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

• Decision Date: 15 February 1902
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BALL.
• Court: Texas Court of Appeals

66 S.W. 879

ST. LOUIS S. W. RY. CO. OF TEXAS v. BALL.

Court of Civil Appeals of Texas.

February 15, 1902.

Appeal from district court, Dallas county; T. F. Nash, Judge.

Action by J. G. Ball against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Reversed.

E. B. Perkins and Perkins & Gilbert, for appellant. Henry & Henry and Mathis & Freeman, for appellee.

RAINEY, C. J.

Appellee sued to recover for personal injuries alleged to have been occasioned to him by the negligence of appellant's servants. We take from appellant's brief the following statement of the pleadings, which is sufficiently full and comprehensive for an understanding of the issues raised, viz.: "Plaintiff alleges that on the 17th of September, 1899, he was a passenger on appellant's train from Commerce to Carrollton, and was in a very nervous condition, suffering from a bone felon; that the conductor had told him the train did not stop at the depot at Carrollton, but would run to the crossing, where plaintiff would have to get off, about 200 yards from the depot, and, after leaving Plano, said conductor told appellee that he wanted him to be ready, and when the train whistled to get up, and go out of the coach on the platform, so he could get off without delaying the train; that presently the whistle blew for a station, and, appellant having failed to announce the name of it, appellee, believing that it was Carrollton, went out on the platform; that the negro porter came out of the door in a rushing manner, and shoved plaintiff to the left, and at the same time violently closed the door, and caught three fingers between the door and the door facing, and thereby caused the alleged injury; that plaintiff made a great effort to release his fingers, and in doing so threw out his right hand, on the little finger of which the bone felon was, and struck it against the iron railing around the car platform, thereby causing great injury, etc.; that he was a physician, and, his fingers being injured, he cannot successfully perform obstetrical operations; that he was earning $250 per month, and by reason of his injuries he was damaged to the amount of $16,000." Appellant answered by general demurrer, general denial, and that appellee contributed to his own injury by refusing to keep his seat in the car when there were ample accommodations, and, after repeated requests from the conductor to remain inside the coach and off the platform, refused to do so, but willfully persisted in standing on the platform while the train was in rapid motion, and after notice that it was dangerous, and when he was not near his destination, and after the conductor had told him to keep his seat, and he would advise him when he reached his destination; that appellee negligently failed to care for or procure treatment for his fingers for several days after the accident, and his negligence greatly aggravated his condition, and further aggravated it and the bad condition of his blood by the excessive use of intoxicants. Appellee recovered judgment for $500.

The court charged the jury that "it is not negligence of itself for a passenger to stand on the platform of a car, but it is for you to determine from all the circumstances of case whether or not plaintiff was guilty of negligence." This charge is complained of on the ground that it is upon the weight of the evidence. The charge is not free from criticism. Standing on the platform of a moving train may or may not be negligence, which is to be determined by the jury from the circumstances of the particular case. The statement that it was not in itself negligence was calculated to mislead the jury. Nor do we think the error was cured by the remainder of the paragraph, for it does not specifically tell the jury that they were to determine from the evidence whether or not standing on the platform was negligence, but it was for them "to determine from all the circumstances of the case whether or not the plaintiff was guilty of negligence." The jury may have construed this as meaning that standing on the platform was not negligence, but that other circumstances were to determine the question of negligence. The learned trial judge doubtless had the correct rule in mind, but he failed to properly express it. As expressed, it was calculated to mislead the jury.

Various special charges were requested by appellant's counsel which defined contributory negligence and attempted to apply the law to the facts on this issue. The charge of the court was general, and did not define contributory negligence, or charge affirmatively on this issue applying the law to the evidence. Appellant introduced evidence in support of its plea of contributory negligence to the effect that appellee had been warned by the conductor that it was dangerous to go out on the platform; that it was contrary to the rule of the company; and for him to keep his seat, and he would be told when his station was reached. The charges requested were not, in our opinion, correct in assuming that it was negligence on the part of appellee in standing on the platform and in violating a rule of the company. Neither is error per se, but for determination by the jury. Bonner v. Glenn, 79 Tex. 531, 15 S. W. 572; Railway Co. v....