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

• Decision Date: 06 November 1909
• Citation: 122 S.W. 574
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DUNBAR.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

122 S.W. 574

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

Court of Civil Appeals of Texas.

November 6, 1909.

Rehearing Denied November 27, 1909.

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

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

See, also, 108 S. W. 500.

Coke, Miller & Coke and Templeton, Craddock, Crosby & Dinsmore, for appellant. Pienon & Starnes and S. W. Tenley, for appellee.

BOOKHOUT, J.

This was an action for damages for personal injuries alleged to have been sustained by the appellee in alighting from one of the passenger trains of the appellant at Greenville, on the 14th day of November, 1905. It was alleged: That, when said train arrived at the station of Greenville, it was dark; that said train was backed up to the defendant's station on the second track from defendant's passenger station; that the passenger coach in which plaintiff was riding was backed some distance up said track to and near its said station house; that defendant and its agents had negligently failed to provide a platform or other safe means by which its passengers could alight in safety from its trains; that the defendant had negligently and carelessly provided a brick pavement to be used by its passengers in alighting from its passenger trains, and the said brick pavement was negligently constructed and was rough and uneven, in this, that the brick was not placed on a level, some projecting above, and others below one another, making it rough and uneven; that the said pavement had not been flushed with cement mortar so as to fill up the cracks and crevices between the bricks, some places being lower than others, and would hold water, and in the course and use of time had become in such condition as above described; that the defendant and its agents had negligently and carelessly provided a small box or footstool, which was badly worn and wholly unfit and unsafe for the purpose for which it was used, which it placed on said rough and uneven pavement for plaintiff and other passengers to use and step upon when alighting from its trains; that said box was too small to be safe for the purpose for which it was used; that the plaintiff, while exercising due care for his own safety, stepped from the bottom step of said car onto the box or footstool placed there by defendant, its agents and servants; and that by reason of the defective box and rough and uneven pavement the box or footstool slipped and turned over, causing him to fall backward with great force and violence against the steps and railings of the said car and into the said box, causing the injuries alleged.

Defendant answered by a general demurrer, a number of special exceptions not necessary to be here noted, a general denial, and a special plea of contributory negligence, to the effect that, if the plaintiff sustained any injuries at all, they were proximately caused and contributed to by his own negligence and want of ordinary care, that he was negligent in the manner in which he stepped from the platform of the coach, or in the manner in which he stepped upon the footstool, or in placing his foot on the said footstool or near the edge or the end thereof or that he failed to look or heed how or where he was stepping upon the footstool, knowing all the time that the footstool was being used as a step box between the coach and the pavement upon which it was placed. There was also a plea of assumed risk. A trial before the court with the aid of a jury October 8, 1908, resulted in a verdict in favor of the appellee for $10,000, upon which judgment was duly entered. Appellant's motion for a new trial having been overruled, it duly perfected its appeal to this court.

Conclusions of Fact.

The appellee, W. O. Dunbar, while a passenger on the appellant's railroad, was injured in alighting from one of its cars at Greenville, Tex., on or about the 14th day of November, 1905, by the upsetting of the step box or footstool furnished by appellant to assist its passengers in alighting from its cars at Greenville. The appellant was guilty of negligence in failing to provide a platform at Greenville upon which its passengers could alight and in providing a footstool or step box which was defective and unsafe, and in furnishing a pavement, upon which its passengers were to alight, which was rough and uneven, and plaintiff's injuries were the direct and proximate result of appellant's negligence in some one or all of these respects, and by reason of said negligence he sustained injury and was damaged in the amount of the verdict and judgment.

The appellee was not guilty of negligence, and he did not assume the risk.

Conclusions of Law.

The first assignment of error challenges the correctness of the first clause of the court's charge, as follows: "That the defendant railroad company was not an insurer of the safety of the plaintiff on the occasion complained of by him; but it was required to exercise such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances in providing the safest appliances that had been known and tested, to enable him to alight, and a failure to exercise such care is negligence." The propositions presented are: (1) That this charge is erroneous, in that it imposes upon the defendant with respect to the means and appliances provided for the use of passengers in alighting from its trains a higher degree of care than is required of it by law. The defendant was required to exercise ordinary and reasonable care only in providing such means and appliances, and not the "highest degree of care," as defined in the charge. And (2) that the charge in requiring of defendant such a high degree of foresight as to possible dangers to the plaintiff in alighting from the train and the like degree of prudence in guarding against such possible dangers to him in so alighting is erroneous and more onerous than is imposed by the law, because the defendant was required to do no more than provide against such dangers as could reasonably have been foreseen or anticipated by the use of that high degree of...