St. Louis S. W. Ry. Co. v. McCullough

• Court: Texas Court of Appeals
• Writing for the Court: Rainey
• Citation: St. Louis S. W. Ry. Co. v. McCullough, 33 S.W. 285 (Tex. App. 1895)
• Decision Date: 02 November 1895
• Parties: ST. LOUIS S. W. RY. CO. v. McCULLOUGH.

33 S.W. 285

ST. LOUIS S. W. RY. CO. v. McCULLOUGH.

Court of Civil Appeals of Texas.

November 2, 1895.

Appeal from district court, Upshur county; Felix J. McCord, Judge.

Action by A. R. McCullough against the St. Louis Southwestern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Sam H. West and Marsh & Butler, for appellant. Kearby & Greer, for appellee.

RAINEY, J.

This suit was brought by A. R. McCullough, plaintiff, to recover damages for injuries alleged to have been inflicted by the appellant railway company upon his wife, in carrying her by a station on its line of road. The petition alleged, in substance, that plaintiff's wife purchased a ticket at Fordyce, Ark., a station on appellant's road, to Big Sandy, Tex.; that, in going from said Fordyce to Big Sandy, it was necessary to change cars at Mt. Pleasant, a station on appellant's road; and that, when the train reached said Mt. Pleasant, appellant failed to stop its train a reasonable length of time, and also failed to notify plaintiff's wife that said station had been reached. It was also alleged that the conductor on appellant's train promised to assist plaintiff's wife in getting off the cars and making the change at said Mt. Pleasant, which he failed to do, and plaintiff's wife was carried to Plano, a station on appellant's road some 150 miles in a contrary direction from said wife's destination, and that by reason thereof she was delayed two days in reaching her destination, was made sick, put to inconvenience and worry, and suffered great physical and mental pain. Appellant pleaded that the usual and customary notice was given at Mt. Pleasant of the arrival of its train, and that the train stopped there a reasonably sufficient time for plaintiff's wife to disembark from its train and change cars, but she failed to do so, and in this she contributed to or caused such injury, if any, as she suffered. On trial before a jury a verdict, and judgment thereon, was rendered for plaintiff, from which this appeal is taken by the railway company.

Conceding the testimony of Mrs. McCullough to be true,—that the conductor failed to notify her when they arrived at Mt. Pleasant, and to assist her off the train,— yet the evidence fails, in our opinion, to show any liability upon the part of the railway company for her being carried by Mt. Pleasant. All the testimony shows that when Mt. Pleasant was reached the usual and customary notice was given of the arrival at the station, and that the train stopped a reasonable length of time for plaintiff's wife to debark from the train. This evidence was uncontroverted. It is true, Mrs. McCullough testified that, if Mt. Pleasant was called out, she did not hear it, and that she has no recollection of the train's stopping at such a place a reasonably sufficient time for her to debark. She further shows by her testimony that she did not know when she reached or passed Mt. Pleasant, and it is very probable that she was asleep at the time. Furthermore, she testified that the conductor told her when he first took up her ticket, on leaving Texarkana, that she would have to change cars at some station, but she failed to catch the name of the station, and did not know at what station she had to change. So it is probable from this statement that, even if she heard the name of the station Mt. Pleasant called when it was reached, she did not recognize it as the place at which she had to change cars. It was her duty to ascertain and learn what route she was to travel over, and, failing in this, she contributed to such injury as she sustained. The conductor was not authorized, nor was it his duty, to personally notify plaintiff's wife when they reached Mt. Pleasant, other than in the usual and customary way. If the usual and customary notification was given, by calling out the station in the car in which she was traveling, then the...