Dallas Ry. & Terminal Co. v. Goss

• Decision Date: 19 October 1940
• Docket Number: No. 12918.,12918.
• Citation: 144 S.W.2d 591
• Parties: DALLAS RY. & TERMINAL CO. v. GOSS.
• Court: Texas Court of Appeals

Page 591

144 S.W.2d 591

DALLAS RY. & TERMINAL CO. v. GOSS.

No. 12918.

Court of Civil Appeals of Texas. Dallas.

October 19, 1940.

Appeal from County Court at Law No. 1, Dallas County; Tom Nash, Judge.

Action by Maude Goss against the Dallas Railway & Terminal Company, to recover for injuries sustained on alighting from defendant's street car. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Burford, Ryburn, Hincks & Charlton and Sam P. Burford, all of Dallas, for appellant.

Wright K. Smith, of Dallas, for appellee.

LOONEY, Justice.

Maude Goss, a passenger on a street car operated by defendant Company, fell to the ground and was injured while alighting therefrom. She brought this action for damages, alleging that the motorman was negligent in raising or elevating the step upon which her foot rested, at the time she was attempting to alight, throwing her heavily to the pavement and injuring her. The defendant pleaded a general denial, contributory negligence in several respects, and unavoidable accident.

Plaintiff's testimony, in substance, was that, as she was leaving the street car, the motorman caused the outer step, upon which her foot was at the time, to rise, wrenching or jerking off the heel of her shoe, and throwing her to the pavement, resulting in the injuries of which she complained.

On the other hand, the motorman denied that he made any effort to close the door, or raise the step; testifying that, as plaintiff was leaving the car, she had some bundles in her arms and that it seemed as though her ankle turned and the heel of her shoe came off, "and she just scooted on down off the front platform out of the vestibule, scooted on down on the ground." He testified further that the car door closes and the step rises simultaneously. Mrs. Moore, a passenger, corroborated the motorman to a certain extent; that is, she testified that he made no attempt to close the door on the occasion; that it did not close, or start to close, while plaintiff was getting off the car.

On a proper submission, the jury found the defendant guilty of actionable negligence, in that, the motorman caused the step of the car to rise while plaintiff's foot was still resting upon it. The jury also acquitted plaintiff of contributory negligence and assessed her damages at $196.50, for which judgment was rendered in her favor, resulting in this appeal.

Among other propositions urged, defendant insists that the judgment below should be reversed and the cause remanded, because the arguments of counsel for plaintiff were off the record, inflammatory in nature, and highly prejudicial.

The attorney who opened the argument for plaintiff, among other things, said: "Now what evidence is there that the motorman didn't release the air? He says he didn't release the air. Maude said she felt the step raise under her foot. She fell. There is no question about that. No argument about that. The motorman says he didn't release the air. Could you reasonably expect him to say that he did release the air? Under cross examination by Mr. Smith he said if he had been wrong or had released the air he would have told the company. Now, just reflect a moment on that point. If he had told the company that he released the air under the circumstances that have been proved in this case, when there was not a soul that got on or off the car except Maude when the accident happened at an hour of the day when very few passengers were on the car, he wouldn't have been up there testifying in this case— he would have been discharged a good long time ago."

Again, counsel who closed the case for plaintiff, among other things, used the following language: "Mrs. Moore (referring to the passenger who testified) was not in a position to and didn't actually see what happened. The people that were involved were in a better position to know and Mr. Roberson (the motorman) said he didn't do it, and, frankly, gentlemen, I didn't expect him to say he did but he said, I believe, if he had he would voluntarily come in and admit it, but gentlemen, I will admit now I have never had one experience when they did admit they did anything wrong."

In each instance, counsel for the defendant objected to the remarks, the objection was sustained, and the court instructed the jury to disregard same. Qualifying the bill taken to the latter argument, the court said: "In the argument of defendant's counsel he made the following statement: `Gentlemen of the jury, if Mr. Roberson had done the thing they say he did, I believe he would have come down here and told you so. I believe Mr. Roberson would have admitted it had he caused the step to raise before Maude Goss was clear of the step. I do not believe he would have told a story about it.'"

The statement of counsel in the opening argument, to the effect that, if the motorman had informed the Company (the defendant) that he released the air (causing the step to rise) under the circumstances, "he wouldn't have been up there testifying in this case—he would have been discharged a good long time ago", and the statement of counsel, in the closing argument, referring to the testimony of the motorman, saying "I will admit now I have never had one experience when they (evidently referring to employes of companies similarly sued) did admit they did anything wrong", obviously, were entirely outside the record and, in our opinion, prejudicial in nature...