Rapid Transit Ry. Co. v. Strong

• Decision Date: 08 February 1908
• Citation: 108 S.W. 394
• Parties: RAPID TRANSIT RY. CO. v. STRONG.
• Court: Texas Court of Appeals

108 S.W. 394

RAPID TRANSIT RY. CO. v. STRONG.

Court of Civil Appeals of Texas.

February 8, 1908.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by Frances Strong against the Rapid Transit Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This suit was instituted by appellee in the district court of Dallas county, on October 28, 1905, for damages on account of personal injuries alleged to have been sustained by her on the 6th day of September, 1905, while attempting to alight from one of the defendant's cars at a point on Commerce street near the public library. After alleging the residence of the parties, the incorporation of defendant, and that it owned and operated a street railway, and that plaintiff was a passenger upon one of its cars, and had paid her fare, the plaintiff alleged that she boarded one of the defendant's cars on Commerce street, at or near the Santa Fé Depot, for the purpose of going to Carnegie Library, which is located upon Commerce street in said city, at the intersection of said street and Harwood street, and while on said car told the conductor in charge thereof that she wished to get off at said library; that when the car reached a point on Commerce street directly opposite the entrance to said library where the switch is located for transferring cars from Commerce to Harwood street the said car on which the plaintiff was being transported was brought to a full stop, and the plaintiff, who was seated near the middle of the car, rose and walked from the place at which she was seated and stepped down upon the footboard of the car; and that while in the act of stepping from said car, and while exercising the greatest care, the car was suddenly, upon a signal from the conductor, started with a violent jerk, which threw the plaintiff prostrate upon the street, inflicting upon her the serious and permanent external and internal injuries hereinafter described. The plaintiff says that the defendant was guilty through the acts of its conductor in charge of said car, and its other agents and servants, of the grossest negligence in failing, before giving the signal for starting the car, to see that none of the passengers on the car were in the act of getting off; that the plaintiff immediately, upon the stopping of the car arose for the purpose of getting off, and walked, in full view of the passengers upon said car, to the footboard and stepped down upon the same in such a way as to have been easily seen by the conductor and the defendant's other agents and servants, if they had been on the lookout required of them by the rules of the company; that under said rules it is the duty of the conductor before starting the car, after it had been stopped at any place or for any purpose, to see that no one is getting off of the car, before giving the signal to the motorman to start; that at the time of the injuries hereinafter complained of, and before the car had come to a stop, the conductor, who, unknown to the plaintiff, had taken his place on the front platform of the car with the motorman, gave the signal to start without even looking back to see the position of the passengers and whether or not any one was leaving the car, and the motorman, receiving the signal, started the said car with such force as to turn the plaintiff entirely around in her efforts to hold onto the car before she was violently thrown to the street and injured as described. The defendant answered by general demurrer, special exceptions, general denial, and the following affirmative plea of contributory negligence, viz.: "Answering further, said defendant says that plaintiff ought not to have and recover in this case, because it says that if plaintiff was injured, which it does not admit, but denies, such injuries were proximately caused by her own want of care and contributory negligence, in that she attempted to get off of one of defendant's cars after the same had stopped at the intersection of Commerce and Harwood streets for the purpose of turning the switch at said point, and not for the purpose of allowing passengers to alight therefrom, and in not giving the conductor and employés in charge of said car notice that she desired to get off of said car at said point, and in getting off of said car after it had started and while it was in motion, and that her alleged injuries, if any, were proximately caused by her own want of care and negligence in so attempting to get off of said moving car in the manner and at the time, place, and under the circumstances which she did get off of said car." The case was tried, and resulted in a verdict in favor of plaintiff, on December 6, 1906, in the sum of $15,000. Judgment followed on the verdict, and upon its motion for new trial being overruled defendant prosecuted an appeal to this court.

Baker, Botts, Parker & Garwood, E. B. Perkins, D. Upthegrove, Walter H. Walne, and Finley, Knight & Harris, for appellant. Gano, Gano & Gano, for appellee.

BOOKHOUT, J. (after stating the facts as above).

The first assignment assails as error the paragraph of the court's charge reading: "As to what is meant by negligence in the sense in which that word is used above, you are instructed as follows: If the said conductor failed to exercise such care as a very cautious, prudent, and competent person would have exercised under like circumstances to see that no one was attempting to alight from said car when it was started, and to avoid injuring any passenger by the starting of said car, such failure, if any, on the part of said conductor to exercise such care, would be negligence. If the plaintiff, in attempting to alight from said car, failed to exercise such care for her own safety as a person of ordinary prudence would have exercised under like circumstances, such failure, if any, to exercise such care, would constitute negligence on the part of the plaintiff." It is contended that this charge is on the weight of evidence in telling the jury, in effect, that it was the duty of the conductor to see that no one was attempting to alight from the car when it was started. It is disclosed by the evidence that the plaintiff did not notify the conductor that she wished to alight from the car at the library, where she did attempt to alight; that the car did not stop at this place for the purpose of allowing passengers to...