Galveston, H. & S. A. Ry. Co. v. Easton

• Decision Date: 19 December 1923
• Docket Number: (No. 7054.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 257 S.W. 924
• Parties: GALVESTON, H. & S. A. RY. CO. v. EASTON.
• Court: Texas Court of Appeals

Page 924

257 S.W. 924

GALVESTON, H. & S. A. RY. CO. v. EASTON.

(No. 7054.)^*

Court of Civil Appeals of Texas. San Antonio.

December 19, 1923.

Rehearing Denied January 16, 1924.

Appeal from District Court, Maverick County; Joseph Jones, Judge.

Action by Evan S. Easton against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, W. B. Teagarden, of San Antonio, and Boggess, Smith & La Crosse, of Del Rio, for appellant.

Sanford & Wright, Ben V. King, and David E. Hume, all of Eagle Pass, and Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe. G. Carter, all of San Antonio, for appellee.

FLY, C. J.

This is an action by appellee to recover damages from appellant, in the sum of $75,520, alleged to have accrued from personal injuries inflicted on him, while a passenger on a railway train belonging to appellant, through its negligence. Appellant pleaded assumed risk and contributory negligence. The cause was submitted to a jury on special issues, and, upon the answers returned thereto, judgment was rendered in favor of appellee for $10,520.

In reply to the special issues submitted by the court, the jury answered: That the train on which appellee was riding, and at a time when he was standing on the platform of a car, was violently jerked; that appellant nor its employees were negligent in giving such jerk or lunge; but that the same was necessary and unavoidable, and the train was handled with the highest degree of care. The jury also found that appellant caused, or permitted, the vestibule doors of the platform on which appellee was standing to remain open while the train was running, and that such act was negligence and directly caused the injuries received by appellee, and that appellee was not guilty of contributory negligence in going upon the platform. The damages were assessed at $10,520. At the request of appellant issues were presented to the jury, which were answered to the effect that appellee was not guilty of contributory negligence, and that appellee fell by reason of the jerk of the train.

The evidence showed that appellee, 48 years of age, was a physician regularly engaged in the practice of medicine in Eagle Pass, Tex., and had practiced medicine there for 18 years. On the night of October 7, 1921, appellee boarded the train of appellant at Eagle Pass, and after seeing that his baggage was in the berth, reserved by him in the sleeping coach, he went into the smoking compartment to smoke, but found it had been arranged for the porter's sleeping place. The compartment was not lighted, and appellee went out on the platform of the sleeping coach, where he found the porter fixing the floors of the vestibule of the sleeping coach, and not to interfere with him appellee stepped over to the platform of the day coach, and just as he did so there was a violent and terrific jerk, and appellee was thrown forward against the day coach, and he caught the handrail with his right hand, but his feet went down the steps, and then he seized the handrail with his left hand, but could not prevent his legs from being thrown under the coach wheels, which severed the right leg entirely below the knee and mashed three toes off the left leg. When the lunge of the train came, appellee was just crossing to the platform of the day coach. Appellee lost his right leg from about 6 inches below the knee and three toes, including the big toe, from the left foot. He was in a hospital for 4 months and suffered excruciating pain. Since losing his right leg and left toes, he has found it dangerous to attempt to use an automobile. He has been changed from a strong, healthy, active, man into a man as decrepit as one of 70 or 80 years of age. Before his injury appellee had earned in 6 months about $2,500, and since the accident he earns about $30 a month.

The first, second, third, and fourth propositions are overruled. To have done as appellant contends the court should have done — that is, invade the domain of the jury and take the case away from them — would, under the facts, have been most egregious error. In fact, such practice would scarcely be tolerated in a federal court. As long as the Texas system makes the jury the exclusive judges of the credibility of witnesses and the weight to be accorded their testimony, so long must disputed questions of fact be submitted to juries. As to what constitutes negligence is usually a question of fact, and it will be error to deprive the jury of the privilege of passing upon it. It is not negligence, as a matter of law, for a passenger to go upon the platform between cars and remain there to smoke, or for any other lawful purpose. Whatever may be the rule in other states, the Texas rule is that standing upon the platform of a moving car is not negligence per se. Railway v. Ball, 28 Tex. Civ. App. 287, 66 S. W. 879; Railway v. Christian (Tex. Civ. App.) 191 S. W. 175, writ refused by Supreme Court. These cases clearly enunciate Texas law, and it may not be inappropriate to say that this court has no power or authority to assume that the testimony of appellee, because the witnesses of appellant may have contradicted him, should not be credited. It may be that an appellate court might assume the authority to reverse a judgment on the facts when a party to the suit not only is contradicted by disinterested witnesses, but has by his conduct placed the stamp of falsity upon his testimony; but even under such circumstances such power will be reluctantly assumed. Railway v. Somers, 78 Tex. 439, 14 S. W. 779. In the cited case, as well as in the case of Railway v. Walker, 38 Tex. Civ. App. 76, 85 S. W. 28, decided by this court, the appellee had shamelessly and recklessly contradicted himself and so outraged reason and common sense in his testimony as to shock the conscience of the court, and for that reason, and that alone, the judgment was reversed. Those appellees had amended their testimony to meet the decisions of the courts on former appeals, and it was apparent that the testimony was false. No such case is presented by the facts of this case, and a judgment will not be reversed merely because appellant had several witnesses to contradict the statements of appellee. The jury credited his testimony rather than that of the witnesses of appellant, as they had the right to do.

Through the fifth proposition complaint is made of the action of the court in submitting issues as to the vestibule of the car being open, and it is based on the assumption that appellee was guilty of contributory negligence by the act of...