Dallas Railway & Terminal Co. v. Davis

• Decision Date: 20 March 1930
• Docket Number: No. 2396.,2396.
• Citation: 26 S.W.2d 340
• Parties: DALLAS RAILWAY & TERMINAL CO. v. DAVIS et al.
• Court: Texas Court of Appeals

26 S.W.2d 340

DALLAS RAILWAY & TERMINAL CO. v. DAVIS et al.

No. 2396.

Court of Civil Appeals of Texas. El Paso.

March 20, 1930.

Rehearing Denied April 3, 1930.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Mrs. J. B. Davis and husband against Dallas Railway & Terminal Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, for appellant.

W. E. Johnson, of Dallas, for appellees.

WALTHALL, J.

Mrs. J. B. Davis, joined by her husband, J. B. Davis, brought this suit against the Dallas Railway & Terminal Company, a street car company, to recover damages for personal injuries alleged to have been sustained by Mrs. Davis as the result of alleged negligence on the part of the motorman of the company in the movement of the street car on which she was a passenger.

The petition alleges that Mrs. Davis desired to get off the street car at Marsalis street, and signaled the motorman of her desire to get off; that the motorman brought the car to a stop; Mrs. Davis arose from her seat and went to the front of the car for the purpose of leaving the car at that place; that she discovered the place where the car was stopped was not Marsalis street and she so notified the motorman; that while standing near the motorman, without any support of any kind, the motorman, knowing that she was standing and where she was standing, without warning, and immediately upon being advised that she desired to get off at Marsalis street and not where the car had stopped, and without giving Mrs. Davis time to resume her seat, caused the car to start with a sudden lurch or jerk, and with such force and violence that she was thrown backward to the floor and seat of the car, and injured as alleged.

The petition alleges that the company was negligent in the following particulars: First, the motorman, knowing that Mrs. Davis was standing unsupported and holding to nothing, and in an unsafe place, started the car without warning and without waiting until she could resume a place of safety; second, the car was started with a jerk and lurch that was unusual and unnecessary and of great force and violence. The petition alleges that, as a result of the negligent acts of the motorman, Mrs. Davis was thrown backwards onto the floor of the car and against the back of a seat of the car, and injured as alleged.

The petition states the character and extent of her injuries, and the damages resulting therefrom.

The Dallas Railway & Terminal Company answered by demurrers, general and special, denials, general and special, contributory negligence on the part of Mrs. Davis, and that, if she was injured as alleged, such injury was due to an accident without its fault. The court overruled the demurrers and submitted the case to a jury on special issues. On the verdict of the jury the court entered judgment "that said plaintiff, Mrs. J. B. Davis, joined by her husband, J. B. Davis, do have and recover of the said defendant, Dallas Railway & Terminal Company," the sum found by the jury. The company's motion for a new trial was overruled, and it perfected this appeal.

Opinion.

The trial court, in submitting the case to the jury on special issues, defined "ordinary care," as used in the charge, and immediately followed the definition given of ordinary care with the following:

"In connection with ordinary care you will take into consideration that while the defendant is not an insurer of the safety of Mrs. Davis while she was riding upon his car, it was the duty of defendant's motorman to exercise such a high degree of care as a highly prudent person would exercise, under the same or similar circumstances to see that she was not injured, that a failure to exercise such a high degree of care is negligence."

The court defined "negligence as used herein is meant the doing of an act that an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do what an ordinarily prudent person would have done under the same or similar circumstances."

Appellant duly objected to the above-quoted paragraph of the charge defining ordinary care as being "in the nature of a general charge." The court overruled the objection, and appellant submits that it was reversible error.

Article 2189, R. C. S. 1925, provides that, when a case is submitted on special issues, the court shall submit only "such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues."

The question is presented: Is the added part of the charge as to ordinary care objected to, a general charge, or is it only such explanation or definition of the legal term "ordinary care" as is necessary to enable the jury to properly pass upon and render a verdict on the issue as to whether the motorman exercised such degree of care in the movement of the car as was his duty, under the circumstances. In submitting a case on special issues, it has been held by our higher courts that the only explanation proper or necessary is a clear and succinct definition of ordinary care, negligence, and proximate cause in connection with proper issues pertaining to liability, and that a charge that generally goes into details as to the duties is a general charge and not a definition or explanation of legal terms, such as ordinary care, negligence, proximate cause, and other legal terms used. J. M. Radford Grocery Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218; Houston & T. C. R. Co. v. Stribling (Tex. Civ. App.) 293 S. W. 890.

In the above-cited cases and others we have examined, the courts apply the rule as contended for by appellant. None of them, however, are cases where the defendant is a common carrier for hire, and the injured party is a passenger, and where the duty required was the exercise of a higher degree of care than the ordinary, that is, of such high degree of care as a highly prudent person would exercise under the same or similar circumstances. Had the trial court applied the rule contended for by appellant, we can hardly see how the jury would know that a higher degree of care was required of appellant to avoid injury to its passenger in considering the issue of negligence submitted. True, the court in originally defining ordinary care might have stated that high degree of care was required of appellant to avoid injury to its passenger without adding the part objected to, but we think the effect would be the same. We have concluded that the portion of the charge objected to may be regarded as an explanation or definition of the legal term "ordinary care," where the injured person is a passenger, without being in violation of the rule announced in J. M. Radford Grocery Co. v. Andrews, and Houston & T. C. Ry. Co. v. Stribling, supra, and other cases so holding. In no other part of the court's charge was negligence defined or other guide furnished the jury indicating the proper degree of care required under the facts of the case. It is not suggested that the degree of care stated in the charge was not the proper degree of care required.

A case in point sustaining our view as above is Fort Worth & D. C. Ry. Co. v. Lovett et ux. (Tex. Civ. App.) 263 S. W. 643, by Judge Randolph of the Amarillo court. Lovett was a passenger on the appellant railroad. The case was submitted on special issues, and the charge given was similar to the one in the case at bar, and the objection urged to the charge was similar to the one urged here. The court in the case at bar, as in that case, in submitting the issue of negligence, made no attempt to apply the facts stated, expressing the diligence required. The appellee had the right, we think, to have the court, at some portion of the charge, give to the jury a proper statement of the duty the appellant owed to appellee in order that the jury might properly pass upon the issue of negligence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Davis, Agent, v. Pettitt (Tex. Com. App.) 258 S. W. 1046.

For reasons stated the proposition is overruled.

A careful review of the evidence convinces us that the issue of unavoidable accident was not in the case. The court submitted the issue, and the jury answered no. No reversible error is shown.

We concur, however, in appellant's contention that, where unavoidable accident is raised by the evidence, the burden of proof is on the plaintiff.

Appellant submits error in overruling its special exception to the joinder of Mrs. Davis as a party plaintiff and permitting recovery in the name of Mrs. Davis. The court's judgment reads: "It is therefore ordered, adjudged and decreed by the court that the said plaintiff, Mrs. J. B. Davis, joined by her husband, J....