Missouri, K. & T. Ry. Co. of Texas v. Redus

• Decision Date: 13 March 1909
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. REDUS.<SMALL><SUP>†</SUP></SMALL>

118 S.W. 208

MISSOURI, K. & T. RY. CO. OF TEXAS v. REDUS.^†

Court of Civil Appeals of Texas.

March 13, 1909.

On Rehearing, April 10, 1909.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by Dock Redus against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

See 107 S. W. 63.

Coke, Miller & Coke and Jno. T. Craddock, for appellant. Looney & Clark, for appellee.

TALBOT, J.

This is an action brought by the appellee against appellant to recover damages for personal injuries alleged to have been sustained by him at Royse, Tex., while traveling as a passenger on one of appellant's trains from Dallas to Greenville, Tex. The defendant answered by a general demurrer, a general denial, and specially that appellee's injuries were caused and proximately contributed to by appellee's own negligence, in that he negligently alighted from the train at Royse without appellant's knowledge on the side opposite thereof from the depot and platform provided for the use of passengers; that at the time he so alighted from the train he was intoxicated, or partially so, from the voluntary use of intoxicating liquors; that being in such condition caused, or contributed to cause, him to alight from the train at Royse and on the side thereof opposite from the depot platform, and caused, or contributed to cause, him to fall underneath the wheels of the car and receive the injuries of which he complains. The case was tried before the court and jury March 13, 1908, resulting in a verdict and judgment in favor of plaintiff for the sum of $10,000, and the defendant appealed.

The evidence warrants the following conclusions of fact: Appellee was a carpenter and had been at work in Dallas. His home was in Greenville, and about 9 o'clock on the night of June 24, 1905, he purchased a ticket from appellant's agent at Dallas, and took passage on one of its passenger trains for Greenville. Shortly after leaving Dallas, the conductor or auditor on the train took up appellee's ticket and placed in his hat a white slip of paper or pasteboard used to indicate the station to which appellee was destined. The color of the slip of paper or pasteboard selected by the conductor or auditor on the night in question to indicate Greenville as the place of destination of the passenger was green, and by mistake he placed in appellee's hat a white slip, the white slip indicating Royse, a station between Dallas and Greenville, as his destination. After appellee's ticket was taken up he fell asleep, and, when the train reached Royse, one of defendant's employés on the train awakened him, and told him, in effect, that he had reached his destination, and to get off the train. Believing that he had reached Greenville, appellee hurriedly left the car, and, seeing the gates or way open on both sides of the car platform, got off the train on the opposite side from the depot house and platform. Previous to this appellee had made frequent trips from Dallas to Greenville, traveling on defendant's railroad, and was in the habit of getting off the train at Greenville on the side thereof opposite the depot and platform, which was a safe place to alight, and it was the custom for other passengers to do likewise. The depot and platform at Royse are on the same side of the railroad track that the depot and platform are at Greenville. Almost immediately after alighting from the train at Royse, and just as the train was leaving that station, moving slowly, appellee discovered that the place was not Greenville, and then attempted to get back on the train with a grip in his hand, when he stepped upon or caught his foot in a roughly cut or jagged piece of iron lying on the ground near the railroad track, which caused him to stumble and fall, so that his right foot and leg went on the railroad track, and were run over and crushed in such manner as to necessitate the amputation of the leg between the knee joint and hip. Appellant was negligent in permitting the piece of iron upon which the plaintiff stumbled or in which he caught his foot to remain and be upon the ground near its track, in placing in plaintiff's hat a wrong and misleading conductor's check that indicated that plaintiff's destination was Royse, instead of Greenville, and in telling him he had reached his destination and to get off when the train arrived at Royse. The negligence of defendant's servants as indicated was the proximate cause of plaintiff's injuries, and he was not guilty of contributory negligence.

Appellant's assignments of error from the first to the eighth, inclusive, and the eleventh and twelfth, complain of the fifth paragraph of the court's general charge and the refusal of certain special instructions requested by it. The paragraph of the court's charge here objected to is that portion of the charge wherein the jury were instructed that, if they found the facts as therein grouped to exist, to find for the plaintiff, and the several special charges related to the different phases of contributory negligence on the part of the plaintiff as contended for by the defendant. The tenth assignment of error complains of the court's refusal to give a special charge asked by defendant to the effect that defendant had constructed a platform for the use of passengers in getting off of trains at Royse on the south side of its main track, and the evidence was not sufficient to show such use of the premises on the opposite side as required of defendant any duty to keep the same free from obstructions, etc., and the thirteenth, fourteenth, and fifteenth assignments charge that, for the several reasons therein stated, the court erred in overruling defendant's motion for a new trial. These assignments will be overruled. There is enough in the record before us to show, or from which it may be fairly inferred, that the questions raised by said assignments and propositions thereunder were upon pleadings and evidence in all respects substantially the same as the pleadings and evidence upon which the judgment from which the present appeal is prosecuted was rendered, decided adversely to appellant by the Court of Civil Appeals for the Third District on a former appeal of this case. M., K. & T. Ry. Co. v. Redus, 107 S. W. 63. The general rule of stare decisis, which is invoked by appellee in reply to these assignments, is stated by Mr. Wells in his work on Res Adjudicata and Stare Decisis thus: "It is a well-settled principle that questions of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed even if they appear to be erroneous." In the case of Frankland v. Cassady, 62 Tex. 418, after careful consideration and a review of many of the authorities upon the subject, it was held that the rule should be applied when on the second appeal the facts are substantially the same as they were on the first, or rather when they do not materially affect the application...