San Antonio Traction Co. v. Flory.

• Decision Date: 06 February 1907
• Citation: 100 S.W. 200
• Parties: SAN ANTONIO TRACTION CO. v. FLORY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

100 S.W. 200

SAN ANTONIO TRACTION CO. v. FLORY.^*

Court of Civil Appeals of Texas.

February 6, 1907.

Rehearing Denied March 6, 1907.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Joe Flory against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ogden & Brooks, W. H. Lipscomb, and Walter P. Napier, for appellant. Jas. Routledge and J. R. Norton, for appellee.

JAMES, C. J.

A judgment in this cause was reversed by this court upon a former appeal. San Antonio Traction Co. v. Flory, 89 S. W. 278. The nature of the case is there indicated. At the recent trial a verdict was returned for the plaintiff for the sum of $3,500.

The first assignment of error questions the correctness of the following portion of the charge: "Or if you believe from the evidence that said car was stopped near the corner of Simon and South Flores streets, and that plaintiff's wife proceeded to alight therefrom, and that the step or platform, or both, was muddy and slippery, and that the agent of the defendant, the conductor in charge of said car, failed to assist plaintiff's wife to alight therefrom, and that the failure of said conductor to assist plaintiff's wife from said car was negligence, and that such negligence, if any, was the proximate cause of the accident to plaintiff's wife, if any, and that she was injured thereby, then you must find your verdict for the plaintiff." Several objections are made to this instruction: (1) That it was error to submit an issue as to it being defendant's duty to assist plaintiff's wife; the undisputed evidence being that she was a young, strong, robust, and active woman. The conclusion we reached in the former opinion is subjected to an earnest and vigorous criticism by counsel, to which we have endeavored to respond by giving it the careful reflection it deserves. It must be remembered that the duty of a carrier to a passenger is to exercise that high degree of care which would be exercised by very prudent persons. There can be no question that it owes that duty to passengers while in the act of alighting from its car. All the cases agree upon the principle that it is the duty of the carrier to use that high degree of care to keep its platforms and steps in a safe condition for passengers to alight. And we think it is safe to say that, when the carrier sees fit to maintain a place of exit that is dangerous, other duties then become entailed upon it, such as warning or assisting the passenger, in the exercise of proper care due to that situation. What omissions, in such a situation, would amount to negligence, are questions of fact for the jury, and, under our system, where all matters of fact are required to be submitted to the jury, such a question is never for the court, unless the facts and circumstances are plainly such that admit of no issue on the subject.

We will take the case of a young and robust person, unincumbered with luggage, who is about to alight from a car. If the exit is a safe one, there is nothing either in respect to the exit, or to the person alighting, to present or suggest the appearance of danger to the mind of the conductor. In such a case there would be no such issue to submit as the necessity of warning or assisting such person, because clearly no duty in that regard could be said to have arisen. In the present case, however, mud had been allowed to accumulate and remain upon the step and made it slippery, which condition, every one knows, was unsafe, in being inclined to cause persons stepping upon it to fall. Defendant saw fit to continue to use the step in that condition. Defendant's agent must have known of this condition of the step (his own testimony indicates that he did) and of the likelihood of injury therefrom to persons alighting. The rule, upon principle, is the same whether the appearance of danger arises from the condition of the passenger, or from the condition of the means of egress. The rule has frequently been applied in cases where the car was stopped so that the descending passenger would step into a dangerous place, where such danger was known, or should have been known, to the carrier. To use the language of a Kentucky case: "If the street at the place of discharging the passenger presents a dangerous condition to one alighting there, and such danger is obvious to the passenger, the carrier is not liable to him for injuries received from such defects. But where the danger is known, or is such as must have been known to the carrier, and is unknown to the passenger, the carrier is bound to warn the passenger of the danger, or to assist him in safely alighting, or stop the car at a point beyond or short of the dangerous point. Its failure to take one of these precautions renders it liable to the passenger sustaining injury because of such neglect." Sweet v. Louisville Ry. Co., 67 S. W. 4. It is obvious that whether the dangerous...