Pullman Co. v. Berkman, 2577.

• Decision Date: 04 May 1934
• Docket Number: No. 2577.,2577.
• Citation: 70 S.W.2d 839
• Parties: PULLMAN CO. v. BERKMAN.
• Court: Texas Court of Appeals

Page 839

70 S.W.2d 839

PULLMAN CO. v. BERKMAN.

No. 2577.

Court of Civil Appeals of Texas. Beaumont.

May 4, 1934.

Rehearing Denied May 9, 1934.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by D. G. Berkman against the Pullman Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Andrews, Streetman, Logue & Mobley, of Houston, and W. G. Reeves, of Beaumont, for appellant.

W. R. Blain and D. E. O'Fiel, both of Beaumont, for appellee.

WALKER, Chief Justice.

On or about April 20, 1932, appellee, D. G. Berkman, an old and infirm man ninety-three years old, purchased a ticket from appellant, the Pullman Company, entitling him to transportation from Seattle, Wash., to Beaumont, Tex. About 1:30 a. m. of the day following the purchase, while appellant's passenger, appellee fell through an open door in appellant's pullman train and suffered the injuries sued for herein, for which the jury allowed him damages in the sum of $1,400. The appeal has been duly prosecuted from the judgment in appellee's favor for that sum.

Appellee made the following general allegations of negligence against appellant: That his damages and injuries "were caused by reason of the fact that the said defendant, its agents and employees did not exercise that degree of care commensurate with the responsibility which it had thus voluntarily assumed, and taken the plaintiff as a passenger with his physical infirmities as they existed and appeared at the time, and did not bestow such attention and care upon the plaintiff under the circumstances as would reasonably insure the safety of the said plaintiff, in view of his said physical condition." The general allegations of negligence were explained, limited, and qualified by the plea of the following particular acts of negligence, to wit, that appellant, its agents, and employees were guilty of negligence (1) in failing to be at their post of duty so as to attend to the wants of plaintiff; (2) in failing to cause their said car to be properly and sufficiently lighted during the nighttime; and (3) in permitting the doors and apertures of said car to remain open while in motion. In Debes v. Greenstone, 247 S. W. 289, 290, this court said:

"If the petition makes a general allegation of negligence — which, in our judgment, it does not do — such allegation is controlled and limited by the specific allegations, and appellee was not entitled to have submitted to the jury any issues except those predicated on the specific allegations of his petition."

See, also, City of Fort Worth v. Ware (Tex. Civ. App.) 1 S.W.(2d) 464, and the many authorities cited therein. Under this proposition of law it was reversible error over appellant's objection to send appellee's cause of action to the jury on the...