Texas & P Ry. Co. v. Overall

• Decision Date: 13 November 1891
• Citation: 18 S.W. 142
• Parties: TEXAS & P RY. CO. v. OVERALL.
• Court: Texas Supreme Court

18 S.W. 142

TEXAS & P RY. CO. v. OVERALL.

Supreme Court of Texas.

November 13, 1891.

Appeal from district court, Marion county; E. W. TERHUNE, Judge.

Action by E. E. Overall against the Texas & Pacific Railway Company to recover for personal injuries. Judgment for plaintiff for $200. Defendant appeals. Reversed.

F. H. Prendergast, for appellant. W. F. Armistead and J. A. Armistead, for appellee.

GAINES, J.

The appellee was a passenger on the train of the appellant railroad company. The train having stopped at a station, and the door of the car in which he had been riding being opened and fastened, he took position on the platform with his hand resting upon the jamb upon which the door was swung, and with his little finger inside the cleat against which the door fitted when closed. As he testified, while standing in that position, a brakeman entered the car, and suddenly closed the door. The end of his finger was caught between the door and cleat, and was injured. The brakeman denied that he shut the door, and testified that it was closed by a woman, who did it in order to enter the water-closet. The appellee also testified "the man who shut the door could see me, and see where my hand was when he shut the door." The appellee having obtained a verdict and judgment upon the facts as stated, the appellant made a motion for a new trial, which was overruled. One ground of the motion was that the plaintiff was negligent, and his negligence contributed to the injury; another was that the evidence did not show negligence on part of the company. These questions are now presented to us by proper assignments.

It seems to us that the act of the defendant in placing his hand in such a position upon the jamb of the door that it would certainly be injured by any one closing the door was an act of negligence. The door, though securely fastened, was capable of being suddenly closed, and was likely to be closed by either passengers or employes of the company, and especially by persons who desired to enter the water-closet of the car.

But, should it be conceded that the plaintiff was not negligent, the verdict is still without sufficient evidence to support it. The evidence authorized the jury to find that the brakeman was the person who closed the door; but there was nothing to show that in doing so he was guilty of negligence. If in fact he had seen the position of the plaintiff's finger, and had then closed the door regardless of the consequences, even the...