Houston E. & W. T. Ry. Co. v. Lynch

• Decision Date: 14 December 1918
• Docket Number: (No. 393.)
• Citation: 208 S.W. 714
• Court: Texas Court of Appeals
• Parties: HOUSTON E. & W. T. RY. CO. v. LYNCH.

208 S.W. 714

HOUSTON E. & W. T. RY. CO. v. LYNCH.

(No. 393.)

Court of Civil Appeals of Texas. Beaumont.

December 14, 1918.

On Motion for Rehearing, February 5, 1919.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Suit by J. S. Lynch against the Houston East & West Texas Railway Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

McMeans, Garrison & Pollard and Stevens & Stevens, all of Houston, for appellant.

Baldwin & Baldwin, of Houston, for appellee.

HIGHTOWER, C. J.

The statement of the nature and result of this suit, as made in appellant's brief, is found to be substantially correct, and is as follows:

J. S. Lynch, appellee, brought this suit against the Houston East & West Texas Railway Company, appellant, to recover damages for personal injuries alleged to have been sustained my him while disembarking from one of defendant's passenger trains at the station of Cleveland, Tex., which he had entered for the purpose of assisting his wife and married daughter, who were taking passage on said train to the city of Houston.

The appellee alleged that on the 3d day of November, 1916, his wife and his married daughter, Mrs. R. B. Baldwin, were going to Houston on a visit, and had with them their suitcases and certain bundles, and needed the assistance of appellee in boarding and securing seats on said train, and that he went with them to defendant's passenger depot at Cleveland for the purpose of assisting them in getting their tickets, carrying their baggage, and assisting them to seats on the train; that said train stopped at the depot in Cleveland for the purpose of letting passengers off and on, and that appellee and his wife and daughter were near the steps of the car when the train stopped, and that appellee then informed the brakeman and other servants of appellant in charge of said train that he himself was not leaving on the train, but was only assisting the two ladies to board the train and procure seats, and that he wanted to get off before the train started; that immediately thereafter appellee entered the car for the purpose of assisting said ladies with their baggage and to procure seats in the car; that said train did not remain the usual and customary length of time at said station, but started before appellee had been allowed a reasonable time to assist said ladies with their baggage into said car and to assist them to seats therein; that appellee thereupon hurriedly set down the grips which he was carrying for his wife and daughter, and immediately went to the front end of the coach which he had entered, for the purpose of alighting therefrom, but was prevented from getting off by the brakeman or porter, who was then assisting another lady passenger up the steps of said coach; that appellee then immediately went to another step across the vestibule between said coaches, and there attempted to alight from said train, believing that he could safely get off, but that he was thrown to the ground by a sudden jerk from the train, falling on his head, neck, and shoulders, and received injuries, which were specifically mentioned in his petition.

Appellee further alleged that it was and had been the custom, well known to and acquiesced in by appellant, its agents, servants, and employés, at the station of Cleveland, to allow male persons to assist lady passengers aboard its passenger trains, and to assist them in finding seats thereon, and to hold said train for such purpose; that on the occasion in question appellant negligently failed and refused to hold the train a reasonable or sufficient length of time to allow appellee to perform such service and to disembark from said train; that appellant's servants negligently started said train without giving appellee reasonable time to disembark after having entered said train for said purpose; that in view of such custom as aforesaid, and under the circumstances mentioned, it was the duty of appellant to hold said train a reasonably sufficient length of time to allow appellee to enter the same and assist his wife and daughter, as aforesaid, and then to alight therefrom before said train should be started; that the act of starting said train before he had time to perform said services and to alight therefrom was negligence upon the part of appellant, and that such negligence caused his injuries.

It was further alleged that in alighting from said train appellee used proper care and diligence, and substantially that appellee was not guilty of any negligence which contributed to his injuries. There were other allegations in the petition describing minutely the character and extent of the injuries sustained by appellee while attempting to alight from said train.

