St. Louis Southwestern Ry. Co. of Texas v. Highnote

• Decision Date: 08 May 1905
• Citation: 86 S.W. 923
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HIGHNOTE.
• Court: Texas Supreme Court

86 S.W. 923

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HIGHNOTE.

Supreme Court of Texas.

May 8, 1905.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by H. P. Highnote against the St. Louis Southwestern Railway Company of Texas. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (84 S. W. 365), and defendant brings error. Reversed.

See, also, 74 S. W. 920.

E. B. Perkins and Frost & Neblett, for plaintiff in error. Richard Mays, for defendant in error.

BROWN, J.

We adopt the following statement from the opinion of the Court of Civil Appeals:

"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 Schoolhouse 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."

Plaintiff in error complains of the following paragraphs of the charge given by the court to the jury:

"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 the plaintiff what reasonably appeared to the conductor a chance to get off in safety in the use of ordinary care on plaintiff's part." "If the speed of the train was too fast for a person of ordinary prudence to undertake to alight, and if plaintiff did not know nor believe it was going too fast for him to safely alight, his want of knowledge or belief did not excuse his act unless he used ordinary care in judging and determining, and did in fact reasonably believe that the train had been slowed up for him to get off, and that its speed was such that he could safely do so."

The effect of the foregoing charges was to inform the jury that the plaintiff had the right to choose the time and place of his departure from the train without the knowledge or concurrence of the conductor. By the terms of these charges the conductor was eliminated altogether from the transaction, and the railroad company was made liable for the mistake of the plaintiff, provided only that he used reasonable care in choosing the place, the manner of leaving the train, and in determining as to the speed at which the train was running. In other words, under the two charges the plaintiff could recover if he used ordinary care in determining whether or not he had arrived at the proper place for disembarking, and if he used due care in determining that the train was running at a safe speed for him to alight, although the conductor might have thought (and he testified that he did) that the speed of the train was too great for safety in leaving it. In adopting that theory of the case the honorable district court committed error. The plaintiff himself swore that the conductor was not present when he jumped from the...