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

• Court: Texas Court of Appeals
• Writing for the Court: Hodges
• Citation: Weisner v. Missouri, K. & T. Ry. Co. of Texas, 164 S.W. 405 (Tex. App. 1914)
• Decision Date: 22 January 1914
• Parties: WEISNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

164 S.W. 405

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

Court of Civil Appeals of Texas. Texarkana.

January 22, 1914.

Rehearing Denied February 5, 1914.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by Tom Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiffs appeal. Affirmed.

Y. D. Harrison and Beard & Davidson, both of Marshall, for appellants. Schluter & Singleton, of Jefferson, and Alex S. Coke, of Dallas, for appellee.

HODGES, J.

The appellants are the husband and children of Roxana Weisner, who died in December, 1912. They instituted this suit against the Missouri, Kansas & Texas Railway Company of Texas, the appellee, for the recovery of damages resulting from her death, claiming that this was caused by the negligence of the railway company. It is alleged in their original petition that in December, 1912, T. W. Weisner, the husband, and the deceased were passengers on the appellee's railway, traveling from Pittsburg in Upshur county to Leigh in Harrison county, Tex. They arrived at the latter station at about 4:30 o'clock in the morning, and before it was daylight. When the train stopped at the station Weisner and wife walked to the front platform for the purpose of getting off. Just as they reached the platform it is claimed that the train was suddenly and violently moved, and that this caused them to fall over against the railing and thence to the ground. It is further alleged that by reason of this fall Roxana Weisner received injuries from which she died shortly thereafter. The railway company answered by a general demurrer and a general denial only. From a verdict in its favor Weisner and his children have appealed.

Weisner testified that he and his wife boarded the train at Pittsburg and were riding in the coach set apart to colored passengers; that when the train arrived at Leigh, their destination, they arose and started to the front end of the car for the purpose of getting off; that just as they reached the platform and turned to go down the steps the engine jerked the train and threw them both against the iron railing, and thence to the ground on the outside. He says that he recovered his balance and tried to get his wife to her feet, but failed; that he called to his assistance a deaf and dumb boy, who was standing near them, and together they carried her into the waiting room, and a colored physician was later summoned to attend her. He further testified that she never spoke after the fall, and died a short time thereafter. Weisner was the only witness who testified that this accident occurred on that occasion. He was corroborated in part by two others as to the train having moved after it stopped at Leigh and before its final departure, but he was contradicted by other witnesses as to any fall having occurred, or that the train moved. The train porter testified that he helped Weisner carry his wife out of the coach and assisted them in alighting; that the latter was sick and had to be supported, and that they both alighted without any difficulty or unusual occurrence. Two other witnesses, the conductor and a mail agent, testified that they remembered the occasion; that they were in positions to see the parties as they got off the train; and both stated that no fall occurred, and that the train did not move after it stopped at Leigh until its final departure. There was considerable testimony introduced by the railway company tending to show that Roxana Weisner had been ill during her stay at Pittsburg, that she had been under the care of a physician, and was seriously sick at the time she left. It is contended by the appellee that her death was due to that illness, and not to any accident or injury received while alighting from the train. There was a sharp conflict between the testimony of Weisner and a number of other witnesses who testified concerning the indisposition of the deceased while at Pittsburg. He testified that his wife was in her usual good health; the others to the contrary.

The first and second assignments of error complain of the definitions given by the court of the terms "very high degree of care" and "negligence." The objections urged, however, we think are without merit. Among others the court gave the following charge: "It is the duty of a person while a passenger on a train of common carriers of passengers and traveling thereon and alighting therefrom, to exercise that degree of care and prudence that a very cautious and prudent person would exercise under the same or similar circumstances. "You are instructed that the defendant railway company was not an insurer of the safety of plaintiff's wife while a passenger on its...