Gulf, C. & S. F. Ry. Co. v. Rowland

• Decision Date: 28 January 1897
• Citation: 38 S.W. 756
• Parties: GULF, C. & S. F. RY. CO. v. ROWLAND.
• Court: Texas Supreme Court

38 S.W. 756

GULF, C. & S. F. RY. CO. v. ROWLAND.

Supreme Court of Texas.

January 28, 1897.

Error to court of civil appeals of Third supreme judicial district.

Action by J. C. Rowland against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiff having been affirmed by the court of civil appeals (35 S. W. 31), defendant brings error. Reversed.

Matthews & Wood, J. W. Terry, and Chas. K. Lee, for plaintiff in error. C. B. Randell, for defendant in error.

GAINES, C. J.

Defendant in error brought this suit against plaintiff in error to recover damages for personal injuries, and obtained a judgment in the district court, which was affirmed in the court of civil appeals. To reverse the judgment in the latter court, the plaintiff in error has applied for and obtained this writ of error.

In his amended petition, the plaintiff below, after averring that he became a passenger on defendant's cars destined to a certain station on its line, known as "Lometa," proceeded to set forth the specific acts of negligence of which he complained, in the following language: "Plaintiff alleges that when said passenger train arrived at the station, Lometa, it being night and very dark, notice was given by the conductor of said passenger train to plaintiff of the arrival of said train at said station, and plaintiff was notified by him to get off and alight from said train; that immediately after said notice said passenger train stopped at said station, and plaintiff, believing that he could have sufficient time to safely alight from said train, attempted to do so; that while plaintiff was so engaged, in a careful and proper manner, in attempting to alight from said train, and while he was in the act of so doing, the defendant's agents and servants in charge of said train, without any fault or negligence on the part of plaintiff, knowing the situation of plaintiff, so negligently and carelessly conducted themselves in the management and handling of said train and the engine thereof that said engine and train were suddenly moved and jerked, and, without stopping a sufficient length of time in which to allow plaintiff to alight therefrom with safety, were started and put in motion, thereby causing plaintiff to fall and be violently thrown a great distance against the station, depot, platform, and ground, whereby plaintiff was seriously, painfully, and permanently injured." No other negligence is charged in the plaintiff's pleading. The defendant, after pleading a general denial, answered specially, in substance, that, if the plaintiff was injured at all, his injury was caused by his own negligence "in jumping from" the train while it was in motion. The plaintiff testified, in effect, that when the train reached the station he proceeded to leave it without unnecessary delay, and that as he was descending the steps of the coach the train was suddenly set in motion, and that he was thrown upon the depot platform and seriously injured. On the other hand, there was testimony tending to show that the train stopped a sufficient time for him to have left the car, and that when he did attempt to alight the train was in motion, and had moved some 20 or 30 feet. Therefore the issues were sharply presented, both by the pleading and the evidence: (1) Were the servants of the company negligent in putting the train in motion while the plaintiff was in the act of dismounting and (2) was the plaintiff guilty of negligence in attempting to alight after the train was set in motion? So far as we can see, there was no question of proximate cause involved in either issue. If the train was negligently started while the plaintiff was in the act of leaving the coach, and if he was, by reason thereof, thrown down and injured, and if he himself was not negligent, he was clearly entitled to recover. On the other hand, if his act in attempting to alight from the train was negligent, it immediately and directly contributed to the resulting injury, and he was not entitled to a verdict. Such being the issues, the court, after having given charges which presented...