Dallas & O. C. El. Ry. Co. v. Harvey

• Decision Date: 20 June 1894
• Citation: 27 S.W. 423
• Parties: DALLAS & O. C. EL. RY. CO. v. HARVEY.
• Court: Texas Court of Appeals

27 S.W. 423

DALLAS & O. C. EL. RY. CO. v. HARVEY.

Court of Civil Appeals of Texas.

June 20, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Lane Harvey against the Dallas & Oak Cliff Elevated Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Leake, Shepard & Miller, for appellant. Edwards & Blewett, for appellee.

RAINEY, J.

Appellee sued to recover damages for personal injuries alleged to have been occasioned by the negligence of the servants and employés of appellant in the operation of its train after he had alighted therefrom. Four acts of negligence were specifically alleged upon which appellee based his right of recovery. They were in substance (1) that the train was not stopped at a proper place, and he had to alight on the ground at a less safe place than the platform; (2) the train was suddenly and prematurely moved in a backward or contrary direction from that in which it had been going; (3) the train was moved without giving any signal whatever, and that there was no light or watchman on the rear end of the train; and (4) that the station was not lighted at the time of the injury, but was in total darkness. Appellant pleaded contributory negligence, in that plaintiff attempted to board the train after it started, and while it was moving.

The court gave the following charge, which is complained of by appellant, viz.: "If you find and believe from the evidence before you that at the time plaintiff was injured, the defendant, through its servants and employés in charge of the train, were guilty of negligence in any respect, taking into consideration all of the facts and circumstances in evidence before you which contributed to plaintiff's injury, or if, from the evidence, you find and believe that the station at which plaintiff was injured was not properly lighted, and you believe this fact, if you find such to be a fact, was the direct and proximate cause which brought about the injuries complained of, and you find that lights were necessary at the time to afford passengers getting off the train at the station an opportunity of leaving the cars with safety, then the defendant would be responsible, and your verdict would be for the plaintiff." Four grounds of objection are urged to this charge, as follows: "(1) The charge of the court is upon the weight of the evidence, in that it virtually instructed the jury that if the platform was not lighted, and this was the cause of the injury, it would constitute negligence on the part of defendant. (2) It was the duty of the court to...