Texas Midland R. R. v. Ritchey

• Decision Date: 29 February 1908
• Citation: 108 S.W. 732
• Parties: TEXAS MIDLAND R. R. v. RITCHEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

108 S.W. 732

TEXAS MIDLAND R. R. v. RITCHEY.^*

Court of Civil Appeals of Texas.

February 29, 1908.

Rehearing Denied March 21, 1908.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by A. B. Ritchey against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was brought by A. B. Ritchey to recover damages for personal injuries alleged to have been received by his wife, Edna Ritchey, against the Texas Midland Railroad. Plaintiff alleges that on the 16th day of June, 1906, he and his wife and two children were passengers on one of the defendant's passenger trains, traveling from Greenville, Tex., to Cash, Tex., and that when said train reached the town of Cash, and stopped for the station, he and his wife immediately arose from their seats and went out on the platform preparatory to alighting from said train. Plaintiff alleges that he alighted therefrom with one child, and while his wife was coming down the steps, intending also to alight, and while she was on the steps and in the act of alighting, the agents and servants of the defendant in charge of said train negligently and carelessly started said train, causing her to fall or jump from the steps of said car, and that in doing so she received serious and permanent injuries for which plaintiff sues. Plaintiff further alleges that it was the duty of the operatives in charge of said train to have stopped said train at said station of Cash for a reasonably sufficient length of time to allow plaintiff's wife to alight therefrom with reasonable safety, but that they failed to do so, and negligently and carelessly started said train before she had alighted and while she was in the act of so doing, causing her to jump from the car steps to the ground, resulting in the injuries to his wife for which he sues. The defendant answers by a general demurrer, general denial, and a plea of contributory negligence, charging that if the plaintiff's wife was injured at the time and place alleged then such injury was caused or contributed to by the negligence of the plaintiff and his wife, in that they delayed an unreasonable time in alighting from defendant's train after the same had arrived at the station, and that plaintiff and his wife negligently attempted to alight from the rear platform of the car, either while the same was in motion or as the train was about to start after remaining at the station a sufficient length of time to permit all passengers, including plaintiff and his wife, to safely alight, and that they did so negligently attempt to alight from said rear platform of the car without the knowledge of or notice to defendant or its employés, who had placed a stool at the front steps of the car to assist passengers to alight in safety, and that plaintiff and his wife in and while attempting to alight from said rear platform of the car failed to use the care and caution that an ordinarily prudent person would and should have used under the circumstances, and that plaintiff's wife did, as alleged in plaintiff's petition, jump from the step of the car, and that her acts in so doing were negligent, and that all of such negligence contributed to her injury, if any. The trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,500. An appeal was duly perfected by defendant.

Ogden, Brooks & Napier and A. H. Dashiell, for appellant. J. S. Sherrill and B. Q. Evans, for appellee.

BOOKHOUT, J.

The first assignment of error assails the third paragraph of the court's charge, as follows: "If you find from the evidence that on the 16th day of June, 1906, that plaintiff purchased one ticket each for himself and wife, at Greenville, Texas, over the defendant's road to Cash, Texas, and boarded one of defendant's passenger trains at Greenville, Texas, bound for Cash, and they became and were passengers on said train, and if you further find from the evidence that when the train on which plaintiff and his wife were riding reached Cash they used reasonable diligence to get off of said train, and if you find that said train did not stop at Cash long enough for plaintiff's wife to have alighted therefrom in safety, and if you further find that while she was endeavoring to alight from said train, if she was, and when she had reached the second step, if she did, you further find the train was started suddenly and unexpectedly, and if by reason thereof you find that she was caused to jump from said step to the ground, and you find that she was thereby injured in any or all of the parts of her body and person as set forth in plaintiff's petition, and if you further find that the agents and servants of defendant in starting said train, if it was, were guilty of negligence as that term is defined in the first paragraph of this charge, and that such negligence, if any, was the proximate cause of plaintiff's wife's injuries, if any, you will then find for the plaintiff, but unless you so believe you will find for the defendant." The proposition presented is that the court erred in submitting to the jury the question as to whether the train started suddenly and unexpectedly or not, and that plaintiff's wife was caused to lose her balance and jump from the steps to the ground, as there was no evidence to support said issue.

The material issues were whether the train stopped at Cash a reasonable length of time for plaintiff's wife to alight, and whether she was guilty of negligence in failing to use reasonable diligence to alight, and in alighting at the time and place she did. This paragraph of the charge submitted the issue as to whether the appellant was guilty of negligence in failing to stop the train a reasonable length of time for plaintiff's wife to alight in safety; and the jury was instructed, in effect, that if they found the train did not stop a reasonable length of time for her to alight, and they further found that when she was endeavoring to alight the train "started suddenly and unexpectedly," etc., then they were authorized to find for plaintiff. The particular complaint of this charge is in submitting the issue whether the train started suddenly and unexpectedly. The testimony was to the effect that the porter of the train announced the station Cash, and as soon as the train came to a standstill appellee and his wife, who were sitting in the rear of the coach, got up and started out, the appellee carrying a child. The appellee got off the train safely, and deposited the child upon the platform. The appellee's wife was standing on the platform of the car with a child in her arms; appellee took the child from his wife and set it down while appellee's wife walked down to the second step, when the train moved forward and jerked her backwards. She caught hold of the rail and jumped to keep from falling, causing her to alight on her left foot, and resulting in the injuries of which she complains. She testified that the train started with a jerk. If the train started with a jerk, and while she was on the second step attempting to alight, it must have started suddenly and unexpectedly to her, and the court was authorized to submit the issue as to whether it started suddenly and unexpectedly. Nor was there any necessity, as contended in the second proposition under this assignment, for a charge defining the words "reasonable diligence," as used in the paragraph quoted. The words have no such technical meaning as called for a definition thereof, their meaning, we think, being well understood by the average juryman. Besides, the appellant, if it desired the words defined,...