Houston & T. C. R. Co. v. Dotson

• Decision Date: 23 December 1896
• Citation: 38 S.W. 642
• Parties: HOUSTON & T. C. R. CO. v. DOTSON et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

38 S.W. 642

HOUSTON & T. C. R. CO. v. DOTSON et ux.¹

Court of Civil Appeals of Texas.

December 23, 1896.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by William Dotson and wife against the Houston & Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett and Frank Andrews, for appellant.

COLLARD, J.

This suit was brought by appellees, William Dotson and his wife, Texana Dotson, against the appellant railroad company, alleging that Texana Dotson was a passenger on defendant's train from Austin to Manor; that the train arrived at Manor and stopped, after warning by employés in charge of the train for passengers to alight there; that, after the train stopped, she started to alight at the depot, and was about on the last or lower step, and just in the act of stepping off on the ground, exercising due care and caution, when, by the negligence of the employés of defendant operating the train, it was suddenly and without warning violently jerked, which threw her to the ground, and upon the ties of the railroad, without fault of plaintiff, and which bruised her chest, arms, and breast, and seriously injured her internally, caused her to become very sick, and to cough up and spit blood, and to suffer great pain and distress, physically and mentally; that she was seriously and permanently injured, and rendered unable to perform any labor of any kind; that, before receiving such injuries, she was never weak or sickly,—was a skillful cook and house woman, and earned as much as $25 per month, and had reasonable expectation of continuing to be able to earn that amount per month, and would have done so for probably as long as 30 years but for such injuries; that her life expectancy is 30 years; that she has been suffering pain and sickness ever since said injury, and will continue to suffer as long as she lives; that by reason of the injuries she has been compelled to incur medical bills and attention to the amount of $100, and has been damaged in the amount of $10,000. The defendant demurred to the petition, and pleaded the general issue; that, if plaintiff Texana Dotson was injured at the time and place as alleged, it was by her own negligence; that she negligently and imprudently alighted from the train; that the train came to a full stop, and afforded her ample opportunity to safely disembark from the train, and whatever injury she received resulted from her own negligence; and, further, that she did not wait until the train stopped, but imprudently and negligently attempted to disembark from the train before it came to a full stop, and her injuries, if any, were caused by her own negligence, which proximately caused the same. It is also alleged that she knew the conditions, dangers, and risks which existed and were incident to her disembarking from the train at the time and in the manner she attempted it, and assumed the risk of so disembarking, and therefore cannot recover for any injuries resulting from the risks so assumed. There were verdict and judgment for plaintiffs for $1,250, from which this appeal is taken.

Conclusions of Fact.

Giving to the verdict the effect of solving in favor of plaintiffs disputed facts and conflicting testimony necessary to a recovery by plaintiffs, we find the facts as follows: The plaintiff Texana Dotson, who was 34 years old, was a passenger on defendant's train from Austin to Manor, having paid her fare, as alleged in the petition. When the train arrived at Manor, one of the trainmen announced the station,—"Manor." The train stopped. The plaintiff Texana Dotson started to get off the train. A lady and gentleman preceded her, and when she got to the bottom step, and was getting off, the train was suddenly jerked a short distance, which threw her off to the ground, between the car and the platform, her feet towards the rails and head towards the platform,—as one of the witnesses expresses it, "kind of cata-wompus." She fell on some hard substance, injuring her breast and arms. When Manor was called out, she took up a little basket she had with her, and went forward to the car platform, and proceeded to alight as stated. She was using due care, and was injured by the negligence of defendant's operatives, in charge of the train, in causing it to start with a sudden jerk, without fault on her part, injuring her as alleged. Plaintiff's injuries were serious. She was sick from them for some time afterwards, and had not recovered at the time of the trial. She spat blood just after the injury, and some days afterwards at another time. She has not been able to do hard work as before. Before her injuries she cooked and washed and assisted her husband on the farm, hoeing and picking cotton. She can still cook and wash a little, but not as before, and cannot work on the farm. She is more emaciated than before, and cannot do the work she had done before.

Opinion.

Most of the errors assigned arise upon charges given and refused by the court, and therefore we think it best to copy all the charge given by the court. It is as follows:

"The plaintiffs, William Dotson and his wife, Texana Dotson, sue the defendant railroad company for damages because of personal injuries alleged to have been received by the plaintiff Texana Dotson, without negligence on her part, while a passenger on defendant's passenger train on October 21, 1894, alleged to have been caused by the negligence of defendant's employés, who were operating said train, in suddenly and negligently moving the train, without warning to said Texana Dotson, while she was attempting to alight from said train at Manor station, where said train had stopped, after warning had been given to passengers on said train to alight at said station, whereby she was caused to fall, with great force, from the steps of the car, onto the ground and ties of said railroad, greatly bruising her chest, arms, and breast, and caused her to become very sick, and to cough up and spit blood, and to suffer great pain and distress, physically and mentally. Plaintiffs allege that said Texana Dotson was thereby seriously and permanently injured, and rendered unable to perform any labor of any kind, to the damage of plaintiffs in the sum of ten thousand dollars, including damages in the sum of one hundred dollars for expenses of medical treatment. The defendant denies all the allegations of plaintiffs' petition, and pleads specially that, if the plaintiff Texana Dotson was ever injured at the time and place alleged, she was injured by, through, and on account of her own negligence, carelessness, and imprudence, in that at the time said train was pulling into said station the said Texana Dotson, being a passenger on said train, did not wait for said train to come to a full stop, as it did do at said station, and as she knew it would do, but negligently, carelessly, and imprudently attempted to...