other things, instructed the jury as follows: "Second. If you believe from the evidence that the defendant, while carrying plaintiff as one of its passengers on one of its trains, from Dallas to Ambia, carried her past the platform prepared for passengers to alight upon, and that, after having done so, the conductor stopped the train, and failed or refused to back the same to the station platform, and ordered or requested the plaintiff to get off, and failed to furnish a safe means for her to get off, and that by getting off at said place she was thereby injured as alleged, then you will find a verdict for plaintiff for such actual damages as the evidence may show her to have sustained by reason of such injury. Third. If you believe from the evidence that, after having carried plaintiff past the platform, the conductor stopped the train, and offered to carry her back to the platform, and that plaintiff thereupon requested to be allowed to get off where she did get off, and that the conductor used ordinary care in assisting her to get off, then you will find a verdict for the defendant."

It will be observed that the foregoing charges are adapted to the phases of the evidence as presented by the plaintiff and defendant, respectively. It is insisted, however, by the appellant's counsel that the third instruction set out is erroneous. The complaint, in substance, is that the charge is addressed to the defense of contributory negligence; and that the court erroneously assumed in the instruction, as a matter of law, that the facts therein submitted to the determination of the jury constitute contributory negligence. Numerous authorities are cited in support of the proposition that the question of contributory negligence is, as a general rule, a question of fact for the jury. We do not, however, agree with counsel for appellant that the defense relied upon in this case, and submitted in the charge complained of, is purely the defense of contributory negligence. It includes the idea of contributory negligence, but it involves more. The contract of the defendant company was to stop at the platform of the depot at Ambia, that the plaintiff, its passenger, might there alight. It failed in the first instance to comply with this contract. When its...