Texas Midland R. R. v. Cummins

• Decision Date: 05 April 1913
• Citation: Texas Midland R. R. v. Cummins, 156 S.W. 542 (Tex. App. 1913)
• Parties: TEXAS MIDLAND R. R. v. CUMMINS.
• Court: Texas Court of Appeals

156 S.W. 542

TEXAS MIDLAND R. R. v. CUMMINS.

Court of Civil Appeals of Texas. Dallas.

April 5, 1913.

Rehearing denied May 3, 1913.

Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.

Action by C. B. Cummins against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry C. Coke, of Dallas, and Dasheill, Crumbaugh & Coon, of Terrell, for appellant. Lee R. Stroud, of Kaufman, and Wynne & Wynne, of Wills Point, for appellee.

TALBOT, J.

C. B. Cummins, the appellee, sued the appellant, Texas Midland Railroad, for damages in the sum of $24,500, and alleged that on February 9, 1911, about 5 o'clock a. m., he bought a ticket from defendant's agent at Paris, Tex., to Jacksonville, Tex., by way of Kaufman, Tex; that he boarded defendant's train and became a passenger, but before the train left he went out of said train for the purpose of getting a grip he had left in defendant's depot; that he got down the car steps safely, but when he started for the depot after the grip, the depot grounds being very dark, his foot, while elevated in stepping, struck on top of a long plank something like a two by eight, which seemed to him to be set up on edge as if for a curb; that this plank caused him to stumble; that the edge of the plank was or seemed to him to be rounded, that the dirt or gravel or filling of the platform on the inside of the plank or curb was gone, so that there was nothing for his toes to rest on; that this left him with all his weight resting on one foot on the top of the edge of the plank which was several inches high on the outside next to the cars, so that he had to fall forward on the platform or backward off of it; that in struggling to balance himself to avoid falling either way he fell backwards off the platform with his whole weight on the foot which had caught on said plank; that he was thereby caused to fall very hard with his head and shoulders under the edge of the car; that he was a large man, and, all his weight being thrown on one foot and leg, he received a great injury, and his ankle, leg, and foot were strained and sprained, his knee was injured, his hip strained and bruised; that he had thereby been made a cripple for life; that, although assisted by others who came to his rescue, his foot and ankle became rapidly worse; that he had to stop off at Kaufman and call in a physician; that he suffered great pain and anguish; that he always followed callings that required much walking and getting about, and that his injuries had disabled him from doing so in the future; that when injured he was a salesman for an Automatic Jack Company, and was earning $25 per day net; that he would and could have continued to earn said sum but for his injuries. Plaintiff alleged that defendant was negligent in allowing said plank to be where it was; that said plank was too close to the cars; that its top edge was round and worn; that there was no filling either on the inside or outside of said plank; that the depot grounds were dark and not lighted. Defendant answered by general and special exceptions, general denial, and specially plead that its depot grounds were sufficiently lighted, that its platform was of brick, with smooth, hard surface; that the platform of cinders was not put down until 10 days after the accident, and further that plaintiff, while bothered and worried about his grip, which he had left in the depot, hurriedly left the train, going very fast; that it was raining, the steps slippery from the rain, and as plaintiff came down said steps his foot slipped on one of said steps, and he fell and sustained his injuries; that said injuries to plaintiff were the result of his contributory negligence in hurriedly leaving the car as aforesaid. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment for plaintiff in the sum of $2,500, and the defendant appealed.

Appellant's first and second assignments of error are grouped and complain of the court's action in overruling its applications to continue the case for the term or postpone the trial thereof to a latter day of the term at which it was...