Ft. Worth & D. C. Ry. Co. v. Yantis

• Citation: 185 S.W. 969
• Decision Date: 18 March 1916
• Docket Number: (No. 8347.)
• Parties: FT. WORTH & D. C. RY. CO. v. YANTIS.
• Court: Court of Appeals of Texas

Page 969

185 S.W. 969

FT. WORTH & D. C. RY. CO. v. YANTIS.

(No. 8347.)

Court of Civil Appeals of Texas. Ft. Worth.

March 18, 1916.

Rehearing Denied April 22, 1916.

Appeal from District Court, Wichita County; E. W. Nicholson, Judge.

Action by G. R. Yantis against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Carrigan, Montgomery & Britain, of Wichita Falls, and Thompson & Barwise and G. W. Wharton, all of Ft. Worth, for appellant. A. A. Hughes, T. R. Boone, and Fitzgerald & Cox, all of Wichita Falls, and H. F. Weldon, of Bowie, for appellee.

CONNER, C. J.

On February 6, 1914, the appellee, Dr. Yantis, took an early morning train out of Wichita Falls, Wichita county, where he resided, to Electra, in the same county, over appellant's line of railway. He returned from Electra to Wichita Falls in the evening, about 4 or 5 o'clock. The train upon which he was a passenger on the return was designated in the evidence as a "plug" passenger train, consisting of an engine, baggage car, and two passenger coaches. The baggage car on the return trip was attached to the engine, and next to the baggage car was coach 66, and the next was coach 62, which constituted the rear car of the train. Coach 66 was divided into two compartments, one for colored passengers and the other for white. The negro compartment was located in the front or south end of the car as it journeyed toward Wichita Falls, and on this trip was unoccupied save by the conductor and the newsboy on the train. Dr. Yantis, a Mr. Lyne, a Mr. Deering, and Mr. Jones, one of appellant's claim agents, were all occupants of the northern, or white, compartment of the car. The evidence fails to show that there were any ladies or children in this car. When the train reached Wichita Falls and had been stopped at its regular place at the station, Yantis and Lyne and others left their seats and proceeded south through the compartment they were in and into and through the south, or negro, compartment, and on out and on to the platform at the south end of the car. Very shortly preceding this, however, the conductor had gone out at the south end of the car and dropped off the train a few yards before it stopped, for the purpose of getting orders. The brakeman, when the train stopped, proceeded north out of the white compartment of car 66, left the north door open, opened the south door of the rear car, and got upon the ground with the stool to assist passengers to alight. No one was stationed at the door, or at the steps, or upon the platform at the south end of car 66. Jones, the claim agent above named, preceded Yantis, and Lyne was immediately behind Yantis. Jones passed on over the platform, down the steps, and upon the depot platform, which was paved with brick. Yantis, as he alleged and testified, slipped just as he was passing through, or just after he had passed through, the door of the car, and fell on the platform, and from the platform he fell down the steps and on the brick pavement upon his head, and received thereby, as alleged, serious injuries. Lyne testified to the effect that Yantis slipped upon a banana peel, which he (Lyne) kicked out of the way. The Mr. Deering named testified to the effect that some time before the train had arrived at Wichita Falls, he visited the south end of the car for the purpose of getting a drink, and in standing at the door noticed a banana peel upon the outer sill of the door, or immediately adjoining the sill that he did not see the banana peel when Dr. Yantis fell, but noticed a smeared place upon the platform or matting in front of the door; that the smeared place was an inch or more wide and several inches long, and was plainly visible. The day was cool or cold. There were no defects or deficiencies of any character in the car or depot platforms, and the car was standing perfectly still at the time Dr. Yantis proceeded from the car. Jones, the claim agent, had just got down from the car and stepped on the depot platform when Yantis fell, and he testified that he proceeded at once to make an examination to determine the cause of the fall, and made a thorough search for anything and everything that could have brought it about. He testified that he failed to find the banana peel, or anything else, upon the platform or in the vestibule of the car, or upon the ground about, nor did he find any smeared place upon the platform of the car. Some seven passengers, who were standing at that end of car 66 with a view of taking passage thereon in its further journey toward Ft. Worth, also testified to the effect that they, too, had made an examination of the platform vestibule and grounds, and had failed to find a banana peel, or other thing that could have caused the fall, and also failed to find any evidence of a "smeared" place, as mentioned by Deering. In the resultant suit by Dr. Yantis for the recovery of damages because of his fall, he alleged that the appellant company was guilty of negligence in leaving the south door of car 66 open, thus inviting him and other passengers to go out thereat, and in failing to have an attendant at such door for the purpose of aiding and assisting passengers to alight, and in failing to keep its platform and steps clear of banana peels and other obstruction rendering them unsafe, and in failing to have an attendant at the steps of the car with a stool to aid alighting passengers. The defendant pleaded the general denial, and further pleaded that Dr. Yantis was guilty of contributory negligence in the manner of his exit and fall. The case was tried before a jury, and resulted in a verdict and judgment in the plaintiff's favor for $20,000, and the defendant has appealed.

