Fort Worth & D. C. Ry. Co. v. Armitage

• Decision Date: 06 May 1931
• Docket Number: No. 3603.,3603.
• Citation: 39 S.W.2d 108
• Parties: FORT WORTH & D. C. RY. CO. v. ARMITAGE.
• Court: Texas Court of Appeals

Page 108

39 S.W.2d 108

FORT WORTH & D. C. RY. CO. v. ARMITAGE.

No. 3603.

Court of Civil Appeals of Texas. Amarillo.

May 6, 1931.

Rehearing Denied June 3, 1931.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Action by A. W. Armitage against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

W. W. Gibson and Morgan, Culton, Morgan & Britain, all of Amarillo, and Thompson & Barwise, of Fort Worth, for appellant.

E. O. Northcutt and H. D. Bishop, both of Amarillo, for appellee.

HALL, C. J.

This is an action to recover damages for personal injuries instituted by appellee Armitage against the defendant railway company.

It appears that the appellee came to Amarillo seeking employment. That his occupation was that of hoisting engineer, and after remaining in Amarillo a day or two, he decided to go either to Denver or Chicago. He purchased a ticket to Dalhart, Tex., intending to leave Amarillo on the night of March 21st, on a west-bound passenger train which left at 9:15 p. m. Entering the station some time before the departure of his train, he purchased his ticket, bought a Denver paper, and was reading it when the train arrived. According to his testimony he did not hear the train arrive, but heard the station man call, "All aboard for the train north." After hearing this call he went into the toilet and heard the station man again call, "All aboard train north." He then hurriedly left the depot to get on the train, negligently leaving his overcoat in the toilet. He testified that he got on the train between the first two passenger cars, one of the vestibules of which was open. He looked into the second car and saw that the seats were practically all taken. He then turned to the left and went into the smoker, taking the first seat on his right as he went in. That he then realized he did not have his overcoat and got up at once and went out on the car platform and saw that the doors next to the depot were closed; that a door on the opposite side of the train was open. He saw none of the crew, so he stepped off of the train at this north door. The train was moving. There were no lights between the tracks on the north side and he stepped off in the dark. That his left foot became tangled in certain rubber hose laying by the side of the track which had been used in servicing the cars, filling the water tanks with water.

The acts of negligence alleged are: (a) In leaving the north door of the train open, unguarded, and unattended; (b) in leaving the rubber hose next to the track; (c) in violating a rule of the company by leaving the side door and trap door of the vestibule open while the train was in motion; and (d) in failing to light the premises on the north side of the train.

In addition to demurrer, exceptions, and a general denial, defendant pleaded in substance: (a) That the injury was due to the failure of plaintiff to exercise care for his own safety, in that he attempted to alight from a moving train at night on the wrong side; (b) his attempt to so alight without looking to see if there were any objects near the track to cause him to stumble; (c) that in so attempting to alight, plaintiff repudiated his contract obligation and abandoned the obligations imposed upon him to continue his journey to Dalhart, and thereby released defendant from its contract obligation and himself prevented defendant from performing its contract and obligation and thereby assumed the risk of his own voluntary act in so disembarking; (d) that plaintiff was not injured because of any violation by defendant of any duty it owed to him under such contract, because by attempting to alight before reaching his destination, without invitation or knowledge on the part of the defendant and at a point and place not contemplated by the contract, he released defendant from the obligations it owed to him under said contract.

The court submitted the case to the jury upon special issues, which, with the answers, are as follows:

1. (a) Did the defendant Fort Worth & Denver City Railway Company leave a hose at the place where the plaintiff, A. W. Armitage, got off the train in question? Answered: "Yes."

(b) If so, was the leaving of said hose at said place negligence on the part of the defendant, under the circumstances, as the term "negligence" has been defined in this charge? Answered: "Yes."

(c) Was such negligence, if any, the proximate cause of any injury to the plaintiff? Answered: "Yes."

