Williams v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 23 December 1903
• Citation: 78 S.W. 45
• Parties: WILLIAMS v. GALVESTON, H. & S. A. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 45

WILLIAMS v. GALVESTON, H. & S. A. RY. CO.^*

Court of Civil Appeals of Texas.

December 23, 1903.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by John Williams against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Burgess, Hopkins & Rainbolt, Chas. W. Ogden, and W. H. Lipscomb, for appellant. Newton & Ward and Baker, Botts, Baker & Lovett, for appellee.

NEILL, J.

Suit by appellant against appellee to recover damages for personal injuries occasioned by the alleged negligence of the latter. The railroad company pleaded not guilty and contributory negligence. This appeal is from a judgment in its favor.

The evidence is amply sufficient to show that appellee was not guilty of the negligence charged, and that appellant's injuries were caused by contributory negligence on his part. As all the assignments of error except one, which complains of the sufficiency of the evidence to support the verdict, are directed against the court's charge, we will, after stating the acts of negligence alleged by appellant in his petition and the facts relied on to sustain such allegation, copy all the charge except the part giving the rule for the measure of damages, so that our rulings upon the assignments may be fully understood.

After alleging that he was a passenger on one of appellee's trains, plaintiff avers in his petition that the defendant negligently caused or permitted its line of railway upon which said passenger train was being operated to be obstructed by a freight train, by reason of which the passenger train was negligently stopped by defendant upon the main track of its railway, and while standing on the track defendant's agents and employés negligently permitted and caused a freight train to be driven along the main track in the rear of and towards the passenger train at such speed and in such close proximity as to make it appear to plaintiff that there was great and imminent danger of a collision with said train; that plaintiff, fearing there would be a collision, endeavored to get off the passenger train for the purpose of avoiding the danger of a collision, and for this purpose left his seat and went upon the platform of the car for the purpose of alighting from the train; that when he reached the platform, and was about to alight therefrom, the train was negligently, carelessly, and suddenly started by the agents and employés of defendant with so violent a jerk and jar as to throw him with great force and violence from the platform to the ground, which he struck with great force, causing the infliction of serious, painful, and permanent injuries.

The evidence shows that plaintiff was a passenger on one of defendant's passenger trains en route from Gonzales to the city of San Antonio; that a freight train was running towards the last-named city, in its rear, and another freight train in front of the passenger train; that when the passenger train arrived at a point east of the defendant's yards in San Antonio, near where the Missouri, Kansas & Texas road joins that of defendant, the freight train in front was stopped by reason of a drawhead having been pulled out of a car next the engine; that the passenger train came up to the freight train, and stopped until the latter could get out of the way. While the passenger train was thus waiting for the freight train to get ahead, after remaining stationary for several minutes, the rear freight train came up. As soon as the passenger train stopped a flagman was sent back from it to signal the approach ing freight train, and its engineer and crew testified that the flagman gave the signals, and that they were answered by the engineer of the freight train, and that it was under full control, and at no time was there any danger of its collision with the passenger train. However, when the passenger train stopped and the freight train was seen to approach from the rear, some uneasiness of a collision was manifested by the passengers, and a number of them got off. The plaintiff left his seat and went to the platform of the car for the purpose of leaving the train, but whether he did so before or after the passenger train was brought to a stop the evidence is conflicting. One of his witnesses testified that he jumped off the train while it was in motion, and before it had stopped, but there was testimony from which it could be found that, after the train stopped, and he was in the act of alighting, it was put in motion, and he fell to the ground and was injured.

As to whether the evidence of these facts showed negligence on the part of defendant or contributory negligence on the part of plaintiff was a question of fact for the jury to determine under the charge given them by the court. Such charge is as follows:

"If you find from the testimony that the defendant's passenger train upon which this plaintiff was a passenger was stopped upon the main track of defendant's line of railway by reason of a freight train obstructing said track, and that while said passenger train was so stopped upon said main track another freight train approached said passenger train from the rear, in such close proximity thereto as to make it reasonably appear to this plaintiff that there was imminent danger of there being a collision between said passenger train and said approaching freight train; and you further find that by reason of the manner in which said trains were operated this plaintiff had, under all the circumstances, reasonable grounds for believing, and did actually believe, that there was great danger of a collision of said trains, and that if he remained upon said passenger train he was in imminent danger of losing his life or receiving great bodily injury, and, so believing, that this plaintiff left his seat and went upon the platform of defendant's passenger coach, and that while plaintiff was attempting to alight from said train the passenger train was suddenly started, and that this plaintiff was thereby thrown or fell to the ground and injured as alleged in his petition; and you further find that in operating its trains in such manner as to make it reasonably appear to plaintiff that there was imminent danger of a collision between the passenger train on which plaintiff was riding and the approaching freight train, if you find they were so operated, and in allowing said passenger train to move suddenly forward as plaintiff attempted to alight from said train, if you find it was so moved, defendant company was guilty of negligence, and that such negligence, if any, was the proximate cause of plaintiff's injury, if any; and you further find that plaintiff was not guilty of any negligence that either caused or contributed to his injury, if any — then you will find for plaintiff. By `reasonable grounds,' as used in this charge, is meant such a condition of apparent danger as would ordinarily cause an ordinarily prudent and considerate person to become apprehensive of danger to...