Trinity & B. V. Ry. Co. v. McDonald

• Decision Date: 19 February 1919
• Docket Number: (No. 35-2683.)
• Citation: 208 S.W. 912
• Parties: TRINITY & B. V. RY. CO. v. McDONALD.
• Court: Texas Supreme Court

Page 912

208 S.W. 912

TRINITY & B. V. RY. CO. v. McDONALD.

(No. 35-2683.)

Commission of Appeals of Texas, Section B.

February 19, 1919.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by John W. McDonald against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff affirmed by Court of Civil Appeals (160 S. W. 984), and defendant brings error. Reversed, and judgment rendered for defendant.

N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Morrow & Morrow, of Hillsboro, for plaintiff in error.

Walter Collins, of Hillsboro, and B. Y. Cummings and V. L. Shurtleff, both of Waco, for defendant in error.

MONTGOMERY, P. J.

We take the following statement from the opinion of the Court of Civil Appeals which is reported in 160 S. W. 984:

"Appellee [McDonald] sued the railway company to recover damages for personal injuries received by him while a passenger on appellant's train. Plaintiff, in substance, alleged that while traveling as a passenger on appellant's train operated between Hillsboro and Osceola, Tex., he had occasion to go into one of the toilet rooms situated in said coach and maintained by appellant; when he raised up the top of said toilet, the wind rushed up through the opening of said toilet with great force and a piece of steel, or particle of [some] character of metal, struck him in the eye and imbedded itself in the ball of the eye, which caused the loss of said eye. Negligence was alleged in having a toilet with an opening through it, instead of one with the opening closed in such manner as to prevent such substances being blown through, and in failing to equip said toilet room with modern and approved appliances for closing said opening, etc. Appellant answered by a general denial. A trial resulted in a verdict and judgment for $2,000, from which this appeal is prosecuted."

The Court of Civil Appeals affirmed the judgment of the trial court.

The Trinity & Brazos Valley Railway Company applied for a writ of error to review the judgment of the Court of Civil Appeals, which was granted (170 S. W. xx).

The petition contains only one assignment of error, which is:

"The Court of Civil Appeals erroneously declared the substantive law of this case in holding that the evidence authorized the trial court to submit to the jury any question of negligence on the part of the appellant; it being apparent from the evidence that, as a matter of law, your petitioner was guilty of no negligence."

The evidence shows that the plaintiff, McDonald, was injured in the manner and to the extent alleged by him.

The toilet room of the car in which he was riding as a passenger was equipped with a stool with an opening through it, and was not provided with any means of closing the opening except by the lid or cover at the top of the stool. That part of the stool within the car is called by the witness the "hopper chute" or "bowl." The top is about 14 inches in diameter and tapers to 6¾ inches at the bottom. Below the hopper chute and beneath the car is what is called a "bonnet" extending from the floor of the car downward about 20 inches and being about 9 inches square. This bonnet is directly beneath the opening in the chute, and so makes a continuous opening. This bonnet is provided with two ventilators near the floor of the car, one at each end, contrived and intended to create a downward current of air through the chute and bonnet while the train is in motion.

The train at the time of plaintiff's injury was going north and consisted of engine and four coaches, and the toilet room in which plaintiff was injured was in the northeast corner of the rear car. The evidence showed that at the time of the injury the train was at a place where there was a sharp curve in the track.

Various witnesses for the railway company testified that coaches with toilet arrangements such as are described above were in use, and had been in use for many years, on practically all the railroads in the state. There was also testimony to the effect that most of the cars built in recent years were provided with toilets having a pan or bowls at the bottom of the stool, and facilities for flushing with water, so that by pushing a lever the pan is emptied and flushed and when the lever is released returns to its position. There was also evidence that some new cars were being constructed with the open toilet. The testimony, however, we think, shows that this more modern equipment was provided for sanitary purposes, and that there was no purpose of preventing accidents or injuries such as is shown in this case. The testimony, however, shows that, if the toilet had been equipped with a pan as described above, the injury would not have occurred.

There was testimony that the wheels of the engine and cars when in motion sometimes grind off small particles of steel from the rails, and that these particles partaking of the motion of the wheels fly off at a tangent, the distance being uncertain, but estimated at from 2 to 8 or 10 feet, the direction being in the opposite direction from that of the train, and that the grinding off of particles is more liable to occur on curves than straight track. There was a volume of evidence by the railway company by men experienced in the business to the effect that owing to the location of the toilet with reference to the wheels and rails, and to the steps and other parts of the car, it was in their opinion extremely improbable, if not impossible, that an accident of the character shown in this case could occur. The evidence of all the witnesses is that none of them ever heard of a similar or any other injury due to the use of an open toilet such as was in the car in which plaintiff was riding.

The particular testimony on which plaintiff relies as being sufficient to show that the railway company did or ought to have anticipated that some injury similar to the one suffered by plaintiff might occur by reason of the equipment was as follows:

E. A. Haver, a witness for defendant, on cross-examination, after having testified as to the construction of the car and the location of the toilet with reference to the steps and other parts of the car testified:

"That step I think would be the protection that would keep the small particles of steel thrown back here from going up that hole, and it helps a great deal. In the cars that I have helped to build the steps were built that way to protect the passengers from steel that might go up there, and I think it enters into it."

Again he said:

"It was not my opinion that the main reason that these steps were built in this manner was to protect this opening from these steel particles, only partly."

This witness, who was a car builder, testified further that in building the cars he did not construct the steps as they were built to prevent particles from entering the car through the toilet, but that he built them as instructed.

There was evidence by several witnesses that on some occasions they had observed that toilet paper would...