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

• Court: Texas Court of Appeals
• Writing for the Court: Huff
• Citation: Ft. Worth & D. C. Ry. Co. v. Taylor, 162 S.W. 967 (Tex. App. 1913)
• Decision Date: 13 December 1913
• Parties: FT. WORTH & D. C. RY. CO. v. TAYLOR.

162 S.W. 967

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

Court of Civil Appeals of Texas. Amarillo.

December 13, 1913.

Rehearing Denied January 17, 1914.

Appeal from District Court, Armstrong County; J. N. Browning, Judge.

Action by R. M. Taylor against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Turner & Wharton, of Amarillo, and Thompson & Barwise, of Ft. Worth, for appellant. H. H. Cooper, of Houston, and J. A. Stanford, of Waco, for appellee.

HUFF, C. J.

R. M. Taylor, the appellee, brought suit for damages against appellant, the Ft. Worth & Denver City Railway Company, for injuries received by his wife while a passenger on one of appellant's trains. The ground of negligence alleged is that the station was not announced or opening sufficiently convenient made for the exit of passengers, the train being a vestibule one and no announcement made of the means for exit, and the train was not stopped long enough to allow Mrs. Taylor to alight therefrom in safety. The issues and facts of this case will be found more at length in the report of this case on the former appeal. 153 S. W. 355.

The appellee in this case presents for our consideration the proposition that inasmuch as no assignment is presented in this court to the action of the court in overruling the motion for new trial, calling in question the sufficiency of the evidence to support the verdict, therefore it is to be assumed that appellant was guilty of the negligence alleged, and that such negligence was the proximate cause of the injury, and therefore precludes further inquiry into the assigned error. We think, in the absence of such assignment, we may infer from the verdict that there was testimony sufficient to support it, but it does not necessarily follow that error by the trial court did not "amount to such denial of the rights of appellant as was reasonably calculated to cause and probably did cause an improper judgment in the case." The appellant has the right to have the fact or combination of facts, which it contends exonerates it from liability, submitted to the jury for their consideration. If there is evidence which, if a jury believe, would exonerate it, and they are not submitted to the jury, such action is "reasonably calculated and probably did cause an improper judgment." If the cause was improperly submitted to the jury under the charge of the court, it becomes our duty, as we understand it, to examine the record and ascertain if this error "was reasonably calculated and probably did" obtain an improper verdict. If it was not so calculated, then we can treat it as immaterial. If it was so calculated, then we should reverse the case. We therefore conclude it to be our duty, even though there is no assignment assailing the verdict because of the insufficiency of the testimony, to examine the case and ascertain if appellant's right has been sufficiently protected and presented in the trial of the case.

We believe the case can best be understood by setting out the sixth paragraph of the court's charge in full: "Bearing in mind the foregoing definitions and instructions, if you believe and find from a preponderance of the testimony that the defendant's servants and employés, in charge of the train in question, neglected and failed to keep its said passenger train standing at the station at Claude a reasonable time for plaintiff's wife to safely alight therefrom, and you further believe, from a preponderance of the evidence, that the said servants and employès of defendant caused said train to be started moving before it had stood still for a reasonable time, at said Claude station, for plaintiff's wife, in the exercise of ordinary care, to safely disembark therefrom, and you further believe from the evidence that in causing said train to be started moving, at the time it was started, was negligence, on the part of defendant's servants and employés, in charge of it, as that term has hereinbefore been defined, and you further believe from a preponderance of the evidence that the plaintiff's wife, in the exercise of ordinary care on her part, in attempting to alight from said train, and without negligence on her part, was thrown to the ground and, by reason thereof, received the injuries, or any of them, in the manner and form alleged in plaintiff's petition, or if you believe from a preponderance of the testimony that defendant's employés failed to cause a convenient number of doors to be opened, on the arrival of said train at Claude, for the accommodation of the passengers desiring to disembark from and leave said train at said station, and that said servants and employés in charge of said train neglected and failed to indicate or give notice to the said passengers at what door they could disembark from said train, and you further believe, from the evidence, that the failure, on the part of said servants and employés, to inform plaintiff's wife where she could disembark from said train, and to have a door open convenient to the coach in which she was riding for the purpose, was negligence, as that term has heretofore been defined, and you further believe from the evidence that by reason of such negligence plaintiff's wife was unable, before said train started, to find an opening to disembark therefrom, and that plaintiff's wife, in the exercise of ordinary care on her part, in attempting to alight from said train, was thrown to the ground and by reason thereof was injured, as alleged, and you further believe that such negligence, if any of the defendant, was the proximate cause of the injuries received by plaintiff's wife, then you will find for the plaintiff and assess his damages as hereinafter directed, unless you find for the defendant under instructions hereinafter given you."

