San Antonio & A. P. Ry. Co. v. Wiuvar

• Decision Date: 19 December 1923
• Docket Number: (No. 7048.)
• Citation: 257 S.W. 667
• Parties: SAN ANTONIO & A. P. RY. CO. v. WIUVAR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

257 S.W. 667

SAN ANTONIO & A. P. RY. CO. v. WIUVAR.^*

(No. 7048.)

Court of Civil Appeals of Texas. San Antonio.

December 19, 1923.

Rehearing Denied January 16, 1924.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Dolores Wiuvar against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Boyle, Ezell & Grover, of San Antonio, for appellant.

Davis & Long, of San Antonio, for appellee.

COBBS, J.

Appellee sued appellant to recover damages for personal injuries alleged to have been inflicted on her on the 30th day of January, 1922. It was alleged that she was a passenger upon appellant's train, and when she attempted to alight at appellant's passenger depot, on account of appellant's failure to furnish a safe place for passengers to alight from the passenger coach to the platform, she was caused to fall with great force and violence to and against the platform and ground, and was seriously and permanently injured.

It was also alleged that, by reason of appellant's failure to furnish a safe place to stop the train at said depot where appellee could safely alight, it was its duty to furnish assistance to the appellee in alighting from the train, which appellant wholly failed to do. Also that the negligence of appellant in failing to perform its duty in the manner alleged and indicated directly caused and directly contributed to appellee's said injuries. There was no defense pleaded other than a general denial.

The case was tried with a jury, who awarded appellee $7,500, for which amount judgment was entered in favor of appellee.

The undisputed evidence showed that appellee boarded the train at Saspamco, having no one traveling with her, except there was on the train with her a Mexican boy, who appeared then and afterwards to be looking after her. She was a stout, strong Mexican woman about 50 years old, weighing about 196 pounds.

She nor the boy with her spoke the English language, and their testimony was elicited through the aid of an interpreter, which is always unsatisfactory, and very much so in this case. Briefly and concretely, the facts, as we gather them, are: When the train arrived at the depot appellee departed from the train together with the other passengers, the conductor, porter, and the Mexican leaving ahead of her, and standing on the platform as she began to descend the steps to reach the platform. She was not incumbered with baggage, and had not called for assistance. It had been raining, and the platform was wet and slippery. When she placed her right foot on the platform it slipped, and she fell, injuring herself.

If appellant failed to provide a safe landing place for appellee, a passenger, to alight from its train on the occasion named, or, as appellee contends, negligently provided an unsafe place for appellee to alight from said train, and this negligence directly caused and contributed to appellee's injuries, it would be liable to appellee, as the consequence of its negligence.

Taking appellee's own testimony and that of her traveling companion, and for the purpose of determining the negligence of appellant from her own standpoint, and for the time being lay out of sight any of appellant's testimony, save that of the master car builder which is undisputed, to get a clear conception of the steps of the car and the platform, and the distance from the steps to the platform, it is not apparent there was actionable negligence shown sufficient upon which to base a recovery.

The testimony is undisputed that the depot platform was about 18 feet wide, was made of concrete, and practically level, and but a few inches, say 14 inches, not over 20 inches, below the lowest step of the car. There was no defect claimed or proven in the platform or steps themselves, but appellee pleaded that it was a dangerous and unsafe place for passengers to alight, "and especially this plaintiff to alight from said train, in that the distance from the step of the coach in which plaintiff was a passenger to the platform or ground was so great as to make it unsafe for plaintiff to alight," and for that reason appellant negligently failed to assist plaintiff in alighting from said train.

The first issue submitted to the jury was: "Was the distance from the bottom step down to the depot platform so great as to make it unsafe for the plaintiff to alight from said step at said place?" And next in sequence, Was it negligence "to stop the train in such position that plaintiff was required to alight at said place"?

It is true, common carriers owe the highest degree of care to their passengers. But it is shown here that the platform was of the very best material, made of concrete, and no defect in its construction; numerous passenger cars daily stop and discharge their passengers; and no complaint is made of its construction; that the platform and the steps from appellant's car were in good repair, and no complaint is made as to any defect in their construction and maintenance, but the complaint in respect thereto was that it was unsafe for "plaintiff to alight from said train, in that the distance from the step of the coach * * * to the platform or ground was so great as to make it unsafe for plaintiff to alight."

Appellee herself was familiar with that train and that platform provided for passengers to alight, as she had traveled over it before. The distance to the platform from the last step was the usual and customary distance in such cases, and the same as used on Ford passenger cars.

When appellee stepped from the last car step, following other passengers leaving the car, she placed her foot upon the platform, where her foot slipped, and she fell and injured herself. No box was put down for her or any other passenger. The porter stood there ready to assist her or any passenger. The conductor was close by, and next to appellee stood her friend, the Mexican boy. Appellee called for no assistance, neither did any other passenger. The question arises at the very outset, Was there enough testimony on the question of negligence to submit to the jury?

Certain cases may arise, as said by this court in Railway Co. v. Williams, 183 S. W. 1185, when it may become the duty of the carrier to assist its sick, weak, old, or disabled passengers from the train, but not so for strong healthy females or other persons well able to care for themselves. Ry. Co. v. McCullough, 18 Tex. Civ. App. 534, 45 S. W. 324; Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S. W. 200; Railway Co. v. Finley, 79 Tex. 85, 15 S. W. 266; Railway Co. v. Spear (Tex. Civ. App.) 107 S. W. 613; Hutchinson on Carriers, section 617a, page 73.

Appellee contends that her case is controlled by the cases of North Texas Tr. Co. v. Danforth, 53 Tex. Civ. App. 419, 116 S. W. 147; Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308; Flory v. San Antonio Tr. Co. (Tex. Civ. App.) 89 S. W. 278; Railway Co. v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96; Campbell v....