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

• Decision Date: 28 June 1913
• Citation: 161 S.W. 932
• Parties: GULF, C. & S. F. RY. CO. v. DAVIS et ux.
• Court: Texas Court of Appeals

161 S.W. 932

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

Court of Civil Appeals of Texas. Ft. Worth.

June 28, 1913.

Rehearing Denied November 15, 1913.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by L. C. Davis and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

See, also, 139 S. W. 674.

Terry, Cavin & Mills, of Galveston, Brown & Lockett, of Cleburne, and Lee & Lomax, of Ft. Worth, for appellant. J. B. Haynes, W. Poindexter, and Walker & Baker, all of Cleburne, for appellees.

CONNER, C. J.

This appeal is from a judgment in appellees' favor for the sum of $12,500 as damages for personal injuries alleged to have been received by Mrs. Davis while she was a passenger on one of appellant's trains on the 16th day of January, 1909. A number of assignments of error relating to the rulings of the court on the instruction and rejection of evidence and to special charges given and refused have been presented, but, in the view that we have taken of the case, it will not be necessary for us to determine them. The vital question, as we conclude, is whether there is any evidence in support of the issue of negligence upon which the case was submitted.

Several grounds of negligence were alleged. All but one, however, were excluded from the consideration of the jury by the court's charge, and of this no complaint is made, so that in our statement of the case we will confine ourselves to the issue of negligence submitted. It was alleged, in substance, that on the evening of the day stated Mrs. L. C. Davis took passage at Cleburne, Tex., upon one of appellant's passenger trains for the purpose of being transported to her home in Alvarado. Mrs. Davis without dispute paid the customary railroad fare and became a passenger. She thus alleges the manner of her injury: "And when said passenger train reached the defendant's passenger station in Alvarado, Johnson county, Tex., and had stopped at said station for the purpose of allowing passengers to disembark from said train, and from the coach in which she was riding, the plaintiff in the exercise of due care arose from her seat in said coach and passed out of the usual and regular door to said coach onto the platform thereof, and while she was attempting to pass down the steps of said coach from the platform, the lower and back portion of her dress and skirts caught upon one or more nails, screws, bolts, or other projection negligently allowed and permitted by the defendant to protrude above the surface of said platform, or to be attached to said coach, and the back part of her dress and skirts being thus caught and fastened by said projection, nails, screws, or bolts, caused the front and lower part of her dress and skirts to pull and jerk her feet from under her, and caused her to fall and to be thrown down said steps from near the top thereof to the lower part of said steps, and the stool placed beneath the lower step and on the ground, and as a direct and proximate result thereof severely and permanently injured her." And thus charges the issue of negligence upon which the case was submitted: "That the defendant was guilty of negligence in allowing and permitting said nails, screws, bolts, or other projections to thus stand up and protrude above the surface of said platform or other part of said coach near the door and platform of said coach, and was guilty of negligence in permitting the same to remain in such condition."

Mrs. Davis testified that when the station of Alvarado was called she got up and started out, and got to the edge of the platform to make her first step, when her dress caught behind on something and jerked her feet from under her and threw her forward to the ground, from which she suffered injuries as related in her testimony. She said: "I do not know what my dress caught on; it caught on the platform somewhere. The skirt just jerked me and jerked my feet out from under me." She further testified that the obstruction tore her dress, which was exhibited before the jury, and which was thus described by her: "No one has worn this dress since that night. Prior to the time I fell from the train there was no holes in this dress. It is torn now crossways at the bottom of the placket and towards the left side. This tear is about eight inches to the left side of the placket; the tear extending from the bottom of the placket to the left. The hole at the bottom of the skirt is just over the hem and is about six inches in length and extends to the hem. Then it is torn slightly at the left side and not quite so much to the right. It is a hole your fist could slip through easily."

Other than the evidence of appellee quoted, there is none that corroborates her theory of the fall, save the testimony of Silas Bankston, who testified: That he was present and within some eight or ten feet of Mrs. Davis when she fell. That "when I first saw Mrs. Davis she was standing out on the platform between the coaches and started down; she took one step and started to take another one and fell. Her dress was pulled behind, and she fell. * * * Her dress swung right backwards from where she was getting off. I just...