Dallas Ry. & Terminal Co. v. Travis

• Decision Date: 23 January 1935
• Docket Number: No. 1500-6241.,1500-6241.
• Citation: 78 S.W.2d 941
• Parties: DALLAS RY. & TERMINAL CO. v. TRAVIS et al.
• Court: Texas Supreme Court

78 S.W.2d 941

DALLAS RY. & TERMINAL CO. v. TRAVIS et al.

No. 1500-6241.

Commission of Appeals of Texas, Section B.

January 23, 1935.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Annie Travis and another against the Dallas Railway & Terminal Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [46 S.W.(2d) 743], and defendant brings error.

Affirmed.

Worsham, Rollins, Burford, Ryburn & Hincks, Autry Norton, and Logan Ford, all of Dallas, for plaintiff in error.

John W. West and James P. Miller, both of Dallas, for defendant in error.

RYAN, Presiding Judge.

Annie Travis and her husband, Robert Travis, brought this suit against the Dallas Railway & Terminal Company, operating a street railway system in the city of Dallas, to recover damages for personal injuries alleged to have been sustained by her while a passenger on one of the company's street cars.

She boarded the car, paid her fare, took a step up from the vestibule to the body of the car, and before she had reached a seat, the motorman started the car with a jerk, throwing her to the floor and injuring her. She was carrying a small hat box, purse, and umbrella. The umbrella had a ring, was on her right arm, the purse in her right hand, and the grip or hat box in her left hand.

The case was submitted to a jury, on special issues, resulting in a judgment against the company for $500, which was affirmed by the Court of Civil Appeals. 46 S.W.(2d) 743, 745.

The trial court submitted the issues, substantially: (1) Was plaintiff thrown to the floor of the street car in question by a jerk of said street car on the occasion in question; (2) did the motorman start said street car with a jerk—all of which were answered, "Yes."

The jury then, in response to appropriate special issues, found that the action of the motorman was negligence of the defendant and the proximate cause of the injuries sustained by plaintiff and not the result of an accident.

The court instructed the jury that "by the term negligence is meant a failure to use a high degree of care," meaning, "that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances." The court then defined "proximate cause" and "new independent cause."

It is the settled rule in this state that street railway companies are common carriers of passengers, with duties and responsibilities the same as those of a railroad company carrier of passengers, and are required to exercise a high degree of care and skill in their transportation by providing suitable tracks, rolling stock and appliances, and in the management of their business and movement of their cars. San Antonio St. Ry. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752 (w. e. refused); El Paso Elec. Co. v. Harry, 37 Tex. Civ. App. 90, 83 S. W. 735; Citizens' Ry. Co. v. Craig (Tex. Civ. App.) 69 S. W. 239 (w. e. refused); Dallas C. E. St. Ry. Co. v. Broadhurst, 28 Tex. Civ. App. 630, 68 S. W. 315 (w. e. refused); Galveston, H. & S. A. Ry. Co. v. Thornsberry (Tex. Sup.) 17 S. W. 521; Houston & T. C. Railway Co. v. Gorbett, 49 Tex. 581; Gulf, C. & S. F. Ry. Co. v. Smith, 87 Tex. at page 353, 28 S. W. 520; Missouri-Kansas-Texas Ry. Co. v. Hail (Tex. Com. App.) 48 S.W.(2d) 589; Spellman v. Rapid T. Co., 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753.

It is undoubted that Mrs. Travis was a "passenger" on the company's car and its duty was to exercise a high degree of care for her safety, failure to do which was negligence. The trial court correctly instructed the jury accordingly. Indeed, the company seems not to have objected to that portion of the charge.

Of course, it was Mrs. Travis' duty to exercise "ordinary" care for her own safety, otherwise she was contributorily negligent and may not recover. Whether she was so contributorily negligent became a question of fact for the jury. H. & T. C. Ry. Co. v. Gorbett, 49 Tex. 573; Dallas Rapid Transit Co. v. Payne, 98 Tex. 211, 82 S. W. 649.

Upon this point the court submitted issue, viz. (No. 6): Did Mrs. Travis fail to exercise ordinary care for her own safety as to where she stepped while undertaking to walk inside the street car, which the jury answered, "No."

The jury found, also, that the hat box, or other object Mrs. Travis was carrying at the time, caused or contributed to cause her to fall, but found further that she did not fail to exercise care for her own safety in permitting said hat box, or other object she was carrying at the time and place in question, to cause or contribute to cause her fall; the jury found, also, that she did not fail to exercise ordinary care for her own safety in not holding to some part of the car at the time she undertook to step from the vestibule up into the body of the car, nor in the matter of giving her attention to the starting of the car. The jury found, also, that she failed to brace herself or make some effort to maintain her balance immediately before her fall, but such failure to brace herself or make some effort to maintain her balance did not proximately cause or contribute to cause her...