2. (a) Was the act of the plaintiff in alighting from the train in question, at the time and place and under the circumstances existing at the time he alighted therefrom, negligence upon the part of the plaintiff as the term "negligence" has been defined in this charge? Answered: "No."

3. Was the injury received by the plaintiff upon the occasion in question the result of an accident? Answered: "No."

4. What amount of money, if paid now, would reasonably compensate plaintiff for the injuries, if any, sustained by him as the proximate result of the negligence, if any, upon the part of the defendant? Answered: "$8,000.00."

Special issue No. 1 requested by defendant: Did plaintiff, at the time he disembarked from defendant's train, do so with the expectation of not continuing the journey on the train but continuing his journey on a subsequent train? Answered: "No."

The material facts upon which this action is based are practically undisputed. The plaintiff testified that he was 49 years of age and, when able to secure work, his average monthly wage was about $230. That he had not been employed for many months and had been traveling over the country seeking work. That his last employment was at St. Petersburg, Fla. That he left there intending to go to Boulder Dam but, upon reaching El Paso, ascertained that work was not available at Boulder. That he then came to Amarillo, traveling on trucks and automobiles which picked him up along the road. That he reached Amarillo on the night of March 20th, and on the morning of the 21st endeavored to find work. Being unable to do so, he decided to go either to Denver or Chicago. He intended to go to Dalhart and make up his mind there whether he would go to Denver or Chicago. That about 5 o'clock in the afternoon he went to the defendant's depot to inquire about the movement of trains and learned that a train would leave about 9:15 that night. That he went back uptown and later returned to the station close to 9:15. After he returned he sat down in the depot, then bought his ticket to Dalhart and a Denver paper, and, as heretofore stated, he did not hear the train when it arrived, but heard the calls. That after forgetting his overcoat he went to the opening on the south side of the train next to the depot, exhibited his ticket to the company's employee, who waved him onto the train. That he did not remember whether he got on to the smoker vestibule or the vestibule of the chair car. That the train was so arranged that the smoker was on the west or left-hand side and the chair car on the east of the entrance. That after getting on board he sat down and commenced to read his paper, and just as the train started to move, realizing that he did not have his overcoat he got up at once and went on the car platform and saw that the doors next to the depot were closed. That a door on the right-hand side of the train, or north side, was open. That he saw none of the crew there and he disembarked at this north door. He saw that the train was moving but intended to get his coat. That he went down the steps and glanced at the ground and so far as he could see it was in a smooth condition. While there were no lights between the tracks, since he saw nothing to prevent it, he got off the step. That just as his left foot was coming, he got tangled up in the rubber hose which was alongside of the train and stumbled. This threw him under the train, which passed over both his feet, so that both legs had to be amputated just below his knees. He testified that there was plenty of light on the depot side or south side of the train where he embarked. That he knew the doors of the train were closed on the depot side, and he further knew the train was gradually increasing its speed. He also knew that he was not getting off on the depot side and that it was dark on the north side. He further testified that the hose he stepped on was not by the car door at the place where the train had been stopped while it was waiting to take on passengers, but was laying on the ground a car or a car and a half length farther west toward the head of the train, and that very likely it would have been about the baggage car before the train started. He testified that immediately adjoining the depot there was a brick platform and beyond it the house tracks or station tracks. That he boarded the train by stepping from the brick platform onto the train which was on the first track. He testified that he had had about fifteen years' experience in railroading and knew how to get off of a train. That just before alighting he reversed his position to get off, that he turned around and backed down the steps and put his right hand on the left handle and his left hand on the right handle, and then let go with his right hand as he stepped out on the ground, which would throw him facing the train, but that he still held with his left hand. That just as he let go with his left foot and before he ever turned loose his hold with his left hand, he became entangled in a rubber hose and was tripped and thrown under the train and injured. He further testified that at the time he got off the train was not going more than three miles an hour.

The testimony of J. W. Mode, defendant's division superintendent, was to the effect that the grounds on the north side of the train where plaintiff disembarked had never to his knowledge been used by passengers, either in getting on or off the trains....