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

• Decision Date: 04 November 1911
• Citation: 140 S.W. 483
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GRESHAM.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

140 S.W. 483

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GRESHAM.^†

Court of Civil Appeals of Texas. Dallas.

Rehearing Denied. November 4, 1911.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by Lucile Gresham, by next friend, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins, D. Upthegrove, Scott, Sanford & Ross, and D. C. Woods, for appellant. Frazier & Shurtleff, for appellee.

BOOKHOUT, J.

This was a suit brought in the district court of Hill county by J. R. Bragg, acting as next friend for Lucile Gresham, against the St. Louis Southwestern Railway Company of Texas, appellant herein. The purpose of the suit was to recover damages on account of alleged injuries received by said Lucile Gresham while disembarking from defendant's passenger train at Hillsboro on the 11th day of July, 1910.

Plaintiff alleged in her petition that she boarded the train at Frost, in Navarro county, for Hillsboro, in Hill county; that she remained seated in the car until the train arrived at her destination; that she then, under the direction of the agent, proceeded to the car platform for the purpose of leaving the train; that when she arrived at the platform and started to descend the steps leading therefrom she found them wet and slippery, a large quantity of mud and water having accumulated thereon; and that on account of said condition of the steps she slipped and fell, striking her back against the steps, and sustaining severe and permanent injuries. The amount sued for was $25,000. Negligence was alleged on defendant's part in permitting its car steps to become wet and slippery and muddy, and in failing to have said steps equipped in such manner as to be reasonably safe for passengers in alighting from the train. Several other allegations of negligence were made in the petition, but, as they were not supported by the evidence or given in charge to the jury, their consideration is not necessary to this appeal. The defendant answered by general demurrer, general denial, special exceptions, and the plea of contributory negligence. The cause coming on for trial, a verdict was returned by the jury in plaintiff's favor for the sum of $6,000, upon which, with 6 per cent. interest, judgment was rendered on September 17, 1910. Defendant duly filed its motion for new trial and amended motion, which latter was by the court overruled and notice of appeal given. Appeal bond was duly filed and assignment of errors, and the cause is now presented in this court for review and judgment.

Appellant's first assignment of error reads: "The verdict of the jury is contrary to the law and the evidence in this: That the undisputed evidence showed that defendant had used due care to keep said steps free from mud or slippery substance, and the undisputed evidence further showed that defendant had used due care in equipping said steps, so as to be reasonably safe for passengers in alighting from said train, and that said steps were equipped in the same manner as all steps on similar lines of railroad." Appellant requested a charge instructing a verdict in its favor, which was refused. In its motion for new trial, it complained of the verdict as being contrary to the law and evidence.

The court charged the jury that:

(1) "It was the duty of the defendant's agents, servants, and employés to use that high degree of care to keep the steps provided for passengers to alight from its coaches in a reasonably safe condition to so alight as would be exercised by very prudent persons under the same circumstances, and a failure to use such care would be negligence."

(2) "If you believe from a preponderance of the evidence that the plaintiff, while alighting from defendant's train, and while in the exercise of ordinary care for her own safety, slipped and fell upon the steps provided for passengers to alight from defendant's coach, and was injured as alleged in plaintiff's petition, and that the defendants, its agents, servants, or employés had permitted said steps to become slippery and muddy, and that the said defendant, its agents, servants, or employés were guilty of negligence, as the term `negligence' is hereinbefore defined to you, in allowing said steps to become slippery and muddy, if they did do so, or if the defendant, its agents, servants, or employés failed to have said steps equipped in such manner as would be reasonably safe for passengers in alighting from said train while said steps were wet and muddy, and you further believe from a preponderance of the evidence that such failure, if any, was negligence, as the term `negligence' is hereinbefore defined, and that such negligence, if any, was the direct and proximate cause of the plaintiff's injury, if she was injured, you will find for the plaintiff. All the other allegations of negligence in plaintiff's petition, except those submitted to you in this, the second paragraph of this charge, are hereby expressly withdrawn from your consideration."

The plaintiff, Lucile Gresham, testified as follows: "When I arrived at Hillsboro, the porter, I suppose it was, told me where to get off, and I went with the rest of the passengers towards the door indicated. When I got out on the platform steps, it had rained after we left Brandon, and the steps were wet and muddy from dirt on them, and my foot slipped, and I fell, and my back struck the step, and I fell to the ground, and Mr. Beck and Mr. Gibson, the conductor, picked me up. The lower part of my spine struck the step, and I was unconscious for a few minutes. The first thing I knew Mr. Beck and Mr. Gibson were holding me up. I fell because the steps were wet and muddy. I have seen vestibule cars where the steps were inclosed by doors; those steps were just plain board steps, and were open, and did not have any rubber, or I wouldn't have fallen. There was nothing on the steps to keep me from falling, and there was no one assisting me off." On cross-examination, she testified: "I recall that as I was getting on the train the ground was dry, and it did not rain on the train until it was between the last station and Hillsboro. Hillsboro was the first stop after it rained. There was no passengers got on or off the train anywhere after the rain until the train stopped at Hillsboro. The step was slick and muddy with dirt that was on the step. I guess that dirt come from people's shoes that had been getting on and off the train that day; anyway, there was dirt on the steps. There is a rod leading from the platform, or about two or three feet above the platform on the left, on down to the bottom step just the right height for one to hold to, if they wished to do so; and there was such a rod on that train. I don't think that I had hold of this iron rod on the...