Shawver v. American Ry. Express Co.
| Decision Date | 24 December 1921 |
| Docket Number | (No. 8613.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 236 S.W. 800 |
| Parties | SHAWVER v. AMERICAN RY. EXPRESS CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
Suit by S. Shawver against the American Railway Express Company and others. Judgment for defendants, and the plaintiff appeals. Affirmed.
Bumpass & Osborne, of Terrell, for appellant.
Smith, Robertson & Robertson, and Gains G. Gannon, all of Dallas, for appellees.
This suit was instituted by appellant to recover damages for personal injuries alleged to have been sustained by her as a result of negligence on the part of the American Railway Express Company.
The allegations upon which appellant sought to predicate her cause of action were substantially as follows: That on or about September 1, 1919, there was in the city of Terrell a Union Depot used by the Texas & Pacific Railroad and the Texas Midland Railroad, which depot was surrounded by a smooth raised platform covered with gravel; that adjacent to the depot there was a United States mail box, which had stood in its location many years, which was then used and had theretofore been used by the public for the deposit of mail; that the mail box was located about four or five feet from the south side of the depot building, a portion of which was occupied by the express company under lease from the railroad; that on September 1, 1919, appellant, while on her way to the mail box located as aforesaid to deposit a letter therein, stumbled over the tongue of a truck on the depot platform, which caused her to fall, with the result that she received injuries for which she sought to recover damages. It was alleged that the express company's four-wheel hand trucks were so arranged that a person going to and from the mail box would have to pass between them by reason of the position in which the express company's employees had negligently left them standing; that the trucks were so constructed that while they were not in use the tongues could be elevated, and it was the custom of the express company, as well as its duty, to leave the trucks, when they were not in use, with the tongues elevated; that the tongue of the particular truck over which the appellant stumbled had not been so elevated, but, on the day of the injury, negligently had been left down, with the result as aforesaid; that appellant stumbled over it and received painful injuries.
Appellee answered by general demurrer and general denial and by a plea of contributory negligence.
The trial was had before the court and a jury, and upon the conclusion of the evidence introduced in behalf of appellant the court peremptorily instructed the jury to render a verdict for appellee. In conformity with the verdict so rendered, judgment was entered for appellee. The substance of the appeal is comprehended in the contention that the court erred in giving a peremptory instruction.
According to the proof adduced in behalf of appellant, the Texas & Pacific Railroad and the Texas Midland Railroad intersect about at right angles in the city of Terrell. The Union Station is built in one of the angles formed by the intersection and is in an "L" shape, so that one wing of it extends north and south on the west side of the Texas Midland track and the other extends east and west on the north side of the Texas & Pacific track. The American Railway Express Company had leased an office from the railroad companies, and this office was situated in the west end of the "L" extending east and west along the Texas & Pacific Railway Company's track. The express company used five or six four-wheel hand trucks on which to convey, between the express office and arriving and departing trains, goods which were sent and received by express. When these trucks were not in use they were ordinarily parked along the wall of that part of the building occupied by the express company; the rear of each truck being against the wall and the tongues being elevated at an angle of about 75 degrees and fastened in this position with hooks. The tongue of each truck was attached to the front axle at a point about 18 inches from the ground. Each tongue was made of a piece of timber about 6 inches wide and about 4 inches thick, and when the tongue was down, it extended out about 4 feet from the truck bed.
About 3:30 o'clock in the afternoon of September 1, 1919, appellant was on her way to the mail box mentioned in her petition to mail a business letter. She desired to mail the letter so that it would leave on the afternoon train, which came about 4 o'clock. She came upon the platform from the north and passed the baggageroom and went around on the west side of the express office toward the mail box; when she was a short distance from the mail box she stumbled over the tongue of one of the express trucks which had been left down, and there received the injury. At the time this accident occurred, three or four of the trucks were parked on the west side of the express office with their rear ends against the wall, and one was parked on the north side with the tongue toward the wall. The truck over the tongue of which appellant stumbled was a few feet from the west wall of the building, and this particular truck was standing with its front end toward the wall. There was nothing on the depot platform at the time except the trucks; the platform was an exceptionally long one; it extends west a distance of 200 or 300 feet from the west wall of the express office; the mail box was located at the southwest corner of the express office and 2 or 3 feet from the corner; the entire platform was constructed of a hard substance and the surface was uniformly smooth and hard.
The facts recited in the evidence given by appellant in her own behalf, with slight variations so far as they pertain to the description of the premises where she alleged she was injured, are substantially the same as the facts to which the other witnesses testified. We accordingly state her testimony bearing upon this feature as reflecting the facts upon which reliance is placed to constitute liability arising from alleged negligence. That portion of her testimony is as follows:
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