Under appellant's first assignment of error we shall treat the second, third, ninth, twentieth, and twenty-first assignments together with the first. The appellant, by its fifth special requested instruction, asks the court to submit the issue affirmatively, which had been submitted negatively by the sixth paragraph in the main charge; that is, if the train was stopped at the station a sufficient length of time, considering all the facts and circumstances, in which to allow Mrs. Taylor time to alight therefrom in safety, and if it was announced by the employés in a reasonable manner, in the car wherein Mrs. Taylor was riding, what part of the train passengers could alight therefrom, and if the employés were not guilty of negligence in the above respect, to find for appellant. The third special charge sought to obtain a submission of the same facts, but it does not cover all the issue. It is suggested by appellant that the issue in this case was whether the train failed to stop a reasonable time, and a finding on this issue in plaintiff's favor that it did not stop long enough necessarily included a finding against appellant's contention that it did stop long enough, and that it was useless to present the issue in a different form, and they further assert, "Jurors should be credited with having some common sense," and so with reference to opening the door for departure therefrom.

The facts in this case presented the controverted issue whether the train was stopped at the station a time reasonably sufficient to permit Mrs. Taylor to alight therefrom, whether there was a door open sufficiently convenient to admit her exit therefrom, and whether the acts of appellant's servants with reference thereto were negligent. The court told the jury, if appellant was negligent in the particulars charged, to find for appellee. If, however, they had found there was no negligence in the particulars charged, they are not instructed what to do. Where, as in this case, testimony leaves the issue to be determined doubtful, owing to its nature or the conflict of testimony, each party has the right to request the court to submit to the jury that phase of the case favorable to them and to request the consideration from their side of the question. In testing the correctness of the charge requested and that given, where the evidence is conflicting or the issues are conflicting arising upon the testimony, the charge must give each party the benefit of the hypothesis that his testimony is true. The question here presented has been submitted in different forms in various courts. It can be said usually that, if the jury find an injury resulted from negligence, such a finding excludes the idea that there was no negligence. Usually the question arises upon the question that some other cause than that of negligence produced the injury. Railway Co. v. Dawson, 34 Tex. Civ. App. 240, 78 S. W. 235; North Texas Traction Co. v. Moberly, 109 S. W. 483; Railway Co. v. Burk, 150 S. W. 748; Id., 146 S. W. 600; Railway Co. v. Ayres, 83 Tex. 268, 18 S. W. 684. This ground of itself perhaps is not sufficient to require a reversal. It appears, however, to be the established doctrine of the courts of this state in a case of this kind, where such charge is requested, to require it to be given. We perhaps could say that no injury is shown in the refusal of the above charge, but we believe the trial court, in submitting the case to the jury, should observe the rule. It can work no hardship and is much the safer practice. It is simple justice to tell the jury if a sufficient and reasonable stop was made, and a door open for exit, reasonably convenient for the passengers, that they ought to find for the defendant. The jury should have been told what to do if they so found the facts and appellant given the benefit of the hypothesis that his testimony was true. The eleventh specially requested charge sought to have the jury instructed that it was the duty of Mrs. Taylor, on arrival of the train at the station, to exercise ordinary care to ascertain from what door of the train she could disembark therefrom, and by the seventh...