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

• Decision Date: 06 December 1921
• Docket Number: (No. 727.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 236 S.W. 521
• Parties: GULF, C. & S. F. RY. CO. v. CONLEY et ux.
• Court: Texas Court of Appeals

236 S.W. 521

GULF, C. & S. F. RY. CO. v. CONLEY et ux.

(No. 727.)^*

Court of Civil Appeals of Texas. Beaumont.

December 6, 1921.

Rehearing Denied December 12, 1921.

Appeal from District Court, Montgomery County; J. L. Manry, Judge.

Action by Charles L. Conley and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

F. J. & C. T. Duff, of Beaumont, and W. N. Foster, of Conroe, for appellant.

McCall & Crawford, of Conroe, for appellees.

HIGHTOWER, C. J.

This is a suit by the appellees, Charles L. Conley and his wife, Susie Conley, against appellant, Gulf, Colorado & Santa Fé Railway Company, for the recovery of damages alleged to have been sustained in consequence of personal injuries received by Mrs. Conley, and for medical bills and physicians' bills paid and incurred in treating Mrs. Conley for such injuries. There were other elements of damages claimed by Charles L. Conley, but such elements are immaterial here, as the record stands before us.

Appellees' petition alleged, substantially, that on the evening of July 2, 1920, Mrs. Conley boarded one of appellant's passenger trains at Conroe, in Montgomery county, to be transported to the little station of Dobbin, on appellant's road in the same county; that Mrs. Conley was unaccustomed to traveling on trains, and on this occasion was accompanied by no one except her little boy, who at that time was nearly seven years of age; that Mrs. Conley had a heavy suit case and four packages, which constituted quite an incumbrance to her; that Mrs. Conley knew that she would arrive at the station of Dobbin after dark, and that she was an entire stranger at that point, knew no one there and that incumbered as she was, she would need assistance from appellant's servants in charge of the train in alighting therefrom; that when appellant's conductor, shortly after the train had started from Conroe, came around to get her ticket, Mrs. Conley informed the conductor that she was unaccustomed to riding on trains, and that she had her little boy with her, and had a heavy suit case and other bundles, and asked the conductor to render her assistance in getting off the train at Dobbin, and that the conductor promised that he would render such assistance. The plaintiff then alleged that the train reached Dobbin that night between 8:30 and 9 o'clock, and that the night was dark, and that Mrs. Conley did not know that the train had reached Dobbin until the train was there and had stopped, and that appellant's agents and servants in charge of the train did not announce in an audible voice to her the station of Dobbin, though she was listening for such announcement, and that she was not aware that the train was actually at the station until another lady in the same coach with her got up from her seat and came back to where Mrs. Conley was sitting and told her that the train was then at Dobbin; that thereupon Mrs Conley immediately, or as soon as she could, incumbered as she was, arose from her seat, and after waking her little boy up started out of the coach in which she was riding towards the front, and carrying with her her grip and bundles, and that after she had proceeded a distance of some five or six seats from where she was sitting the train was started suddenly on its journey, unawares to her, and that she was thereby caused to fall upon the arm of one of the seats in the coach and from there to the floor, and that in consequence of such fall she sustained serious and permanent injuries, which were sufficiently described in the petition.

The petition alleged substantially that appellant's agents and servants in charge of the train were guilty of negligence in failing to properly announce the arrival of the train at Dobbin, and in failing to assist her off the train, after being notified of the necessity for such assistance, and in starting the train before she had been allowed a reasonable time to alight therefrom, circumstanced and incumbered as she was, and that such negligence was a proximate cause of her being thrown over the arm of the seat and to the floor, and injured. The petition then alleged, substantially, that, after being put in motion, and after she had been thrown and injured, as just above stated, the train proceeded some 200 yards distant from the depot at Dobbin before it again stopped, and that the train was again stopped at such distance from the depot, and she was compelled to there alight in the dark, and, incumbered as before stated, and injured as she had just been, and that being thus compelled to get off the train in the dark, at a distance of 200 yards from the depot, and being an entire stranger there, and being already injured, she was greatly frightened, and was compelled, in her injured condition, to walk back a distance of 200 yards to the station, and that on account of such fright and fatigue she was made sick, and sustained further damages in the sum of $2,500. This, while not in detail, states, substantially, the pleading of the appellees in so far as the same is material here.

