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

• Decision Date: 05 March 1898
• Citation: 45 S.W. 324
• Parties: ST. LOUIS S. W. RY. CO. v. McCULLOUGH.
• Court: Texas Court of Appeals

45 S.W. 324

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

Court of Civil Appeals of Texas.

March 5, 1898.

Appeal from district court, Upshur county; Gordon Russell, Judge.

Action by Mrs. M. J. McCullough against the St. Louis Southwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Sam. H. West, Marsh & McIlwaine, and J. W. Fitzgerald, for appellant. Kearby & Greer, for appellee.

RAINEY, J.

This suit was brought by appellee to recover damages of appellant, alleged to have been sustained by her as a passenger on appellant's road by being carried by a station where she was to change cars in order to reach her destination. Judgment was rendered below against appellant, from which this appeal is prosecuted. This is the second appeal of this case. The result of the first appeal is reported in 33 S. W. 285, where a full statement of the case will be found. The evidence shows that plaintiff was a passenger on defendant's train, her destination being Big Sandy, a station on said road; but, in order to reach same, it was necessary to change cars at Mt. Pleasant. The issue of negligence on the part of defendant railway company rests mainly upon the fact whether or not defendant's train was stopped long enough at Mt. Pleasant for plaintiff to have alighted in safety, and whether or not the usual and customary notice of the arrival of the train at said station was given by defendant's servants.

The first assignment of error presented is, in effect, that the evidence does not support the verdict and judgment. As there are some errors of law presented which will require a reversal of the judgment, we deem it improper to discuss the evidence. Therefore will not pass upon this assignment.

In charging upon the duty of the defendant in transporting passengers, the court charged the jury that it was the "duty of the defendant company to safely transport the plaintiff to said Big Sandy station; and in this duty of safe transportation was included the duty of calling and announcing the station in the car in which plaintiff was traveling, at which it became necessary for plaintiff to change cars in order to reach her destination, and of stopping its train at said station a reasonably sufficient length of time to enable plaintiff to safely alight therefrom." In this connection, the defendant requested the following charge, to wit: "Gentlemen of the jury, you are charged that, while it is the duty of the railroad company to use the highest degree of care and caution to provide for the safe and comfortable transportation and delivery of their passengers, yet they do not, by undertaking to carry a passenger, insure his safe debarkation at his point of destination or place where they are required to change cars." In no part of the court's charge was there any other instruction as to the degree of care required of defendant in carrying passengers. The effect of the charge given was to make defendant an insurer of the safety of plaintiff during transportation. Such is not the law. The defendant was not an insurer under the law, but was required to use such a high degree of care in protecting its passengers from danger as would be used by very prudent and competent persons under similar circumstances. The correct rule laid down in Railroad Co. v. Halloren, 53 Tex. 53, and approved in Railway Co. v. Welch, 86 Tex. 203, 24 S. W. 390, is as follows: "Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them as would be used by very cautious, prudent, and competent persons under similar circumstances." See the authorities cited in the Welch Case, supra; also, Railway Co. v. Wortham, 73 Tex. 25, 10 S. W. 741; Railway Co. v. Underwood, 64 Tex. 463; Railway Co. v. Williams, 82 Tex. 342, 18 S. W. 700; Railway Co. v. Stricklin (Tex. Civ. App.) 27 S. W. 1093; Fordyce v. Withers, 1 Tex. Civ. App. 540, 20 S. W. 766; Fordyce v. Chancey, 2 Tex. Civ. App. 24, 21 S. W. 181; Railway Co. v. Woods (Tex. Civ. App.) 40 S. W. 846. It was not necessary in this case for the court to have instructed the jury upon the measure of care devolving upon the defendant, further than to inform them as to the duty of stopping the train at the station a reasonable time for passengers to alight, and giving the usual and customary notice of its arrival. If a charge on this point had been necessary, it should have embodied the rule as above indicated.

Appellant complains of the action of the court in admitting the testimony of certain witnesses, as indicated below: "The witnesses J. C. McCullough, R. W. Simpson, F. J. McCord, and B. Ralston having testified that they had traveled a good deal on appellant's road prior to the 13th day of June, 1893, and that they had observed the manner of appellant's conductors and brakemen in the matter of their conduct towards lady passengers with baggage and children getting off appellant's trains, plaintiff's attorney asked each of said witnesses this question: `What was your observance as to their [conductors'] custom with reference to assisting ladies traveling on their trains with baggage, and incumbered, as this lady was, with basket, valise, and children?' Defendant's attorney objected to the testimony sought to be elicited from each witness, because (1) it was irrelevant and immaterial; (2) it called for the opinion of the witness in respect to the treatment of lady passengers similarly situated; (3) it had not been shown that the witnesses were sufficiently...