Schaff v. Gordon

• Decision Date: 07 June 1919
• Docket Number: (No. 8153.)
• Citation: 214 S.W. 638
• Parties: SCHAFF v. GORDON.
• Court: Texas Court of Appeals

214 S.W. 638

SCHAFF v. GORDON.

(No. 8153.)

Court of Civil Appeals of Texas. Dallas.

June 7, 1919.

Rehearing Denied July 5, 1919.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by C. E. Gordon against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, and another. Judgment for plaintiff against defendant named, and he appeals. Affirmed.

Chas. C. Huff and J. M. Chambers, both of Dallas, for appellant.

Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.

TALBOT, J.

The appellee, C. E. Gordon, sued the appellant, C. E. Schaff, as receiver of the Missouri, Kansas & Texas Railway Company of Texas, and the Pullman Company, to recover damages in the sum of $3,000, alleged to have been sustained on account of injuries inflicted by the negligent closing of a Pullman car door upon appellee's hand and fingers.

There is no controversy over the pleadings. The case was tried before a jury, submitted upon special issues, and upon the findings of the jury judgment was rendered in favor of the appellee against the appellant for the sum of $500, and in favor of the Pullman Company. The appellant's motion for a rehearing being overruled, he perfected an appeal. No appeal from the judgment in favor of the Pullman Company was prosecuted.

At the close of the evidence the appellant, by motion in writing and by a special charge, requested the court to direct the jury to return a verdict in his favor. This motion of the appellant was overruled, and said special charge was refused. The appellant excepted to these rulings of the court and by several assignments of error complains of them in this court. The propositions contended for may be stated as follows: First, the evidence fails to raise any issue of negligence on the part of appellant or its servant who closed the door, whereby appellee's fingers were injured; second, the evidence fails to show that appellee's injury was the proximate result of negligence on the part of appellant's servant who closed the door; third, the evidence conclusively shows that appellee was guilty of contributory negligence in having his fingers in the crack of the door until they were caught. In support of these propositions appellant cites Railway Co. v. Overall, 82 Tex. 247, 18 S. W. 142.

The facts are without dispute and are substantially as follows: The Missouri, Kansas & Texas Railway Company of Texas was, at the time of the accident in question, in the hands of the appellant as receiver, and the Pullman coaches in the train upon which the accident occurred were being used by the receiver as vehicles for the carriage of passengers. The appellee, at the time of receiving the injury complained of, was a passenger upon the train of said receiver en route from Dallas, Tex., to St. Louis, Mo.; his transportation including Pullman accommodations. The lines of railway then being operated by appellant and the train upon which appellee was a passenger crossed Red river a few miles north of Denison, Tex. As the train upon which appellee was a passenger was leaving Denison the appellee, accompanied by Jess Hassell, boarded the rear car, and, passing through two or three coaches, reached the vestibule of the Pullman car in which they had their reservations. When appellee and his friend, Hassell, reached this vestibule, the door leading from it into the Pullman car was standing open, being so held by a catch attached to the inside wall of the car. Attached to the door was an oil lamp check spring which prevented the door from slamming shut when released from the catch on the wall and caused it to close gradually. If the door was pushed with sufficient force to close it instantly it would break the check. The floor of the vestibule of the car consisted of a platform immediately in front of the car door. On either side of this platform were trapdoors which shut down over the steps of the platform leading up from the outside. These trapdoors were down, and they, with the platform, make the floor of the vestibule about seven feet long across the end of the car and three feet wide from the end of the car and car door to the rear wall of the vestibule. The door in the end of the car was about three feet wide. When appellee and his friend, Mr. Hassell, reached the vestibule of the coach in question the train was nearing Red river, and Mr. Hassell suggested to appellee that they stop and see the Frisco bridge over the river, which was east of the bridge of the Missouri, Kansas & Texas Railroad and over which appellee and Hassell were to pass, but appellee suggested that they go inside the coach. They stopped, however, on the platform, and remained there a minute or two with the view of seeing the bridge. Mr. Hassell was standing at and leaning against the end of the vestibule facing the end door of the car. The appellee, Gordon, was standing next to the end of the car. At this time the outside door of the vestibule which inclosed the steps on the east side was open. While appellee and Hassell were standing on the platform a negro porter came by, and appellee, standing next to the end of the car, stepped to one side to let him pass and placed his hand on the door jamb of the door in the end of the car with his fingers in such position that they could be caught and mashed by the closing of the door. The porter came from towards the rear of the train and passed through the vestibule going north in the direction the train was moving. When the porter got inside the car, without looking back and with his back towards appellee and Hassell, he took hold of the door with his right hand, pulled or jerked it from its fastening, passed on and the door closed, mashing appellee's fingers. According to the testimony of Mr. Hassell, he did not see the porter until he caught hold of the car door, and there is no positive testimony that the porter knew that appellee's hand was on the facing of the door or door jamb; nor does it appear that he knew of the accident. The porter did not stop on the vestibule, but passed right on through the end door into the coach, and from the inside released the door from the catch and caused it to close. The appellee, in stating how he got hurt, testified, in substance, that he and Hassell had stopped on the rear end of the Pullman in which they had their berths for possibly a minute or a minute and a half; that he was standing on the main part of the platform in front of the door preparing to go in, and Mr. Hassell says, "Let's stop and see the bridge;" that he said, "No; let's go in the smoker;" that about that time the porter was coming back of him; that he stepped out of the way and let the porter pass, and as he did so he reached up and took hold of the door, inasmuch as the outside door, that is, the door from the vestibule to the ground, was open; that he did not see the porter's face and could not identify him; that he saw the porter when he took hold of the door and pulled it loose from the little bracket, and that the porter kept on going; that he was off his balance when he stepped out of the way and reached over with his hand to push the door open; and that he was in such a position that he could not very well push the door open. He further testified that it was the edge of the door where the hinges were attached which caught his fingers as that edge closed toward the jamb to which the door was hinged; that the door was stopped before it got clear to and locked; that his hand was in the jamb of the door when the negro passed through the door; that he had to step out of his way to let him by, and he passed by his (appellee's) hand while it was on the door jamb; that the porter did not stop and look at his hand, and that he did not know whether he saw it or not; that the porter passed right on by him, and as he went on inside he caught hold of the edge of the door on the knob or latch side, and as the door came shut he (appellee) caught it and kept it from coming entirely to, but that it closed sufficiently to catch and mash his fingers flat and cut them open to the first joint. The porter did not testify on the trial of the case.

The contention of the appellee is that whether appellant's servant in closing the door failed to exercise that degree of...