Galveston, H. & N. Ry. Co. v. Morrison

• Decision Date: 24 April 1907
• Citation: 102 S.W. 143
• Parties: GALVESTON, H. & N. RY. CO. v. MORRISON.
• Court: Texas Court of Appeals

102 S.W. 143

GALVESTON, H. & N. RY. CO. v. MORRISON.

Court of Civil Appeals of Texas.

April 24, 1907.

Rehearing Denied May 22, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by L. C. Morrison against the Galveston, Houston & Northern Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Baker, Botts, Parker & Garwood and Lane, Jackson, Higgins & Wolters, for plaintiff in error. Lovejoy & Parker and R. W. Houk, for defendant in error.

FLY, J.

Defendant in error sued plaintiff in error to recover damages alleged to have accrued by reason of injuries inflicted on Amanda Morrison, his wife, through the negligence of plaintiff in starting its train while she was in the act of getting off a train on which she was a passenger. Trial by jury resulted in a verdict and judgment for defendant in error in the sum of $1,000.

The facts justify the conclusions that Mrs. Morrison was a passenger on the train of plaintiff in error, on her way from Houston to Seabrook; that when she reached her destination, and the train had stopped, she and her companions promptly started to get off, but as she reached the steps going down from the car the train was suddenly started, and she was thrown to the ground and injured. Sufficient time was not given in which to allow passengers to disembark, and Mrs. Morrison did not jump off, but was thrown off by the sudden starting of the car as she was in the act of getting off. The employés knew that there were passengers to get off at Seabrook. Mrs. Morrison was not guilty of contributory negligence.

In the first assignment of error the following charge is objected to: "The defendant company rested under the duty, in the matter of handling its train and allowing time for passengers to alight therefrom, to use that high degree of care which very prudent, cautious, and competent persons would use under the same or similar circumstances; and, if the defendant used that degree of care, it was not guilty of negligence; if it did not use that degree of care, it was guilty of negligence; and if by reason of and as a direct result of said negligence plaintiff's wife was injured, without contributory negligence on her part, defendant is liable for such damages, if any, as may have been occasioned by said injury." The criticisms of the charge are that it conveyed to the jury the impression that a certain act or omission constituted negligence, and that the degree of care should not have been given, but that it should have been left to the jury to determine the degree of care, under the circumstances, that was required of appellant. There was nothing in the charge that indicated the opinion of the trial judge on the question of negligence, and it was proper to instruct the jury as to the degree of care required of railway companies in connection with their passengers. Appellant frankly admits that the very language of the charge is used in the case of Railroad v. Halloren, 53 Tex. 53, 37 Am. Rep. 744, and other cases, but insists that it should not have been used by the trial court, as it was out of place and confusing. It is stated that the definition of "care" in the case quoted was used by the court in demonstrating "the law of the case in the abstract, and expounding general principles, which would be out of place and frequently confusing when inserted in a charge to the jury." Whether the language was used in discussing an abstract proposition or not in the Halloren Case, charges very similar to the one used in this case have often been approved. San Antonio Traction Co. v. Warren (Tex. Civ. App.) 85 S. W. 26; Railway v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; Railway v. Miller, 79 Tex. 78; Railway v. Finley, 79 Tex. 85, 15 S. W. 266; Railway v. Freeman (Tex. Civ. App.) 85 S. W. 56.

The court submitted to the jury questions of whether Mrs. Morrison was a passenger on appellant's train, whether she was injured in alighting from the train, and if such injury was caused by the negligence of appellant, without contributory negligence on the part of Mrs. Morrison. The court stated the duties appellant owed to its passengers, the duty Mrs. Morrison owed to herself, and stated, if she had not used ordinary care, that she was guilty of negligence, which, if it caused her injuries, prevented a recovery on the part of appellee. The fifth paragraph of the charge closes as follows: "Whether there was or was not negligence on the part of plaintiff's wife, or of defendant, is a question of fact for you to determine from all the evidence; you being the sole and exclusive judges of the facts proved, of the weight of the evidence, and the credibility of the witnesses." Then follow the sixth and seventh paragraphs:

"Guided by these instructions, if you believe from a preponderance of the evidence that the defendant's passenger train, after being stopped at Seabrook Station, was started up by the employés in charge thereof, before a reasonable time had elapsed for passengers thereon to alight, and that the plaintiff's wife was, while in the act of alighting, if she was, by the motion of the train, thrown to the ground, and injured in any of the respects alleged in plaintiff...