G., H. & S. A. R'Y Co. v. Smith

• Decision Date: 05 May 1883
• Docket Number: Case No. 3818.
• Citation: 59 Tex. 406
• Court: Texas Supreme Court
• Parties: G., H. & S. A. R'Y CO. v. FRENCH SMITH.

59 Tex. 406

G., H. & S. A. R'Y CO.

v.FRENCH SMITH.

Case No. 3818.

Supreme Court of Texas.

May 5, 1883.

APPEAL from Guadalupe. Tried below before the Hon. Everett Lewis.

Appellee sued to recover for personal injuries received while alighting from the cars of appellant at Kingsbury depot, claiming that the injuries were caused by the negligence of the servants of appellant in not stopping the train for the time required by law.

Appellant defended upon the ground that plaintiff, in alighting from the train while in motion, was guilty of such contributory negligence as precluded a recovery upon his part.

Verdict and judgment for appellee for $1,250.

E. P. Hill, for appellant.

W. E. Goodrich, also for appellant.

John Ireland, for appellee.

WATTS, J. COM. APP.

Negligence upon the part of appellee in alighting from the moving train is asserted as a defense against a recovery for the injuries received by him in falling from the platform as he stepped from the train.

The supreme court of Arkansas, in the case of St. Louis, I. M. & S. R. R. Co. v. Cantrell, reported in American and English Railroad Cases, vol. 8, part 1, p. 202, said: “That it is imprudent and want of care, as a general proposition, to alight from a train while it is in motion; but whether it was so in a particular case must depend upon the circumstances under which the attempt was made. It would not be so if the train was moving so slowly that no damage could be reasonably apprehended.”

In Chicago & Alton R. R. Co. v. Bonfield, American and English Railroad Cases, vol. 8, part 3, p. 494, the supreme court of Illinois made use of the following observations: “It is claimed that alighting from a train in motion is such negligence as to preclude all recovery, whatever the circumstances. This may be true, and no doubt is, when the company is not in fault, and the train has considerable speed; but it is not necessarily true where it is a question of comparative negligence. A train might be barely in motion, moving so slowly as to get off would be attended with no danger whatever, etc. It is the long-settled doctrine of this court that negligence is a fact the finding of which is clearly within the province of a jury.”

With us the rule is also well settled, that, in the absence of a statute defining the acts which constitute negligence, then it is a question of fact for the determination of the jury. T. & P. Railway Co. v. Murphy, 46 Tex., 357. We have no statute which makes it an act of negligence to get off a moving train, and it would be error for the court to instruct the jury that such act...