Houston & T. C. R'Y Co. v. Schmidt

• Decision Date: 11 March 1884
• Docket Number: Case No. 1809.
• Citation: 61 Tex. 282
• Court: Texas Supreme Court
• Parties: HOUSTON & T. C. R'Y CO. v. ANTON SCHMIDT.

61 Tex. 282

HOUSTON & T. C. R'Y CO.

v.ANTON SCHMIDT.

Case No. 1809.

Supreme Court of Texas.

Mar. 11, 1884.

ERROR from Harris. Tried below before the Hon. James Masterson.

This case is chiefly remarkable for the singular verdict rendered in view of the evidence.

Appellee sued to recover damages for a personal injury. He alleged that he purchased a ticket at Elgin, a station on appellant's road, to be carried to Paige; that soon afterward, at about 8 o'clock P. M., appellant's train arrived at Elgin and came to a full stop at the proper place for passengers to get off and on; that he attempted to get on one of the passenger coaches, and while he had one foot on the step of the coach, and was in the act of bringing up his other, the train was suddenly and violently backed, causing him to make a misstep and get his left foot and leg caught between two cross-ties in the track, when the train came against him, causing him to bend over while his foot and leg were so engaged, and thereby broke his leg and foot, inflicting upon him a painful and permanent injury. He alleged that the backing of the train was without signal or warning, and was gross carelessness and negligence on the part of appellant's servants in charge.

Defendant below pleaded the general issue. Verdict and judgment in favor of appellee for $500.

The errors assigned were:

I. There is no legal evidence to support the verdict on which the judgment was rendered, and it is contrary to the law and the evidence, in that it does not show that Schmidt was injured in manner as he alleges.

II. The testimony shows that if Schmidt was in fact injured, it was because of his contributory negligence in attempting to get on the car on the opposite side from the passenger platform at which the train was standing, and which had been erected for the convenience and safety of passengers in getting on and off at that point, and if he had been on said platform he could not have been hurt.

Appellee was the only witness for the plaintiff below as to the manner in which his injury occurred. He testified that he was on the freight platform when the train arrived, and that he walked down the steps and was on the ground between the freight platform and the cars when the conductor called ““All aboard.” He then attempted to get on; and while he had one foot on the step of the car and was in the act of bringing up the other, the train was suddenly backed, which caused his left foot to miss the step and go to the ground, where it got between two ties. That the backward movement of the train compelled him to bend backward to prevent the train from running over him, and in this way he was injured in his leg and foot.

This statement accorded with the allegation in his petition in reference to the manner and means in and by which he claims to have been injured. He stated that he was not then drunk, and that it took much to make him so.

W. P. Miles testified that he saw him in the evening of the night he was hurt and about thirty minutes after he was hurt, and he was somewhat intoxicated.

Witness Durfee saw the plaintiff about ten minutes after he was hurt. His actions and smell of his breath showed that he was drunk. He sat up with him, and said the influence of the liquor was not so apparent in the latter as in the fore part of the night.

Witness Gordon testified that Schmidt had been drinking during that day and was drunk and asleep near the office door on the freight platform when the train arrived. He waked him in the presence of James Quinn.

Witness Quinn saw Schmidt drunk and asleep on the platform and saw Gordon wake him, and heard him tell him the train was coming. Schmidt's condition was such that witness did not think he knew anything.

Witness Quinn says he saw Schmidt leave the freight platform; he did not leave it by the steps, but fell off, and when he struck the side-track he fell, and was at no time nearer the train than the place where he fell; witness noticed him particularly, because he feared he would be run over by the train.

Witness Gordon was present from the arrival of the train until its departure; did not see Schmidt leave the freight platform. The first time he saw him after getting off the platform Schmidt was on the ground by the edge of the side-track and in front of the office door. Just before the train left he saw him holding to the freight platform, and the conductor told witness to go to Schmidt and prevent him from making for the train and thereby being run over. Schmidt was at no time nearer the train than when he was standing holding to the freight platform when the train left.

When the train left, Schmidt was standing holding to the freight platform, standing and acting like a drunken man.

Witness Durfee testified that appellee told him, about ten minutes after he was hurt, that as...