The court, after defining the character of care required of appellant for the safety of its passengers, further instructed the jury in its second paragraph as follows:

"Now if you find from a preponderance of the evidence in this case that, on the 6th day of February, A. D. 1914, the plaintiff was a passenger on one of the defendant's trains; and if you further find and believe that when said train arrived in Wichita Falls, the plaintiff attempted to alight from the coach in which he was traveling, and while passing out of said coach door and onto the platform or vestibule of said coach, he stepped upon a banana peel, lying on the floor of said coach or platform or the sill thereof, and thereby slipped and fell to the brick pavement and thereby received the injuries charged in the plaintiff's petition, and that the plaintiff was thereby injured and damaged; and if you further find and believe from the evidence that said banana peel was on the floor of the coach or platform of said car, or on the doorsill thereof, and that said banana peel was permitted to be on the floor of the coach or platform of said car, or on the doorsill thereof, by the agents, servants, or employés of defendant company; and if you further believe that the agents, servants, or employés of defendant company in charge of its trains were guilty of negligence in so permitting said banana peeling to be and remain on the said floor of said coach or platform of said car, or on the sill thereof, that is, if they did so permit it, or if you find and believe from the evidence that the door of the coach where plaintiff attempted to alight from said coach was open, and that there was no attendant at said door; and if you further find and believe from the evidence that it was necessary for the safety of defendant's passengers having said door open, that is, if it was open, to have had an attendant at said door; and if you further find and believe from the evidence that the defendant company was guilty of negligence in having or leaving said door open, if it was open, and in failing to have an attendant at said door with a step stool in order to assist passengers to alight from said coach, that is, if said door was open, and if it did fail to have an attendant at said door; and if you further find and believe from the evidence that such acts of negligence, if any, were the direct and proximate cause of the plaintiff's injury, if any — then in either event, if you so believe, you will find for the plaintiff such an amount as damages as you may find from the evidence he is entitled to, unless you should find for the defendant under other instructions hereinafter given you."

The defendant objected to the charge below, and here insists that it is erroneous, in that the evidence did not authorize the submission of the second ground of liability presented in the charge, and to our minds it is plain that the objection must be sustained. In considering the question thus presented, it is to be observed that the issue of the presence of the banana peel upon the platform was submitted distinctly in the preceding part of the charge, and that the objectionable part of the charge authorized the jury to find for the plaintiff, regardless of the issue of whether there was a banana peel on the doorsill or upon the platform of the car, if they found that the door was open, that there was no attendant there or at the steps below, and that such failures constituted negligence. As stated, the depot platform, the car platform, steps, and other portions of the car, aside from the banana peel, if any, were without defect and dry, and no one was in car 66 except adult males, Dr. Yantis, as the testimony shows, being some 35 years old, and at the time in his normal state of health. It was further shown that on trains of the character involved, it was customary to have but one attendant at the foot of the car steps to assist such passengers as might be in need of assistance, and that the attendant provided for the train in question was at his proper place. Appellee has cited a number of cases where it has been held that it was proper to submit for the jury's determination the question of whether, under given...