St. Louis S. W. Ry. Co. of Texas v. Highnote

• Decision Date: 10 December 1904
• Citation: 84 S.W. 365
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. HIGHNOTE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 365

ST. LOUIS S. W. RY. CO. OF TEXAS v. HIGHNOTE.^*

Court of Civil Appeals of Texas.

December 10, 1904.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Action by R. P. Highnote against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Frost & Neblett, for appellant. Richard Mays, for appellee.

RAINEY, C. J.

The appellee sued appellant to recover damages for personal injuries alleged to have been occasioned by the negligence of appellant's servants. Appellant answered by demurrers, contributory negligence, and assumed risk. Judgment in favor of appellee.

The evidence shows that in December, 1901, the conductor of one of appellant's east-bound passenger trains, at Corsicana, agreed to carry appellee and one Martin, another policeman, out about the East Side School House, in said city, they being on the lookout for pickpockets. The conductor agreed that he would slack up enough for them to get off with safety at the place mentioned, and he so informed the engineer of this arrangement. Before reaching the place agreed upon Martin jumped off. Appellee went down on the steps of the coach, and, concluding that the train was running too fast for him to alight in safety, returned within the coach and pulled the bell cord. The coach began to slow up, and when the speed had reached its lowest, as appellee thought, he alighted from the train and was injured. At the time he alighted the train was running at a speed of more than six miles an hour, and too fast to alight in safety, but it was a dark night, and appellee could not tell, and thought it was safe to do so. An ordinance of the city of Corsicana made it a penalty for operators of trains to run trains faster than six miles an hour within the corporate limits. The conductor was not present when appellee alighted, and had no knowledge of his going to alight further than shown by the agreement that he would slack up at that point.

Appellant complains of the following paragraph of the court's charge, to wit: "As the arrangement contemplated that plaintiff should alight from the moving train, then plaintiff assumed whatever risk there was in the act, provided the train was slowed up as agreed, or to what was reasonably understood by the conductor to be a safe speed for the plaintiff to alight."

The first objection to said charge is that "it is on the weight of the evidence, in that the agreement contemplated that appellee should depart from the train while in motion, and withdrew such issue from the consideration of the jury." The evidence warranted this assumption by the court. The conductor testified to telling O'Neil that he would slow up so that they (meaning appellee and Martin) could get off with safety. "I told the engineer to slow up over on the top of the hill near the school building. The instructions I had given the engineer caused the train to slow down." O'Neil testified that the agreement was that the train would slow up at the point indicated, so they could get off in safety. The agreement was made between O'Neil and the conductor in reference to appellee and Martin. The testimony was such that the jury would not have been warranted in reaching any other conclusion. Hence there was no error in the court assuming the fact. Nor is it subject to the second objection, that it submits the issue that the speed of the train at the time appellee departed therefrom was reasonably understood by the conductor to be a safe speed for the plaintiff to alight. The charge relates to the risk assumed by appellee under the agreement, and has no reference to the speed of the train at the time appellee departed therefrom, as to whether or not it was greater than the conductor considered safe for appellee to alight in safety.

On the question of assumed risk, the court refused the following special charge requested by appellant, viz.: "The proof shows that the plaintiff alighted from the train while in motion and without the advice of knowledge of the conductor. Now, if you believe from the evidence that the conductor agreed to stop the train so as to allow the plaintiff to depart in safety, and if you further believe from the evidence that the train had not stopped when plaintiff departed therefrom, then you are instructed that the plaintiff assumed all risk in alighting from the train, and in such event you will find for the defendant." This charge is based upon the theory that the agreement was to stop the train so appellee could alight in safety. The evidence did not warrant this theory, as it clearly shows the train was not to stop, but was only to slow up. There was no error in refusing the charge.

The appellant complains of the following paragraph of the court's charge, viz.: "If the plaintiff was on the train under an arrangement with the conductor, as alleged, he was rightfully on the train, and it was the duty of the conductor to use reasonable diligence and care to carry out the agreement, and to afford plaintiff an opportunity to safely alight, provided he himself should exercise reasonable care in the choosing of the occasion and in the doing of the act. Such arrangement would not bind the conductor to make the exit of the plaintiff safe, but only by reducing the speed of the train, if it was going too fast, to give plaintiff what reasonably appeared to the conductor a chance to get off in safety, in the use of ordinary care on plaintiff's part." The objection urged to the charge is that "it required the conductor to use reasonable diligence and care to carry out the agreement, and to afford Highnote an opportunity to alight in safety, and at the same time allowed Highnote to choose the time and place in departing from the train. The charge does not apply to the evidence and is confusing and misleading." Under the agreement, we think the charge not objectionable. The agreement was that the train was to slow up at a certain place, and when it did slow up at that place appellee was justified in believing that it was the occasion contemplated by the agreement for him to alight, and if he used proper care in doing so he did all that was required of him, and it was the conductor's duty to use care to see that the train was...