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

• Decision Date: 01 November 1902
• Citation: 70 S.W. 558
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BYERS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 558

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

Court of Civil Appeals of Texas.

November 1, 1902.

Appeal from district court, Hunt county; H. C. Conner, Judge.

Action by L. H. Byers against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins, Geo. S. Perkins, and D. Upthegrove, for appellant. Bennett & Jones, for appellee.

TEMPLETON, J.

This suit was brought by J. W. Byers, as next friend of his minor son, L. H. Byers, against the St. Louis Southwestern Railway Company of Texas, to recover damages on account of personal injuries received by the said minor while attempting to alight from one of the company's trains. Byers and his family, including the minor plaintiff, were passengers on the train, and the accident occurred at their point of destination. When the train stopped at the station, Byers and his said son, together with the other members of the family, started to get off. Byers alighted in safety, and the boy had reached the steps of the car, when the operatives of the train suddenly and negligently moved the train forward, thereby throwing him to the ground and injuring him. Byers and his said minor son used reasonable care and diligence in leaving the train. There was a trial by jury, and the plaintiff obtained judgment.

One paragraph of the charge to the jury reads as follows: "Railway companies are not insurers of the safety of their passengers, but they are required to exercise the highest degree of care that very cautious, competent, and prudent persons would exercise under similar circumstances, and a failure to exercise such care is negligence." It is insisted that this charge required a higher degree of care on the part of the defendant than that imposed by law, and practically made the defendant an insurer of the safety of the person of the plaintiff, for the reason that it required of defendant the highest degree of care of which the human mind is susceptible. Appellant argues that the charge requires the greatest care that the most cautious, competent, and prudent persons among such experts would exercise under similar circumstances, and furnishes no standard by which to measure the care required. This analysis of the charge cannot be accepted. The charge imposed upon appellant the duty to use the care which would have been exercised under like conditions by a certain class of persons, and not the care which would have been exercised by the most skillful and careful individuals to be found in the class of persons named. It thus furnishes a safe and sound standard for measuring the care required, the criterion being what the average man of the given class would have done under the same circumstances. That carriers of persons are bound to use the care which would be exercised by very cautious, competent, and prudent persons is so well settled that it is not questioned. But it is contended that railway companies are required to use only that degree of care which would ordinarily be exercised by the said class of persons, and are not required to use the highest degree of care which would be exercised by such persons. We are not sure of the existence of the distinction which the appellant attempts to draw. It seems to us that ordinarily very skillful and careful persons would, where the personal safety of their fellow men was involved, exercise the highest care which the nature of the case permitted. At all events, a less degree of care than the highest care practicable is nowhere recognized as the measure of the duty of a carrier of passengers. The charge under consideration does not require of the carrier the highest possible care, but only the highest care which would be exercised by very cautious, competent, and prudent persons under similar circumstances, and does not, therefore, transgress the rule laid down in adjudicated cases in this state. Charges have been condemned which required "all possible care," "the greatest possible care and diligence," and "the highest degree of care and diligence that human judgment and foresight are capable of." Railway Co. v. Welch, 86 Tex. 204, 24 S. W. 390, 40 Am. St. Rep. 829; Fordyce v. Withers, 1 Civ. App. 544, 20 S. W. 766; Fordyce v. Chancey, 2 Civ. App. 27, 21 S. W. 181; Railway Co. v. Shields, 9 Tex. Civ. App. 655, 28 S. W. 709, 29 S. W. 652. On the other hand, charges have been approved which required the use of "the utmost care," and "the highest degree of care." Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Railway Co. v. George (Tex. Civ. App.) 60 S. W. 313; Railway Co. v. Craig, 68 S. W. 239, 5 Tex. Ct. Rep. 25. See, also, Railway Co. v. Broadhurst (Tex. Civ. App.) 68 S. W. 315, and cases there cited. The charge in this case affirmatively instructed the jury that appellant was not an insurer of the safety of appellee, and we do not think that the jury could have been misled to the injury of appellant. Our conclusion is that there was no error in the charge under consideration, and appellant's assignment in relation thereto is overruled.

The plaintiff's theory of the case was submitted in this language: "If you believe from the evidence that on December 24, 1900, the plaintiff, L. H. Byers, with his father and mother, were passengers on one of the defendant's trains, bound for the station of Dawson; and if you further believe that as soon as the train stopped at Dawson the plaintiff and his father arose from their seats, and proceeded at once to leave said train; and if you further believe that while attempting to alight from the train, the plaintiff reached the...