El Paso Electric Co. v. Barker

• Decision Date: 07 April 1938
• Docket Number: No. 3662.,3662.
• Citation: 116 S.W.2d 433
• Parties: EL PASO ELECTRIC CO. v. BARKER.
• Court: Texas Court of Appeals

116 S.W.2d 433

EL PASO ELECTRIC CO. v. BARKER.

No. 3662.

Court of Civil Appeals of Texas. El Paso.

April 7, 1938.

Rehearing Denied April 28, 1938.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Clara Barker against the El Paso Electric Company for injuries sustained while riding as a passenger in a bus operated by defendant. From a judgment for plaintiff, defendant appeals.

Affirmed.

Brown & Brooke, of El Paso, for appellant.

Wilchar & Wilchar, of El Paso, for appellee.

WALTHALL, Justice.

Clara Barker, a feme sole (appellee herein), sued El Paso Electric Company, a common carrier, for personal injuries and recovered damages in the sum of $5,000. She alleged that on or about February 21, 1937, she became a passenger on a bus line operated by appellant on the public streets of El Paso in its capacity as a common carrier. She was traveling from her residence to the business portion of the city. She seated herself in the usual and customary way on the left side of the right front seat facing the front. The other portion of said seat was occupied by another passenger, and the place she took was the only available seat in the bus at the time. She alleged that shortly after taking her seat she was, through defendant's negligence, thrown to the floor of the bus and severely and permanently injured. She alleged that defendant's bus operator was negligent in suddenly swerving the bus and turning to the right at the corner of Copia and Pera streets in the city of El Paso at a rate of speed that was greater than was safe for the passengers, considering the condition of the street at the place where the turn was made; said place being partially unpaved and bumpy and rough. She alleged that defendant was further negligent in failing to provide either a guardrail for the seat or something placed in front of it to which plaintiff could have held, and which would have prevented her being thrown to the floor of the bus when it turned suddenly and sharply to the right, and that defendant was negligent in failing to provide safe seats. She alleged that this last negligence applied specially to passengers of her size, she being a woman of small stature, and the defendant having failed to have an arm on the outside of the seat to prevent one of her size from being thrown into the aisle.

In response to special issues the jury found that plaintiff was thrown from her seat by force incident to a turn to the right at the corner of Copia and Pera streets; that making said turn the bus was not operated at an excessive rate of speed; that the seat occupied by plaintiff lacked a side arm on its outside to prevent a passenger from being thrown from the seat; that it was negligence to fail to provide such a side arm, and that this negligence was the proximate cause of the injury suffered by plaintiff; that the injuries were not the result of an unavoidable accident. From a judgment rendered in conformity to said findings, defendant appeals.

The appellant urges six propositions. The first and second propositions may be considered together, since they are to the effect that there was no evidence to warrant a recovery upon the basis of negligence on account of failure to have a side arm on the outside of the seat in order to prevent a passenger from being thrown therefrom. By the second proposition appellant also insists that issue No. 3 as submitted (being the one inquiring as to whether the seat was without a side arm to prevent a passenger from being thrown therefrom) was a comment upon the weight of the evidence and assumed that such a seat would have prevented the plaintiff's fall. It was argued that because the defendant produced evidence that the bus involved was of the standard type and standard construction customarily used by transportation companies and there was no contrary evidence upon this point, and no evidence that side arms were ever placed on seats of motorbusses, there could be no possible question raised as to negligence because of failure to place a side arm. Customary methods or conduct do not furnish a conclusive or controlling test of negligence. Taylor v. White, Tex.Com.App., 212 S.W. 656; O'Connor v. Andrews, 81 Tex. 28, 16 S.W. 628; O'Connor v. Curtis, Tex.Sup., 18 S.W. 953; Texas & P. Ry. Co. v. Hughes, Tex.Civ.App., 192 S.W. 1091, writ refused.

Conformity to conduct or usual methods or customs merely amounts to a circumstance to be considered together with other circumstances of the case in determining whether due care has been exercised. Comanche Duke Oil Co. v. Texas P. Coal & Oil Co., Tex.Com.App., 298 S.W. 554; Texas & P. Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 623, 47 L.Ed. 905. As said in the case last above cited: "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Citing Wabash R. Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605.

In her brief plaintiff quotes and summarizes evidence to the effect that the bus was an "old type bus"; "they had taken off the good busses January 1st and put on the old type busses; instead of letting you lean back the seats tilted you forward; * * * the seat was of leather; it was a slippery seat"; the portion of the street over which the bus was traveling was partially paved; "on the unpaved portion there on Copia Street between Alameda and Pera it was rough going at the time this bus turned to the right, and I (appellee) had no warning; I (appellee) am not quite five feet tall with my shoes on." Another witness (Davis) testified that the street was bumpy and the seat was rather narrow and short for two people to sit on, and when the bus made the turn from Copia to Pera she (appellee) "slid" out; "it was too narrow; she didn't have anything to hold to." The bus operator testified that the street was not paved at the point where the accident occurred, and that it was bumpy at that particular point — bumpier than a paved street. There was a slight dip at the point on Copia street where the bus passed from Copia on and upon Pera, and "if you strike that going fast it has a tendency to throw that part of the bus up to an extent depending on the speed with which you strike it." Another witness (Mary Leasky), testifying for appellant, said of the street at the point where the accident occurred, "it is rough there, and it just knocked or jarred when he turned the corner, and she just slipped off the seat down to the floor. * * * I grabbed at her — tried to grab her when she slipped off, and she tried to grab me." Appellant's brief quotes Lansing Thorne, general superintendent of transportation, as saying that the bus was of standard and customary type or construction in general and customary use by transportation companies over the country, of standard and approved type; that this type had been used by the company since the middle of 1930. "There are some changes in body design and in sonic motors in some busses." It is noticeable that no evidence is quoted to the effect that it is customary and usual to use busses without side arms upon rough and bumpy streets, which was shown to be the character of Pera street at the point where plaintiff received her injuries. This state of the evidence made a question for the jury, and it cannot be said that their finding was unwarranted. The witnesses were in harmony in testifying that the street was rough, and the bus driver's testimony as to the tendency of the dip at the intersection of Copia and Pera to tilt the bus to an extent dependent upon speed has been quoted.

The objection that the charge was upon the weight of the evidence comes too late. No such objection to the charge was made in clear or specific terms when it was submitted to counsel for appellant. None was made unless it be inferred from the following language: "The defendant objects to question No. 3 submitting the issue as to whether the seat was without a side arm on the outside of the seat to prevent a passenger from being thrown therefrom, for the reason that the Court assumes that it is necessary to have a side arm to prevent passengers from being thrown from the seat, when, as a matter of fact, the undisputed evidence shows in this case that this bus was of a standard type, * * * and there is no evidence to the contrary, and there is no evidence that side...