Appellant answered by general denial and by a general plea of contributory negligence on the part of appellee.

The case was tried with a jury, and was submitted upon special issues, in answer to which the jury found:

(a) That the agents and servants of appellant knew, or should have known, of the presence of appellee on said train.

(b) That such servants and agents knew, or should have known, that appellee desired to alight from said train after assisting his wife and daughter thereon.

(c) That the servants of appellant were guilty of negligence in failing to hold said train a reasonable length of time under the circumstances to enable appellee to alight therefrom.

(d) That such negligence was the proximate cause of appellee's injury.

(e) That plaintiff was not guilty of contributory negligence in getting off of said train at the time and under the circumstances he did so.

The jury further found that $1,000 would fairly and justly compensate appellee for the injuries sustained by him.

Upon this verdict judgment was entered in favor of appellee for the sum of $1,000, with interest thereon, and for costs of suit. Appellant's motion for new trial having been overruled, the case was properly brought here by appeal.

By the first assignment of error complaint is made of the action of the trial court in refusing to peremptorily instruct a verdict in favor of appellant. Under this assignment we find three propositions, which we will here state:

(1) Negligence not alleged, though proved, cannot form the basis of a judgment.

(2) Plaintiff, having alleged that the negligent failure of the defendant to hold its train at Cleveland a sufficient length of time to allow him to alight therefrom was the proximate cause of the injuries received by him in attempting to alight, was not entitled to recover upon proof of his being thrown from the train and injured by a jar, jerk, or lurch of the train after it had started and at a time when he was not attempting to alight.

(3) Plaintiff, having alleged that the negligent failure of defendant to hold the train a sufficient length of time to allow him to alight was the proximate cause of his injuries, and having proved that his injuries were proximately caused by a sudden jerk, jar, or lurch of the train, the variance between the allegations and proof is fatal as to his right to recover, and the judgment cannot stand.

From the foregoing statement of the allegations of the appellee's petition it is apparent that the proximate cause of the injuries sustained by him was the starting of the train before appellee had been allowed a reasonably sufficient time to assist his wife and daughter aboard said train and to procure seats for them, and then to alight therefrom.

We concede at the outset the correctness of the first proposition under this assignment, and adhere to the rule, firmly established in this state in cases of this character, that negligence not alleged, though proved, cannot form the basis of a judgment, and what we shall say further in disposing of this assignment will have reference to the second and third propositions above mentioned.

If, as contended by appellant, in effect, the undisputed evidence showed that the starting of the train on the occasion in question was not the proximate cause of appellee's injury, then he was not entitled to a recovery in this case, and the trial court should have given the peremptory instruction requested by appellant. The contention of appellant that there was a variance between appellee's allegations and proof as to the proximate cause of his injuries, as we understand it, is based upon appellee's own testimony alone. Appellant takes the position that appellee's testimony shows clearly that the proximate cause of his injuries was not the negligence of appellant, if any, in causing the train to be started; but that the proximate cause, as made by appellee's testimony, was a sudden jerk, jar, or lurch of the train after the same had been put in motion, and at a time when appellee was not in the attempt to alight from said train. Appellee, among other things, on the trial below testified as follows:

"On the day of the injury, when the train stopped and the passengers alighted, my wife, daughter, and I were standing just a little out of the way of the passengers that came off of the train. We were not more than four feet, I think, from the steps when the train stopped, and, as well as I remember, there were not but three passengers got off, and we loaded on as quick as we could, my wife and daughter did, and when she went I went on behind to carry the grip for her. I didn't lose any time from the time the train stopped until I reached the place where I set the grips down and left the train. I run back. The train was going before I could put the grips down. I did not know about how long the train had been in the habit of stopping there prior to that time; I never paid any attention to it. Frequently, though, it would stay there some little while. * * * I did not lose a bit of time that evening, not until I got that fall. When I entered the train I had just gone back five seats before I set the grip down. My wife and daughter stopped at the fifth seat. I...