Paris & G. N. R. Co. v. Atkins

• Decision Date: 12 October 1921
• Docket Number: (No. 3037.)
• Citation: 234 S.W. 66
• Parties: PARIS & G. N. R. CO. v. ATKINS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 66

234 S.W. 66

PARIS & G. N. R. CO. v. ATKINS.^*

(No. 3037.)

Supreme Court of Texas.

October 12, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by James W. Atkins against the Paris & Great Northern Railroad Company. Judgment for plaintiff, affirmed by Court of Civil Appeals (185 S. W. 306), and defendant brings error. Affirmed.

Andrews, Streetman, Burns & Logue, of Houston, and Wright & Patrick, of Paris, for plaintiff in error.

Park, Moore & Hardison, of Paris, for defendant in error.

PIERSON, J.

We take the following from the opinion of the Court of Civil Appeals (185 S. W. 306) for a brief and substantial statement of the case:

"This appeal is from a judgment for $2,000 in favor of the appellee for damages resulting from personal injuries. The evidence shows that in January, 1914, the appellee was a passenger riding in the caboose on one of the appellant's freight trains going to Paris, Tex., from some point in Oklahoma. When the train reached Arthur City, Tex., the engine and one or more of the cars were detached for the purpose of doing some local switching. While the caboose was standing on the main line, the engine and other cars were backed against it with such violence that the appellee was thrown against a desk and injured in the manner complained of.

"The court gave the following as a part of his general charge:

"`(2) It is the duty of a railroad company as a carrier of passengers to exercise a very high degree of care, or that degree of care which a very careful, cautious and prudent person would exercise under the same or similar circumstances, in the handling and operating of its trains to avoid injury to its passengers.'

"`(4) A passenger on a freight train assumes the risk of such dangers as may arise from the ordinary and careful handling and operation of the train, but does not assume the risk and dangers arising from a negligent handling and operation of the train.'

"`(6) Now, if you believe from the evidence that on or about the 22d day of January, 1914, after defendant's train had arrived at Arthur City, and the engine had been disconnected from said train, leaving the train, including the caboose in which plaintiff was riding, standing, and after doing some switching the employees, in charge of said engine and the cars they were engaged in switching and moving about the yards, ran said engine back into and against the train of which the caboose in which plaintiff was riding was a part, with such force and violence as to cause the plaintiff to be thrown from his seat and strike against the edge or corner of the desk inside the caboose, and that the plaintiff was thereby injured as alleged by him in his petition, and caused to suffer the physical pain and mental anguish and the other injurious consequences alleged in his petition, or any of them, and that the action of defendant's employees in so backing into said train and causing the said collision, if they did, was negligence, as that term is defined in the third paragraph of this charge, and that such negligence, if any, was the proximate cause of the accident and injuries to the plaintiff, then you will find for the plaintiff, unless you find for the defendant under other instructions hereinafter given you.'

"`(8) If you believe from the evidence that, at the time the plaintiff alleges he was injured, the defendant's employees were handling the engine and the cars attached thereto in a careful and in the usual and ordinary manner, and that in coupling onto said train there was only the usual and customary jar necessary to the performance of the work in a careful and prudent manner, you will find for the defendant.'

"To the first paragraph quoted above, numbered 2 in the court's charge, it is objected that it did not advise the jury that the degree of care to be exercised in the handling of mixed or freight trains must be such a degree of care as would be commonly exercised in the handling and management of such a conveyance, and does not make the court's meaning clear to the jury, or distinguish between the degree of care for freight trains and other trains.

"To the fourth paragraph, second in the above quotation, it is objected that the charge did not advise the jury that a passenger on a mixed train assumes the increased danger from the difference in the character of conveyance, and from the ordinary coupling, jerking, or jolting incident to the handling of the same."

The writ of error in this case was granted because of a conflict between the opinion in this case and the opinion of the Court of Civil Appeals for the Fifth Supreme Judicial District in the case of Missouri, Kansas & Texas Railway Co. of Texas v. Cobb, 60 Tex. Civ. App. 562, 128 S. W. 910.

The burden of plaintiff in error's complaint is that in his charge the trial judge did not draw a distinction between the care required of it in operating and managing a freight train and a passenger train, insisting that a...