Appellant answered by a general and several special exceptions, none of which are material here, by general denial, and also by a special plea of contributory negligence, which was, in substance, that when appellant's train arrived at Dobbin its servants and agents properly announced the arrival of such train at the station in an audible voice, and that such train was stopped at Dobbin a reasonably sufficient length of time to have afforded Mrs. Conley an opportunity to alight therefrom, if she had exercised proper care and diligence to do so, but that Mrs. Conley, though having been notified of the arrival of the train at Dobbin, and notwithstanding she had been allowed a reasonably sufficient time in which to alight therefrom, negligently failed to use due and proper care to alight from said train, but remained thereon until it had again started, and that because of such failure on her part she was guilty of negligence which barred her recovery.

The case was tried with a jury, and was submitted on a general charge, and the verdict was in favor of appellees for $2,500, and judgment was entered accordingly.

The first assignment of error relates to the action of the trial court in overruling a special exception relative to an element of damages which, as we view the charge of the court, was not submitted at all for the jury's consideration, and, if the action of the court complained of was error, it became entirely immaterial and the assignment is overruled.

By the second assignment it is complained that the trial court committed affirmative error in its definition of "proximate cause," it being the contention of appellant that the trial court's definition "is inaccurate and erroneous, and is calculated to confuse and mislead the jury and permit the jury to consider an act the proximate cause of an injury, though the injury was not caused or superinduced by said act."

The proposition under the assignment is:

"To be a `proximate cause,' the act or omission must be the direct or immediate cause, having a continuous and natural causal connection between the negligence and the injury, and must not be broken by any intervening act of negligence; and the wrongful act or omission, in order to be the `proximate cause' of injury, must be such that the injury or some similar injury might have been foreseen or anticipated by the exercise of reasonable care."

The court's definition of proximate cause was as follows:

"An act may be said to be the proximate cause of an injury when the injury is the natural and probable consequence of the negligence or wrongful act, and which, in the light of attending circumstances, should have been foreseen."

No authority is cited by counsel for appellant in their brief in support of this assignment and proposition, and we are of the opinion that none could be cited in support of the contention that the trial court's definition of proximate cause was affirmatively erroneous. Appellant did not ask any fuller definition of proximate cause, but merely objected to the court's definition, as before stated. We are certain that the definition given by the court was not affirmatively erroneous, but was correct so far as it went, and, if any fuller definition had been thought necessary for the protection of appellant's rights, a request should have been made therefor. We think that the definition of proximate cause, as given by the court, was, substantially in accord with that approved in the case of T. & P. Railway Co. v. Bigham, 90 Tex. 226, 38 S. W. 162. In the late case of Dawson v. King, 222 S. W. 164, the Commission of Appeals, speaking to the point of proximate cause, said:

"In this, as in all cases involving negligence, in order to liability, it must appear that the injury, not necessarily the precise, actual injury, but some like injury, `was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.'"

See, also, S. A. & A. P. Ry. Co. v. Behne, 198 S. W. 680, and City of Fort Worth v. Patterson, 196 S. W. 251. There are numerous authorities in this state holding, substantially, that the trial court's definition of proximate cause in this case was not affirmatively erroneous. The assignment is overruled.

The third assignment complains of the following paragraph of the court's charge:

"A carrier of passengers is required to exercise the greatest degree of care which can be exercised under all the circumstances short of a warranty of its passengers."

Such charge was objected to by appellant on the ground that the "same does not state a correct rule of law and is more burdensome upon, and imposes a greater duty upon, a carrier of passengers than is required by law, and defendant, therefore, says that the jury may be misled thereby to defendant's injury."

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