Wells Fargo & Co. v. Benjamin

• Decision Date: 11 February 1914
• Citation: 165 S.W. 120
• Parties: WELLS FARGO & CO. v. BENJAMIN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

165 S.W. 120

WELLS FARGO & CO. v. BENJAMIN.^†

Court of Civil Appeals of Texas. Texarkana.

February 11, 1914.

Rehearing Denied March 19, 1914.

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

Action by W. S. Benjamin against Wells Fargo & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Young & Stinchcomb, of Longview, Beard & Davidson, of Marshall, and Baker, Botts, Parker & Garwood, of Houston, for appellant. S. P. Jones, of Marshall, for appellee.

HODGES, J.

W. S. Benjamin, the appellee, sued and recovered a judgment against the appellant for the sum of $20,000 for personal injuries received on the 24th of October, 1911. The material facts proved upon the trial are substantially as follows: On the date above mentioned the appellee was stopping at a hotel in the city of Marshall, Tex., and was expecting to leave that place within a short time for some point in California or Mexico. He was a saw filer by trade, and was going to one or the other of those places with the expectation of finding employment. Soon after his arrival in Marshall, he went from his hotel to the ticket office of the Texas & Pacific Railway Company, located at its passenger depot, for the purpose of making some inquiries about rates. Upon arriving at the ticket office, he found it crowded, and concluded to wait till later in the day. He then went to a mail box, posted some letters, and started back to his hotel, walking east along the depot platform. The track of the Texas & Pacific Railway Company at that point runs east and west, and the depot platform was about 36 feet wide and lay on the south side of the railway tracks. South of the platform and near its east end was located the office of the appellant. Next to this office on the west was an unoccupied space, then came the baggageroom and the waiting rooms for white and colored passengers. Next to the platform, and between portions of those two waiting rooms, was the ticket office, and at its northwest corner was located the mail box, where the appellee posted his letters. The doors of these various rooms opened on to the depot platform. The Texas & Pacific passenger train had backed into the station with its rear end pointing east, and about opposite the entrance to the baggageroom. The express car was some distance farther west. As the appellee was walking east along the platform toward his hotel, a truck belonging to the appellant, loaded with boxes and express packages, was being pulled by one of its employés out of the office and west toward the express car. Just as the truck passed the appellee, a box fell off and struck the appellee on the side of the head, knocking him down and rendering him unconscious. Appellee testified that he remembered nothing after posting his letters till he awoke some hours later and found himself in a hospital, to which he had been carried immediately after the accident. Most of the witnesses testified that the appellee was between the truck and the railway track at the time he was injured, and some of them say that he fell over on the track. One witness, however, says that appellee was on the south side of the truck, between it and the waiting room. The depot platform was at the time thronged with the usual crowd to be found there at train time.

The petition charged negligence in loading the truck and in the manner in which it was handled at the time. The court submitted negligence in both of these respects as grounds for recovery. The testimony showed that the boxes and packages on the truck after it was loaded extended from six to ten feet above the ground. No question is here made of the sufficiency of the evidence to support a finding that the truck was negligently loaded, but in the first three assignments of error appellant contends that the evidence was not sufficient to warrant the submission of the issue of negligence in the manner of handling the truck.

These assignments are based upon the refusal of the court to give a special charge instructing the jury that there was no evidence that the truck was negligently handled, and upon the action of the court in submitting that issue in the main charge. It was shown that the platform was smooth and in good condition; that on this occasion the truck was handled by one man pulling it along; and that it did not start out of the express office until after the arrival of the train. Some of the witnesses stated that, in going out of the office onto the platform, the truck was pulled north, and then turned west toward the express car; that just as it made the turn the box fell off on the north side and struck the appellee. It is true there is no direct evidence that the truck was being moved rapidly, or that it was jerked in such a manner as to cause the box to fall, but the fact that the box fell just as the turn was made is a circumstance which should not be ignored. The jury had a right to conclude that with a load of that character —boxes and packages piled high above the bed—being carried through a crowd of people whose attention was diverted by the usual excitement attending the arrival of trains, an additional attendant should have been provided to accompany the truck for the purpose of holding the load in place and preventing any of it from falling off while being thus transported, and to notify people of any danger that might be present. To pile boxes to a height which the evidence shows was done in this instance, and pull them through such an assemblage of people at such a time, without taking such precaution, might well be regarded as the omission of an important duty due to the public on such occasion. The evidence shows that on several other occasions, with similar loads, boxes or packages had fallen from the top of the truck. That was sufficient to put the employés of the appellant upon notice that such an accident might again occur. We think there was sufficient evidence to justify submitting the issues.

The next group of assigned errors complain of the refusal of the court to give special charges on the issue of contributory negligence. The appellant pleaded that the appellee was guilty of contributory negligence in walking or standing near the truck. It also pleaded that there was a safe way for the appellee to use upon that occasion, and that in passing the truck he was guilty of negligence in choosing an unsafe way and in walking or standing by the truck. The first special charge upon this issue to which our attention is called is as follows: "You are instructed that if you find from the evidence that the plaintiff was walking or standing by the moving truck at the time he was struck, and that a person of ordinary care, under the same circumstances, would not have walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it." Other charges refused present different phases of the same issue. The court gave the following as a part of his general charge on the subject of contributory negligence, to which no objection has been presented: "Contributory negligence, in its legal signification, is such an act or omission on the part of the plaintiff amounting to a want of ordinary care and prudence as concurring or co-operating with some negligence on the part of the defendant as the proximate cause or occasion of the injury complained of." "If you should fail to find that such injury was inflicted upon plaintiff by reason of the negligence of the defendant, it will be your duty to return a verdict for the defendant; or if you should find that the injury was inflicted on plaintiff by reason of defendant's negligence, and you should further find that the plaintiff himself was guilty of contributory negligence, as that term has been heretofore explained to you, then and in that event it will be your duty to find a verdict for the defendant. It was the duty of the plaintiff to exercise ordinary care in standing or walking upon the platform and the premises at the time and place of the accident to avoid injury to himself, and for his own protection, and, if the plaintiff failed to exercise ordinary care for his own safety at the time and place and under the circumstances of this case, then you will find for the defendant. In this connection, you are further instructed that the plaintiff would not be charged with the duty of anticipating and avoiding any negligence on the part of the defendant, but that it was his duty to so conduct himself and care for himself as to avoid any injury that he may have known, or by the exercise of ordinary care should have known, to exist by reason of the negligence of the defendant, if any, and also to avoid any injury that might result to him in the ordinary operation of its business." It is contended that this charge was not sufficient; that appellant had the right to have the specific facts relied on as constituting contributory negligence grouped and presented to the jury as expressed in the special charge quoted. In support of this contention we are referred to the M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058, and other well-known cases in which that principle is announced.

The important question to be first considered is: Does the evidence adduced upon the trial raise the issue of contributory negligence? Contributory negligence, like any other character of negligence, cannot be presumed; it must be proved. Before the court should submit such an issue, there must be sufficient evidence to support a verdict founded upon a finding that the appellee was guilty of negligence contributing to his own injury in the manner charged. Just what distance Benjamin was from the truck at the time the box fell is not shown, but it is certain that he was standing or walking near enough to be struck by the box as it fell. According to his testimony, he remembers...