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

• Decision Date: 18 January 1919
• Docket Number: (No. 8968.)
• Citation: 210 S.W. 269
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. SCRIPTURE et al.

210 S.W. 269

GULF, C. & S. F. RY. CO. v. SCRIPTURE et al.

(No. 8968.)

Court of Civil Appeals of Texas. Ft. Worth.

January 18, 1919.

On Motion for Rehearing, March 8, 1919.

Appeal from District Court, Denton County; C. F. Spencer, Judge.

Suit by John B. Scripture against the Gulf, Colorado & Santa Fé Railway Company and the Pullman Company, in which the defendant Gulf, Colorado & Santa Fé Railway Company pleaded that, if judgment should be recovered against it, it have judgment over against defendant Pullman Company. Judgment for plaintiff against the Railway Company and for the Pullman Company as to the Railway's plea over, and the defendant Railway Company appeals. Affirmed in part and reversed and remanded in part.

Lee, Lomax & Smith, of Ft. Worth, Terry, Cavin & Mills, of Galveston, and H. R. Wilson, of Denton, for appellant.

Etheredge, McCormick & Bromberg, of Dallas, for appellee Pullman Co.

Owsley & Alcom, of Denton, for appellee Scripture.

BUCK, J.

John B. Scripture sued the appellant Railway Company and the Pullman Company for alleged injuries sustained at Krum, Tex., on the night of April 24, 1916, while plaintiff, a passenger upon the Pullman car, was disembarking. Plaintiff charged negligence on the part of both defendants in failing to give him a reasonable opportunity to alight safely from said car; in failing to have sufficient light on the platform of said car; in failing to stop the train at Krum a sufficient length of time to enable plaintiff to safely disembark; in failing to have sufficient light on the ground or platform upon which plaintiff landed; in failing to assist plaintiff to alight; in failing to place the box upon which plaintiff was to step securely fixed on the ground; in failing to have the ground where the box was placed reasonably level and smooth, so that the box placed thereon would not overturn, etc. Defendant railway company set up various defenses, and further pleaded that if any judgment should be recovered against it that it have judgment over against the Pullman Company.

Before or during the trial plaintiff dismissed his action against the Pullman Company, and judgment was recovered for him against the Railway Company in the sum of $5,000 damages for personal injuries, and $325 for doctor and drug bills, and in favor of the Pullman Company as to the defendant's plea over. The Railway Company has appealed.

The appellant has presented a brief containing 20 assignments of error, some directed to alleged errors affecting issues between it and the plaintiff, and others complaining of alleged errors as to the issues between the defendant and the Pullman Company. As the appellant has devoted most of its brief to the latter group of assignments, we will first consider them.

The defendant Railway Company pleaded that there was a contract existing between it and the Pullman Company by virtue of which the Pullman Company was to provide its own employés and servants for the collection of fares charged for the sleeper, and for the services of receiving and discharging passengers from said cars, and that by the terms of said contract the Pullman Company had agreed to indemnify and save harmless the Railway Company against all liability and claims for injuries to persons arising from the acts or omissions, whether negligent or wrongful or otherwise, of the employés of the Pullman Company in the line of their employment. It further alleged that, if it were true that plaintiff sustained the injuries alleged by him as the result of the failure to afford him a reasonable opportunity to safely alight from said sleeping car and train at Krum, or because of insufficient light on the platform or at the place he attempted to get off the car, or because a sufficient time was not allowed him to alight from the car, etc., said acts of negligence, if any, were the acts of the Pullman Company's employés, and that the Railway Company was entitled to a judgment against the Pullman Company for any recovery had against it. The evidence tends to establish the following state of facts: Plaintiff boarded appellant's train at Ft. Worth on the night of April 24th, for the purpose of going to Krum, having purchased a ticket before boarding the train, and paying the Pullman fare on the train. The train stopped at Krum one minute, as testified to by the railway conductor. When it reached the station, and after it had stopped, the Pullman porter notified the plaintiff, who was in the smoker of the Pullman or in the aisle of the car and walking towards the door opening onto the platform from which he was to alight. Before the plaintiff descended the steps, or as he was doing so, the conductor cried, "All aboard." The railway porter and the brakeman on the ground near the steps of the parlor car answered, "All right here." The train started with a slight jerk as plaintiff's foot reached the last step and as he was preparing to step onto the box which had been placed under and in front of the Pullman car steps. As he stepped onto the box it turned over, and plaintiff fell prone on the ground and on top of the box, with his arm on the rail under the car. The Pullman porter jerked him out from under the car and raised him to a standing position, and then ran to overtake the train, which was moving. The conductor and brakeman of the train did not know that any accident had happened until the train had gotten some distance from Krum. When plaintiff attempted to stand, his leg gave way, and he fell again to the ground. Persons at the station ran to his assistance, placed him on a door, and carried him to a nearby drug store, where he received medical attention.

The evidence was that his injuries were serious, consisting, in part, of a fracture of the patella of his left leg and the bruising and injuring of his left hip and shoulder. Appellant's conductor, Wyman, testified: That he knew at the time, or before the train stopped, that there was a passenger in the Pullman car for Krum; that the train conductor is supposed to stop the train at the station, and if the passenger on the Pullman car has not gotten off when the warning, "All aboard," is given by the conductor, it is the duty of the Pullman employés to notify the train conductor to "Wait a minute." If all the Pullman passengers are off the cars the Pullman porter makes no reply. That on the night in question he did not hear the Pullman porter make any announcement that the passenger had not alighted, or any request to wait. That it was a dark night, and, while he could see the porter standing near the steps of the Pullman car, he did not see the passenger. That the brakeman was between him and the Pullman car, and the latter was there to discharge his duty as a railway brakeman, but that he was not in charge of the Pullman car. That he supposed if the brakeman had noticed that the passenger had not gotten off the train, he would have informed the witness of that fact, and asked him to wait. That when the brakeman and the Pullman porter answered, "All right here," he gave the signal for the train to start.

Section 12 of the contract between the Railway Company and the Pullman Company provides:

"The Pullman Company agrees to indemnify and save harmless the Railway Company against all liabilities and claims for loss or damage to or destruction of property and for injuries to persons or death as follows. * * * All claims and liabilities arising from the acts or omissions whether negligent or wrongful or otherwise, of employés of the Pullman Company in the line of their employment."

The court, in charging upon the issues between the appellant and the Pullman Company, instructed the jury, in effect, that, if they should find that the injuries to plaintiff were caused by the negligent failure of the Pullman employés, and that such negligence was the proximate cause of plaintiff's injuries, the Railway Company would be entitled to judgment over against the Pullman Company for whatever sum they should find against the Railway Company. The Railway Company objected to this paragraph of the charge, on the ground that under it the jury were instructed that before they could find against the Pullman Company, as to appellant's plea over, they were required to find that said porter's acts or omissions, causing or contributing to cause the injuries, constituted negligence, while under the contract between the two companies the Pullman Company would be liable in the way of indemnification to the Railway Company if the plaintiff's injuries were caused by...