Weisner v. Missouri, K. & T. Ry. Co. of Texas

• Court: Texas Supreme Court
• Writing for the Court: Montgomery
• Citation: Weisner v. Missouri, K. & T. Ry. Co. of Texas, 207 S.W. 904 (Tex. 1919)
• Decision Date: 15 January 1919
• Docket Number: (No. 33-2679.)
• Parties: WEISNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

207 S.W. 904

WEISNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

(No. 33-2679.)

Commission of Appeals of Texas, Section B.

January 15, 1919.

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

Action by Tom Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant was affirmed by the Court of Civil Appeals (164 S. W. 405), and plaintiffs bring error. Reversed and remanded for new trial.

Y. D. Harrison and Beard & Davidson, all of Marshall, for plaintiffs in error.

L. S. Schluter, of Jefferson, for defendant in error.

MONTGOMERY, P. J.

This suit was brought by Tom Weisner, the surviving husband, and the surviving children, of Roxanna Weisner, to recover of the Missouri, Kansas & Texas Railway Company of Texas damages alleged to have resulted by reason of the death of Roxanna Weisner. Plaintiffs allege that the death of Roxanna Weisner was caused by the negligence of the defendant company.

The opinion of the Court of Civil Appeals, 164 S. W. 405, contains a full statement of the pleadings and the evidence.

It appears that Roxanna Weisner was a passenger, and it was alleged by the plaintiffs that she was negligently injured by reason of a sudden and violent movement of the train as she was in the act of getting off the train at her destination. It is further alleged that said injuries resulted in her death. There was testimony, which if believed by the jury, was sufficient to authorize findings that the railway company was negligent as alleged in plaintiffs' petition, that such negligence was the cause of the injury of Roxanna Weisner, and that such injuries resulted in her death. On the other hand, the testimony offered by the railway company, if accepted, showed that there was no sudden movement of the train, that Roxanna Weisner was not injured while a passenger, and that her death was the result of disease.

It is not necessary to notice the pleadings further than to state that the petition was sufficient and that the defendant pleaded only a general denial.

In this state of case, the court, after stating the substance of the pleadings, charged the jury, among other things, as follows:

"The burden of proof is upon the plaintiffs to show by preponderance of the evidence their right to recover.

"In the course of these instructions, the terms `negligence,' `very high degree of care,' `ordinary care,' `proximate cause,' `proximate result,' will be made use of, and they are defined as follows."

Here follows the usual definition of each of the terms referred to and a correct statement of the duties of a carrier to a passenger. Following this, the charge of the court continues:

"It is the duty of a person while a passenger on the train of a common carrier of passengers, in traveling thereon or alighting therefrom, to exercise that degree of care that a very cautious and prudent person would exercise.

"You are instructed that the defendant railway company was not an insurer of the safety of plaintiff's wife while a passenger on its train, and it was her duty while traveling on the train, or in alighting therefrom, to use that degree of care to avoid injury to herself that a very cautious and prudent person would exercise under the same circumstances, and that a failure to use such care would be negligence on her part and, if such negligence on her part, if any, caused or contributed to cause any injury, she may have received, if any, then plaintiff cannot recover."

After the above charge, the court, by a proper charge, defines the duties of the railway company to a passenger and applies the same to the facts of the case, telling the jury in effect that if the railway company failed to use that high degree of care required of it, and if, as a result of such a failure, the plaintiff's wife was injured, then judgment should be for the plaintiff.

The Court of Civil Appeals very properly held that the charge above quoted, defining the duties of a passenger, was improper and ought not to have been given in this case, because it required of the passenger a higher degree of care than is authorized by law, and further held there was neither pleading nor evidence raising the issue in this case.

Notwithstanding this holding by the Court of Civil Appeals, the court affirmed the judgment of the lower court, denying the plaintiff any recovery on the ground that the giving of said charge was harmless error.

The only question which we have for determination is whether the giving of the charge referred to, under the facts of this case,...