Lipscomb v. Houston Electric Co.

• Decision Date: 27 March 1941
• Docket Number: No. 11143.,11143.
• Citation: 149 S.W.2d 1042
• Parties: LIPSCOMB et al. v. HOUSTON ELECTRIC CO.
• Court: Texas Court of Appeals

149 S.W.2d 1042

LIPSCOMB et al. v. HOUSTON ELECTRIC CO.

No. 11143.

Court of Civil Appeals of Texas. Galveston.

March 27, 1941.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Julia Lipscomb and husband against the Houston Electric Company for injuries sustained by the named plaintiff when she fell as result of alighting from a street car owned and operated by defendant. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Able & Stokes, Levert J. Able, and Troy T. Stokes, all of Houston, for appellants.

J. C. Hutcheson, III, and Wm. R. Brown, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

MONTEITH, Chief Justice.

This action was originally brought by appellant, Julia Lipscomb, joined pro forma by her husband, Claude Lipscomb, to set aside a release and to recover damages for personal injuries alleged to have been sustained by her as the result of a fall while alighting from a street car owned and operated by appellee, Houston Electric Company. Later, by amended pleading, Claude Lipscomb was made a real party plaintiff to the suit.

The suit arose out of an accident which occurred in the City of Houston in the early morning of January 24, 1934. Appellants alleged that while a passenger on said street car Julia Lipscomb requested the motorman to allow her to alight at the nearest stop to the Farmer's Market; that when he stopped the car and she attempted to alight she stepped from the car into a hole and fell, injuring herself. They alleged that appellee was guilty of negligence in not providing a safe place to disembark from said street car and in stopping it in an unsafe place for Mrs. Lipscomb to alight, and that appellee, through its servants and employees, knew or should have known that such place was unsafe for disembarking and that such negligence proximately caused the accident in question.

They alleged that shortly after said accident, in reliance on the false and fraudulent representations of appellee, its agents and physician, to the effect that Mrs. Lipscomb had recovered from her injuries, they had executed an instrument releasing appellee from all liability growing out of said accident.

Appellee answered by general demurrer, general denial and exceptions and a plea of contributory negligence in general terms. It specially pled the two and four years' statutes of limitation, as a bar to appellant's recovery.

At the close of appellant's evidence, on motion of appellee, the court withdrew the case from the jury and rendered judgment that appellants take nothing by their suit, for the reason that appellants had failed to prove actionable negligence on the part of appellee.

The controlling questions presented herein are: (1) Whether there is any evidence in the record which, when considered by itself, would, if accepted by the jury as true, have raised an issue of fact which would have supported a judgment in favor of appellants; and (2) whether appellants' cause of action growing out of said accident was extinguished by the release executed by appellants.

It is the established law in this state that when a litigant requests the court to peremptorily instruct a verdict in his behalf he admits as true all the evidence supporting the contentions of the adverse party. Lawson v. Hutcherson, Tex.Civ.App., 138 S.W.2d 131; Owen v. Al Parker Securities Co. et al., Tex.Civ. App., 296 S.W. 620, affirmed by Tex.Com. App. in 1 S.W.2d 271.

Further, it is held to be reversible error for the court to direct a verdict where, disregarding all adverse evidence and giving credit to all evidence favorable to plaintiff which might have been drawn from the facts proven, a jury might have found in favor of the plaintiff. Coca Cola Bottling Co. v. Dickson, Tex.Civ. App., 115 S.W.2d 1223; Dendy v. Cockerham et al., Tex.Civ.App., 82 S.W.2d 756.

The law is, however, equally well established in this state that the mere fact of an accident resulting in injury or death does not raise a presumption of negligence on the part of the person causing the injury, and that the plaintiff has the burden of establishing his case and of proving not only the negligence of defendant relied on as a ground of recovery by clear and direct testimony, but he must prove that such negligence was the cause of the injury complained of. It is held that, even if negligence is established, it will not be presumed or inferred that such negligence was the cause of the injury. Kelley et al. v. Burlington-R. I. Ry. Co., Tex.Civ.App., 100 S.W.2d 164, writ refused; Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502; Galveston, H. & S. A. Ry. Co. v. Easton, Tex.Civ.App., 257 S.W. 924; 52 C.J. pp. 705, 706.

In the instant case, Mrs. Lipscomb was the only witness to testify as to how the accident in question took place. She testified as follows:

"Q. Did you proceed to get off? A. Yes, I stepped in a hole and fell.

"Q. Did you step in a hole after you got off the street car? A. Yes, sir.

"Q. You say you fell, tell the jury how you did fall. A. As I alighted from the car I fell on my face and bruised my knee cap. * * *

"Q. You say you fell just as you stepped off the car? A. I stepped in a hole when I got off the car.

"Q. Did you make any steps after you got off the car? A. No,...