El Paso Electric Co. v. Barker, 2289-7439.

• Decision Date: 06 March 1940
• Docket Number: No. 2289-7439.,2289-7439.
• Citation: 137 S.W.2d 17
• Parties: EL PASO ELECTRIC CO. v. BARKER.
• Court: Texas Supreme Court

Page 17

137 S.W.2d 17

EL PASO ELECTRIC CO. v. BARKER.

No. 2289-7439.

Commission of Appeals of Texas, Section A.

March 6, 1940.

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

Action by Clara Barker against the El Paso Electric Company for injuries sustained while riding as a passenger in a bus operated by defendant. To review a judgment of the Court of Civil Appeals, 116 S.W.2d 433, which affirmed a judgment for the plaintiff, defendant brings error.

Reversed and remanded.

Brown & Brooke, of El Paso, for plaintiff in error.

Wilchar & Wilchar, of El Paso, for defendant in error.

GERMAN, Commissioner.

This suit was instituted by the defendant in error, Clara Barker, against the El Paso Electric Company, to recover damages for personal injuries received by her while riding as a passenger in one of the motor buses operated by the company in transporting passengers in the City of El Paso. The case was tried before a jury on special issues, resulting in a judgment for Mrs. Barker for damages in the sum of $5,000. The company appealed and the Court of Civil Appeals affirmed the trial court's judgment. 116 S.W.2d 433. The company has been granted the writ of error. The parties will be designated as in the trial court.

It appears in testimony that plaintiff got aboard the bus in question and sat down on a seat provided for passengers. This seat was in the front end of the bus, on the right hand side of the aisle. She occupied the portion of the seat next to the aisle. Another passenger was occupying the other portion. The seat had no side arm at the end next to the aisle. As the bus was turning a corner to the right at a street intersection, plaintiff, who was a woman of short stature, slipped off the seat into the aisle and was injured.

Two grounds of negligence were submitted to the jury:

1. That in making a turn at the corner of certain streets in the City of El Paso the bus was driven at a fast, negligent and excessive rate of speed. In answer to special issue No. 2 the jury found that the bus was not being driven at an excessive rate of speed under the circumstances. This ground therefore has gone out of the case.

2. The other ground which was submitted to the jury was set out in plaintiff's petition in this language: "That defendant was negligent in failing to provide its passengers with safe seats in which to ride, and especially a passenger of plaintiff's size, she being a woman of small stature, in that there was no guard rail in front, and in that the defendant did not have an arm on the outside of said seat that would prevent a passenger of plaintiff's size from being thrown in the aisle of said bus, in the event of its swerving suddenly to the right without warning, as was done by the defendant."

In connection with this ground of negligence the court submitted the following issues:

"Do you find from a preponderance of the evidence that the seat in defendant's bus occupied by plaintiff, was without a side arm on the outside of said seat, to prevent a passenger being thrown therefrom?" To this the jury answered "Yes."

"Do you find from a preponderance of the evidence that...