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

• Decision Date: 26 November 1908
• Citation: 115 S.W. 640
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TITTLE.
• Court: Texas Court of Appeals

115 S.W. 640

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

Court of Civil Appeals of Texas.

November 26, 1908.

Rehearing Denied January 21, 1909.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

Action by W. A. Tittle against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed.

E. B. Perkins, Dan Upthegrove, and Glass, Estes & King, for appellant. R. T. Wilkinson and W. L. Tittle, for appellee.

LEVY, J.

By his suit appellee sought to recover damages for alleged injuries received by his wife while a passenger on the appellant's train, claimed to have been occasioned by the negligent failure of appellant's employés in charge of the train to furnish his wife with a seat to ride in, and to have a stepstool for her to step on in getting off the train at the station of her destination. The trial was before a jury, and in accordance with their verdict a judgment was rendered in favor of appellee.

We are of the opinion that the charge of the court as complained of in the eleventh assignment of error is subject to the contention of appellant; that a more onerous burden is imposed upon it than required by law. The charge reads: "It is the duty of the railroad company to provide means for its passengers to alight from its trains with reasonable safety to themselves, and a failure to do so is negligence on its part." The carrier is not absolutely liable and at all events for failure to provide safe means or conveniences for exit or alighting from the cars. The carrier's duty towards its passenger obviously extends to providing the passenger with reasonably safe means or conveniences for exit or alighting from the cars as against means that are not reasonably safe. This does not mean that the carrier is an insurer, but is liable for reasonable care only. Thompson on Negligence, § 2679. A duty is but the performance of some act. The rule applicable in the performance of the duty in this particular is that the carrier is charged with the obligation of exercising the same high degree of care which the law imposes upon it in other relations towards its passengers. Elliott on Railroads, § 1585; Railway Co. v. Dotson, 15 Tex. Civ. App. 73, 38 S. W. 642. And see cases of Railway Co. v. Sinclair, 36 Tex. Civ. App. 266, 81 S. W. 329; Railway Co. v. Lynch (Tex. Civ. App.) 55 S. W. 517. We think the case of Railway Co. v. Wortham, 73 Tex. 25, 10 S. W. 741, 3 L. R. A. 368, relied on by appellee, recognizes the rule that a carrier would not be liable for failure to provide reasonably safe means or conveniences to alight from the train if it "exercised that high degree of care which their duty to the appellee required"; but that it would be liable if it "had not exercised the degree of care required of them." The instruction complained of in this case declared that a failure on appellant's part to provide means for its passengers to alight with safety to themselves constitutes negligence per se, and because thereof it was error. It is contended by appellee that, if this paragraph was erroneous, the error was corrected when considered in connection with the first paragraph of the court's charge. It is true that in the first paragraph of the charge the court defined general negligence and ordinary care. But in submitting to the jury the particular facts authorizing a recovery for the failure to have a stepstool the "negligence" referred to was confined to the negligence as defined in the paragraph here complained of. For this it became wholly disconnected and in conflict with the first paragraph, and the instruction submitted to the jury would not be relieved from the objection urged.

Because this case must be reversed for the error discussed, and in view of another trial, we pass upon the other assignments, except where it may involve a question of the evidence.

In the absence of evidence that appellee's wife knew the stool was not there, the special charge No. 3 was properly refused. In the absence of a requested special charge, reversible error could not be predicated on the charge complained of in the ninth assignment. Any objection thereto can be obviated by properly describing the duty to be that high degree of care and prudence that would be used by a very cautious, prudent, and competent person under like circumstances to furnish a seat for appellee's wife. Railway v. Williams, 20 Tex. Civ. App. 587, 50 S. W. 732. We do not think the instruction as to the measure of...