El Paso Electric Ry. Co. v. Harry

• Decision Date: 02 November 1904
• Citation: 83 S.W. 735
• Parties: EL PASO ELECTRIC RY. CO. v. HARRY.
• Court: Texas Court of Appeals

Page 735

83 S.W. 735

EL PASO ELECTRIC RY. CO. v. HARRY.

Court of Civil Appeals of Texas.

November 2, 1904.

On Rehearing, December 14, 1904.

Error from District Court, El Paso County; J. M. Goggin, Judge.

Action by Emma Harry against the El Paso Electric Railway Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

Clark, Hawkins & Franklin and Shook & Vander Hoeven, for plaintiff in error. A. H. Goldstein and Jno. L. Dyer, for defendant in error.

NEILL, J.

This is a suit by appellee against appellant to recover damages for personal injuries inflicted upon her by the negligence of the defendant. The defenses pleaded were not guilty and contributory negligence. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $1,200. From the judgment this writ of error is sued out.

While the evidence is conflicting upon the issues of negligence and contributory negligence, it is reasonably sufficient to warrant the jury in finding that on the night of the 2d day of March, 1902, while plaintiff was a passenger on one of defendant's street cars, while nearing the cross-street where she wished to get off, and the name of the street being called by the conductor, she signaled him to stop the car at that street so that she might alight, which signal was answered by his pulling the bell cord and thereby ringing the bell, which notified the motorman to stop the car at that place; that when the bell was thus rung the motorman slackened the speed of the car, and brought it nearly, if not quite, to a stop, when it crossed the street where plaintiff wished to get off; that when the speed slackened plaintiff arose from her seat, and when the car was at a standstill, or nearly so, while she was in the act of stepping on the footboard, with one foot in the body of the car and the other on or nearly reaching the footboard, the motorman negligently turned on the electric current which propelled the car, causing it to start forward with increased speed, which threw or caused plaintiff to fall therefrom upon the ground with great force and violence, thereby breaking her arm and inflicting upon her other painful physical injuries; and that plaintiff was not guilty of any negligence which proximately contributed to her injuries, and that by reason of defendant's negligence she has been damaged in the amount found by the jury.

Conclusions of Law.

1. It is not for an appellate court to weigh testimony, pass upon conflicting evidence. and determine issues of fact. Its province only is to decide whether there is evidence reasonably sufficient to support the findings of the jury. When this is determined in the affirmative, its duty in this regard is at an end, and the verdict must be sustained, even though, if left in the first instance to an appellate tribunal, it might have reached different conclusions of fact from the evidence.

2. The court, in instructing the jury "that it is the duty of the El Paso Electric Railway Company and their servants and employés engaged in the operation of their street cars, to use such high degree of care and foresight in the protection of their passengers from possible dangers, and to exercise such high degree of prudence in guarding against them, as would be used by very cautious and prudent and competent persons under like circumstances; and while street railway companies are not to be regarded as insurers of the safety of their passengers, yet they are required to use the high degree of care stated in this paragraph above for the safety, and a failure on their part to use such care and prudence as above explained to you, is negligence"—simply declared a well-established principle of law governing a common carrier in the discharge of its duty to passengers whom it undertakes to carry for hire, and is directly applicable to this case as it is made by the pleadings and evidence. Knauff v. San Antonio Traction Co. (Tex. Civ. App.) 70 S. W. 1012; I. & G. N. Ry. Co. v. Clark, 81 S. W. 821, 10 Tex. Ct. Rep. 312; M., K. & T. Ry. Co. v. Scarborough (Tex. Civ. App.) 51 S. W. 356; I. & G. N. Ry. Co. v. Welch, 86 Tex. 204, 24 S. W. 390, 40 Am. St. Rep. 829; I. & G. N. Ry. Co. v. Halloren, 53 Tex. 53; Dillingham v. Wood (Tex. Civ. App.) 27 S. W. 1075; Ft. W. & D. C. Ry. v. Rogers (Tex. Civ. App.) 60 S. W. 61; H. & T. C. Ry. Co. v. George (Tex. Civ. App.) 60 S. W. 314; St. L. S. W. Ry. Co. v. Byers (Tex. Civ. App.) 70 S. W. 559. It imposes no greater care, diligence, or foresight than does the law. The clause, "and, while street railway companies are not to be regarded as insurers of the safety of their passengers," as it appears in the paragraph above quoted, is not "meaningless when considered in the light of the language which immediately precedes and immediately follows" it. But, if "meaningless," we cannot see how the defendant was injured by it. What is styled in defendant's brief "Fourth Proposition" under the second assignment of error, is not cognate to the assignment, and states no point that can arise from it, but presents and raises a distinct question arising from the action of the court upon a matter separate and having no connection with the matter complained of in the assignment under consideration. It cannot, therefore, under the rules, be considered.

3. As the charge of the court covered every material issue raised by the pleadings and evidence, the failure in the preliminary part to fully state the issues (if there were such failure, as is contended by defendant) is not a ground for reversal, no special instruction having been requested for the correction of such omission. M., K. & T. Ry. Co. v. Kirkland, 11 Tex. Civ. App. 528, 32 S. W. 588.

4. The remaining assignments of error complain either of the court's general charge, or of its failure to give special charges requested by defendant's counsel. We have considered them all, and believe none is well taken. The charge of the court, when taken as a whole, fully and fairly presents every issue and phase of the case made by the pleadings and evidence, and embraces every correct principle of law applicable to the issues upon which a special charge was asked and refused.

There is no error in the judgment, and it is affirmed.

On Motion for Rehearing.

The principle embraced in the portion of the charge complained of in the second assignment of error is too well established to admit of discussion. The duty of a common carrier to use the high degree of care and foresight stated in the charge has been imposed by the law upon common carriers of passengers ever since the common law undertook to determine and impose upon such a carrier its duty to its passengers. While the opinions of courts do not always express the rule in the same language that is used in the charge, the obvious meaning that is expressed in all of them is the same as is stated in the portion of the charge complained of. When this part of the charge is considered and applied to the facts alleged and proven, it cannot, in view of other parts of the charge, be said to have been calculated in the least to have misled the jury, or have induced them to believe that it was defendant's duty to foresee that plaintiff would purposely step from the car, and that it was the duty of the defendant to prevent her from doing so. This part...