St. Louis & S. W. Ry. Co. v. Ricketts

• Decision Date: 13 January 1900
• Citation: 54 S.W. 1090
• Parties: ST. LOUIS & S. W. RY. CO. OF TEXAS v. RICKETTS et ux.
• Court: Texas Court of Appeals

Page 1090

54 S.W. 1090

ST. LOUIS & S. W. RY. CO. OF TEXAS v. RICKETTS et ux.

Court of Civil Appeals of Texas.

January 13, 1900.

Appeal from Hunt county court; L. A. Clark, Special Judge.

Action by R. F. Ricketts and wife against the St. Louis & Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Reversed.

This suit was brought by appellees, R. F. Ricketts and his wife, S. B. Ricketts, against appellant, for damages claimed to have resulted to Mrs. S. B. Ricketts, caused by the negligence of appellant in this: It is alleged by plaintiffs in their petition, in substance, that on the 30th day of October, 1897, they purchased two first-class passenger tickets from the agent of appellant at Greenville, Tex., to the town of Clinton, a station on appellant's railway; that about 2:30 a. m. plaintiff and his wife boarded appellant's train at Greenville, bound for said station; that plaintiffs were unacquainted with said station, and that the appellant, its agents and servants, negligently and carelessly failed to announce the station of Clinton, and failed to stop its train at said station, but carried them past said station to a station on said road called "Nevada," where they were put off the train; that at this station appellant, its agents and servants, with full knowledge of all the circumstances surrounding their stopping at said station, the weather being cold and rainy, neglected to have any fire in or about said depot; that plaintiff and his wife were compelled to remain there about five hours in a cold room, without fire; and that by reason of said exposure plaintiff's wife was made sick, and suffered the injuries complained of in plaintiffs' petition. The railway company, defendant, interposed special exceptions, a general denial, and special pleas of contributory negligence, etc. The trial resulted in a verdict and judgment in favor of the plaintiffs for $700, and the defendant has appealed.

S. H. West and Perkins, Gilbert & Perkins, for appellant. Evans & Elder and H. D. Wood, for appellees.

FINLEY, C. J. (after stating the facts).

The fifth paragraph of the court's charge is complained of, and is in part as follows: "If the defendant was guilty of negligence to plaintiff's damage, and if plaintiff was guilty of negligence which contributed to the injury or damage, defendant would not be liable for such damage or injury, unless it has been shown that the negligence, if any, of defendant's servants, was the direct cause of the damage; nor would plaintiff be entitled to recover for injury or special damage on account of defendant's negligence (if any there was) if he or his wife could have avoided the consequences of such negligence by the exercise of ordinary care and prudence on their part; that is, such care and prudence as an ordinarily careful and prudent person would have used under the circumstances." The charge is defective. In effect, it states that, if both the defendant and plaintiff were guilty of negligence, and the defendant's negligence was the proximate cause of the damage, plaintiff was entitled to recover. Under this charge the jury might well have inferred it should find for plaintiff notwithstanding plaintiff's negligence contributed to the injury. As a proposition of law this is not correct. Whenever damages are sought to be recovered upon the ground of negligence, contributory negligence is a complete defense. If the charge had required the jury to find that the negligence of the plaintiff was not proximate, and therefore did not contribute to the injury, the principle of law announced would have been sound; but the form of the charge and the manner of announcing the principle would still have been objectionable under the facts of this case. There were two phases of negligence on the part of the plaintiff pleaded by the defendant. It is pleaded that the station to which the tickets were purchased was distinctly announced on the arrival of the train at the station Clinton, that the train was stopped a reasonable time for passengers to disembark, and that the failure of plaintiff and his wife to...