Gilmore v. Houston Electric Co.

• Citation: 102 S.W. 168
• Parties: GILMORE v. HOUSTON ELECTRIC CO.
• Decision Date: 08 May 1907
• Court: Court of Appeals of Texas

102 S.W. 168

GILMORE v. HOUSTON ELECTRIC CO.

Court of Civil Appeals of Texas.

May 8, 1907.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Lucy L. Gilmore against the Houston Electric Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Stanley Thompson, for appellant. Baker, Botts, Parker & Garwood and C. R. Wharton, for appellee.

FLY, J.

Appellant sued appellee for damages which she alleged she sustained by a fall from a moving street car belonging to appellee. She alleged that she was a passenger on a car, and told the conductor where she wished to get off, and he gave the customary stop signal, and, as the car neared the place and was gradually stopping, the conductor took her by the arm to assist her in alighting, and some one threw a rock at the car, and the motorman, being new and inexperienced, became greatly excited and greatly increased the speed of the car, and the conductor, "being wholly inexperienced and incompetent and becoming greatly excited," pulled or pushed appellant off the car while it was moving at a high rate of speed, and injured her. There were 12 or 14 pages of allegations about a strike of the street railway employés being in progress and other matters not necessary to mention, as appellant in her brief places her ground of recovery on the allegation of negligence of the conductor in pulling or throwing her off the car. The cause was tried by jury and a verdict and judgment was rendered for appellee. The evidence of all the witnesses, except that of appellant, showed that a rock was thrown at the car and that she sprang up and jumped off while the car was moving; that the conductor used every effort to prevent her from jumping off, even catching hold of her for that purpose; that she pulled loose from him and sprang off; that the employés of appellee were not negligent, and appellant was injured through her own negligence in jumping off the car while it was in motion.

The opening paragraph of the charge of the court is as follows: "You are charged that the railroad company is not an insurer of the safety of passengers, but must exercise toward them such a high degree of care as a highly prudent person would exercise under the same or similar circumstances; and it is the duty of persons taking passage with the said company to exercise ordinary care to protect themselves from injury, and the failure of the said company to exercise said high degree of care would be negligence, and the failure of the passengers to exercise ordinary care would be negligence." That charge is said to be erroneous in the first assignment of error, and is supported by the following propositions: "Proposition first under first assignment: A charge that does not correctly state the law applicable to the case is erroneous. Proposition second under first assignment: A charge that is indefinite and so much so as to be confusing is erroneous." What the error is in the charge is not pointed out in assignment or propositions; the latter having no more application to the assignment under which they are placed than to any other assignment of error complaining of any other charge. It may be safely conceded that both of the propositions state correct legal propositions, but they cover too much territory to render them efficacious and available. If it be the purpose of the assignment of error to attack the charge on the ground that it does not state the proper degree of care required of street railways towards passengers, it may be said that it is properly stated in the charge. A "highly prudent person" we think would be equivalent to a "very prudent, cautious, and competent person." In the case of Railroad v. Halloren, 53 Tex. 46, 37 Am. Rep. 744, it is said that the passenger has the right to demand "that high degree of care which very cautious persons generally, in their line of business are accustomed to use, under similar circumstances, to prevent danger." In the case of San Antonio Traction Co. v. Warren (Tex. Civ. App.) 85 S. W. 26, a charge almost identical in language with the one now under consideration was approved. In Railway v. Finley, 79 Tex. 85, 15 S. W. 266, the court said that "the company owed her the duty of exercising the highest degree of care." In another portion of the opinion the degree of care is denominated the "greatest care." In the case of Railway v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829, the...