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

• Decision Date: 29 January 1908
• Citation: 108 S.W. 500
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DUNBAR.
• Court: Texas Court of Appeals

108 S.W. 500

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

Court of Civil Appeals of Texas.

January 29, 1908.

Rehearing Denied March 11, 1908.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

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

T. S. Miller and Perkins & Craddock, for appellant. Pierson & Starnes and Stinson & Tinley, for appellee.

FISHER, C. J.

Appellee was a passenger on one of appellant's trains, which arrived at Greenville, his point of destination, about dark. In attempting to alight the stool upon which he stepped turned over and threw him down, and as a result he sustained injuries for which he brings this suit. The issues of negligence alleged and submitted by the trial court are whether the pavement upon which the stool or box was placed was uneven, and whether the box was unfit and unsafe for the purpose for which it was used, and that by reason of either of these facts the box or stool was caused to turn or tilt over, thereby causing the plaintiff to fall. Plaintiff recovered judgment for $5,000.

There is some question raised as to whether the issues of negligence submitted were pleaded. While plaintiff's petition is somewhat indefinite, and possibly will be made more certain upon another trial, we are of the opinion that it is not subject to the objections urged.

There are assignments of errors which question the charge of the court in submitting the degree of care that must be exercised by the railway company towards its passengers. The charge upon this subject practically follows Railway v. Halloren, 53 Tex. 52, 37 Am. Rep. 744; Railroad v. Shields, 9 Tex. Civ. App. 652, 28 S. W. 710; Railway v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829. And there are also some assignments which complain of the charge of the court to the effect that the railway company was charged with the duty of exercising a high degree of care in furnishing the safest appliances for use by its passengers in alighting. This charge is practically in keeping with the rule announced in Railway v. Wortham, 73 Tex. 26, 10 S. W. 741, 3 L. R. A. 368; Railway v. Frey, 25 Tex. Civ. App. 386, 61 S. W. 442.

What we have just said, in effect, disposes of appellant's eighth assignment of error. If the railway company was charged with a high degree of care to furnish the safest appliance, it would have been improper for the court to have given a charge, as requested, that the railway company was only charged with the duty of furnishing a reasonably safe appliance.

There was no error in the trial court's permitting counsel to read the case of Railway v. Wortham, as reported in 73 Tex. 26, 10 S. W. 741, 3 L. R. A. 368. A party, in presenting questions of law to the court, has the right to discuss and read from authorities, and the mere fact that the jury may happen to be present at that time would be no ground for objection, especially in view of the fact that there was no request that the jury be retired during the progress of the legal argument. It is not charged that counsel for plaintiff read this authority to the jury, but it was read to the court in the hearing of the jury.

The evidence of the witness Hall, as complained of in the tenth and eleventh assignments of error, was admissible. It had a tendency to show that the box or stool upon which passengers stepped and alighted was improperly constructed, and the frequency with which such stools turned and caused passengers to fall would be evidence of notice of such defective condition to the servants of the railway company.

There was no error in the court's refusing to admit the testimony of the witnesses Hardin, McKaim, and Gotcher, as set out under the thirteenth assignment of error. The test made by these witnesses as to the conditions actually...