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

• Decision Date: 23 October 1913
• Citation: 160 S.W. 300
• Parties: HOUSTON & T. C. R. CO. v. LOOFS.
• Court: Texas Court of Appeals

160 S.W. 300

HOUSTON & T. C. R. CO. v. LOOFS.

Court of Civil Appeals of Texas. El Paso.

October 23, 1913.

Rehearing Denied November 13, 1913.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by C. J. Loofs against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lane, Wolters & Storey, Baker, Botts, Parker & Garwood, and Wm. A. Vinson, all of Houston, for appellant. Guynes & Colgin, of Houston, for appellee.

HARPER, C. J.

This was a suit for damages for personal injuries suffered by plaintiff's wife, Emma Loofs, alleged to have been sustained while alighting from a train of appellant at the town of Fairbanks, Harris county, on January 27, 1911.

Appellee's wife was a passenger on one of appellant's trains from Houston, Tex., to Fairbanks, Tex., and alleges that she was injured in alighting from the train at Fairbanks. The grounds alleged in the petition were: "That defendant, its servants, agents, and employés in charge of the train and passengers, * * * carelessly and negligently failed to well and safely discharge her at Fairbanks in that they failed to furnish her anything on which to step from the steps of the said car in leaving the same, and so failed to render her the assistance in leaving said car that the circumstances required, and so failed to stop the train at the place in Fairbanks arranged by the defendant for discharging its passengers, in consequence of which she alighted and was injured." Defendant answered by general denial and assumed risk.

The appellant's first and only assignment of error is predicated upon the following charge of the court:

"The court erred in the fifth paragraph of its charge to the jury which reads as follows: `Guided by these instructions, if you believe that the plaintiff was a passenger on defendant's train on the date alleged, and that when she reached the station of Fairbanks she attempted to alight from the train, and that the agent or servant of the defendant, whose duty it was to look out for her safety in alighting, failed to use that degree of care, prudence, and precaution for her safety which you are charged devolved by law upon him, in paragraph 3, and that by reason of such failure to exercise that degree of care, either in the matter of providing appliances for the plaintiff to step on, or in the matter of helping her to descend, or in permitting or inducing her to descend at an unsafe and dangerous place, if such you find he did, and that either or both or all of such acts of omission or commission on his part, if such you find there was, was the proximate cause of the plaintiff's injuries, if you find she was injured, then you will find your verdict for plaintiff, unless you find for defendant under instructions hereinafter given you'—as is shown in the second paragraph of defendant's motion for a new trial."

Under its three propositions appellant charges error: First, that the charge is erroneous in that it instructs the jury that the defendant would be guilty of negligence, as a matter of law, if it failed to exercise the high degree of care, prudence, and precaution required by law of carriers of passengers, either in the matter of providing appliances for her to step on,...