Stamp v. Eastern Ry. Co. of New Mexico
Decision Date | 10 November 1913 |
Citation | 161 S.W. 450 |
Parties | STAMP v. EASTERN RY. CO. OF NEW MEXICO. |
Court | Texas Court of Appeals |
Appeal from District Court, Potter County; J. N. Browning, Judge.
Action by Mrs. Annie Stamp against the Eastern Railway Company of New Mexico. From judgment for defendant, plaintiff appeals. Affirmed.
J. A. Stanford, of Waco, and Synnott & Underwood, of Amarillo, for appellant. Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, for appellee.
The appellant, Mrs. Annie Stamp, a feme sole, sued the Eastern Railway Company of New Mexico in the district court of Potter county, Tex., alleging in substance that she was a passenger upon appellee's line of railway, traveling from a point in New Mexico to a point in Texas, and while at a station of the appellee, and upon a part of the platform of said station intended for passengers, she fell from said platform at a point where it was about five feet in height from the ground, and that the railway company was guilty of negligence in failing to have the depot and platform properly lighted and in failing to have banisters or guard rails around the edge of the platform where she fell. The defendant railway company, among other things, pleaded the contributory negligence of the plaintiff in walking out upon the platform at a place where she was not required to go and in stepping off of the same without taking any precaution whatever for her own safety; defendant further specially answering that the injury to plaintiff occurred in what was then the territory of New Mexico, and that plaintiff at said time was in possession of a free pass, issued by it, with stipulations upon the back of same, agreed to and executed by her, whereby she released the appellee of all damages, whether caused by the defendant's negligence or otherwise, and agreed to assume all the risk of accident or damage to her person or baggage while in the use of said pass, and that plaintiff was at the time of her injury domiciled and residing in the territory of New Mexico, and that defendant had its domicile and line of railway in said territory, and that the rights and liabilities of the parties should be determined under the rules of law prevailing in the territory of New Mexico or in the United States courts, and that, under said rules prevailing in either jurisdiction, the said contract as to release from liability was valid and binding; the defendant further alleging that plaintiff was a mere licensee upon defendant's premises and the defendant owed her no other care than not to willfully and wantonly injure her. At the close of the testimony the district court instructed a verdict for the defendant railway company and entered judgment accordingly.
The evidence discloses that Mrs. Stamp, the appellant, was in the possession of the pass, through the solicitations of her son, who was a "pumper" and in the employment of the railway company at the station of Becker, where she was injured, and the following recitation appears on the reverse side of the pass, signed by her:
At the station where the injury occurred, the railroad track in front of the waiting room extended east and west and the depot was parallel thereto. The appellant, her son, and the latter's wife went to the depot in time to catch a train leaving for the east about 4:30 in the morning and walked into the waiting room at the east end of the depot, which was not lighted at the particular time, with a light only in the office of the agent or operator. Her son left the waiting room for the purpose of looking for the train, and Mrs. Stamp testified: That, after her son walked out, The son who accompanied Mrs. Stamp on this particular occasion testified in her behalf: "This platform extends somewhere about 30 feet from the east end of the depot."
The best we are able to ascertain from the testimony it seems that the platform at the east end of the depot was covered by a hood-shaped porch — a prolongation of the roof of the main building with arches and supporting pillars either at the edge or very close to the edge of the platform, where the accident and injury occurred.
We conclude that it was quite dark and for this purpose only, regarding her as a passenger under the law of this state, that the railroad company had not exercised the degree of care obligatory upon it under the circumstances. But we are inclined to think that this woman was guilty of contributory negligence. When she walked out of the door of the waiting room and turned at right angles and proceeded into the dark, along the platform of the appellee, the railway company, to the edge of the platform, precipitating herself off the platform to the ground, that inherently her act is indicative of a degree of carelessness and negligence as to preclude a recovery. We quote from the Supreme Court of Virginia: Reed v. Axtell, 84 Va. 231, 4 S. E. 587.
We also refer to the case of Gulf, Colorado & Santa Fé Railroad Co. v. Hodges, 24 S. W. 563, decided by the Court of Civil Appeals of the Second District. That court said: "It seems that the place where appellee fell from the platform was, at the time, enveloped in almost total darkness; that he [meaning the passenger] got off the train on the east side of the depot and immediately started in a northwest direction along the depot platform and walked off of it at a place where it was between four and five feet high." We also quote a part of the testimony quoted by the court in that case as follows: The court concludes as a matter of law that: "It seems...
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