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

• Decision Date: 09 May 1906
• Citation: 95 S.W. 42
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. PERRY et al.
• Court: Texas Court of Appeals

95 S.W. 42

MISSOURI, K. & T. RY. CO. OF TEXAS v. PERRY et al.

Court of Civil Appeals of Texas.

May 9, 1906.

Rehearing Denied June 20, 1906.

Appeal from Bell County Court; W. R. Butler, Judge.

Action by Turner Perry and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

T. S. Miller and Geo. W. Tyler, for appellant. Pendleton, Ferguson & Durrett, for appellees.

FISHER, C. J.

The assignments of error question the correctness of the findings of fact of the trial court, on the ground that the evidence is not sufficient to show negligence upon the part of the railway company. While the plaintiff was a passenger upon one of appellant's trains, and while it was rapidly moving, he passed from one car to another, the doors of which were open. When upon the platform, the train gave a lurch, and in order to retain his balance, or to prevent himself from falling, the plaintiff placed his hands upon the door facing of the car which he was about to enter, and then the door came to, and caught and mashed his fingers. It was alleged by the plaintiff that the lurch was caused by the negligence of the appellant, and that it was negligent in not providing safe fastenings to retain the door in position when opened. The trial court found substantially as a fact that the lurch was not of a character from which negligence could be presumed, or that the lurch was attributable to any negligence upon the part of the company, but found that the door was open when the plaintiff started to enter, and that the lurch caused the door to swing to and strike his hand, and that the door was fastened when the plaintiff attempted to enter, and that the fastening was defective, which was held to be negligence upon the part of the appellant. There is evidence to the effect that there were two fastenings to the door— one to keep it shut when closed, and the other to retain it in position when fully open —and it also appears that the door will turn easily upon its hinges, and is well balanced. Appellant's car inspectors testified to the fact that the car was comparatively new, and that the door and appliances had been recently inspected, and that they were in good condition; that the back fastening was practically sufficient, and was in good condition and was used for the purpose of keeping the door stationary when open. The condition of the back fastening, as so established by the appellant's...