Rogers v. Galveston City R. Co.

• Decision Date: 18 March 1890
• Citation: 13 S.W. 540
• Court: Texas Supreme Court
• Parties: ROGERS <I>v.</I> GALVESTON CITY R. CO.

13 S.W. 540

ROGERSv.

GALVESTON CITY R. CO.

Supreme Court of Texas.

March 18, 1890.

Commissioners' decision. Appeal from district court, Galveston county.

S. S. Hansom and F. M. Spencer, for appellant. James B. & Charles J. Stubbs, for appellee.

COLLARD, J.

The platform of the streetcar on which appellant, the plaintiff below, was a driver at the time of the injury becoming worn by the feet of the drivers continually standing thereon, it was repaired by two planks, which were nailed down on the floor. The platform at the front part is five feet across. Its general width is five feet and five inches. One of the planks nailed down in front, near the dash-board, is eleven inches wide and two feet long, and the other plank is nine inches wide and two feet five inches long. They touch each other, and are beveled down at the edges. One of them is not more than a half inch thick, and the other said to be five-eighths of an inch. The thinner one is in the rear. They do not extend all the way across the platform. Plaintiff testified that there was a small space between the boards, but the photograph sent up with the record does not show it. This patch is the defect complained of, which it is alleged caused the injury. The position of the driver was on the front board. Plaintiff said in his testimony: "If I stepped to the front or back of it, either my heel or toe would be the higher, and on account of the long hours it was very tiresome." Plaintiff's testimony gives an account of the occurrence as follows: "As I crossed 27th street I looked right and left, as orders were, and as I always did. I saw no one in sight. I had got about two car-lengths west of the west side of 27th street, when I heard some one call out, `Hey!' I could hear the call very plainly. When I heard that hail, I was standing upon the platform, with my lines in my left hand, and my right hand on the brake, and I immediately reached out my right hand, and grabbed hold of my lines, and stepped over to the left side of the car, and reached out to look back. As I did, the mule gave a jump. Whether he thought I was going to strike him on the fore-feet, as drivers do, I don't know, but he gave a very great jump, just as if he had been struck, and that threw me around. I had a tight line, and before I knew it I was over the car. When he gave that jump my foot slipped on a board that was on the floor of the platform, [the front board.] I could see after I got on the car where my foot slipped. I was standing on that board, and I stepped a little over to the left, to see where the sound came from. I was not positive the hail was for me, and I did not put the brake on. I did not know whether the hail was for me or the car I had just passed. If there had been no other car around there, I would have stopped my car without looking back. I was just balancing on my right toe and left foot on that board, and I was jerked around, and turned a full summersault and went over. The board was where the driver stood. * * * If I stepped far over to the left, I would step off the board. When I heard this call I stepped over to the left so quick I did not see where I put my feet. I don't think my whole foot was on the board, and my foot slipped off the board. The board did not quite cover the hole even then. If that board had not been there, I would not have fallen. If the floor had been smooth from one side to the other, I would not have slipped and fallen. I never drove a car fixed like that before this car. * * * The board had been worn some by the drivers' feet, and it was between three-quarters of an inch and one inch thick above the floor of the platform. * * * I notified the car-repairer of the defect,...