Wisdom v. Chicago, R. I. & G. Ry. Co.

• Decision Date: 01 June 1921
• Docket Number: (No. 247-3445.)
• Parties: WISDOM v. CHICAGO, R. I. & G. RY. CO.
• Court: Texas Supreme Court

231 S.W. 344

WISDOM v. CHICAGO, R. I. & G. RY. CO.

(No. 247-3445.)

Commission of Appeals of Texas, Section A.

June 1, 1921.

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

Suit by Geneva Wisdom against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff was reversed, and judgment was rendered for defendant by the Court of Civil Appeals (216 S. W. 241), and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and case remanded to the district court for new trial.

R. E. Carswell, of Decatur, and Carden, Starling, Corden, Hemphill & Wallace, of Dallas, for plaintiff in error.

Lassiter & Harrison, of Fort Worth, and McMurray & Gettys, of Decatur, for defendant in error.

GALLAGHER, J.

Plaintiff in error, Miss Geneva Wisdom, brought this suit against defendant in error, Chicago, Rock Island & Gulf Railway Company, to recover damages for injuries alleged to have been sustained by her in alighting from one of said company's trains at Paradise, Tex., which injuries are alleged to have resulted from the negligence of said company.

Miss Wisdom was a passenger on one of the company's trains. On the arrival of the train at Paradise she emerged from the coach with a grip in her hands, which, on starting to descend from the platform of the coach to the platform of the station, she took in both hands and held in front of her. This grip contained four or five books, a number of dresses, and two pairs of shoes. Estimates of its size and weight varied, but there was testimony that it was about two feet long, and heavy.

There were three steps, and as she stepped from the platform of the coach onto the first step her foot, in some manner, slipped and she fell backward and slid, feet foremost, down the steps onto the station platform below. She was wearing at the time, shoes, or pumps, of a fashionable make, with heels about three inches high. The heel from one of these shoes was wrenched off during her fall.

She did not ask for assistance in attempting to alight from the car. The auditor was standing at her left as she started to descend the steps. The conductor and brakeman were standing on the station platform, one on either side of the steps, for the purpose of assisting passengers to alight. The auditor testified that it was the duty of the brakeman to assist passengers in getting off the train, and the brakeman testified that he did assist passengers who preceded Miss Wisdom. None of the employees of the company rendered any assistance, though the auditor and brakeman testified that they attempted to do so after she slipped and began to fall.

The testimony concerning the condition of the steps was conflicting. There was testimony that the steps were covered with rubber mats, and that the rubber on the top step was entirely gone in places, and the step worn slick. There was also testimony that the rubber mat, though not worn through, was worn smooth and slick in places, and the photograph submitted supports this description of the same. There was other testimony to the effect that there was nothing wrong with the steps. There was a handrail on either side of the steps, extending from just above the top step to the bottom step.

One witness testified that when Miss Wisdom stepped on the first step her foot slipped forward and the heel of one shoe caught on the edge of the step and was pulled off. Practically all the witnesses agree in saying that she slipped on the first step; that her feet went out from under her, and she fell backward and bumped, feet foremost, down the steps to the platform of the station.

There was testimony to the effect that she received painful and permanent injuries as the result of such fall.

There was a trial by jury. The court's charge authorized a recovery if the employees in charge of the train failed to take hold of her arm, and thus assist her in alighting from the train, and if such failure was negligence and the proximate cause of her injuries, or if the step, or steps, were worn slick or slippery, and in consequence of such condition she slipped, or stumbled and fell, and if permitting such steps to be in such condition was negligence and the proximate cause of her injuries.

There was a verdict for the plaintiff, and judgment was entered in accordance therewith. The railway company appealed, and a majority of the Court of Civil Appeals held that the evidence was insufficient to support the verdict, and reversed the judgment of the trial court, but, instead of remanding the case for another trial, rendered judgment for the railway company. 216 S. W. 241. This writ of error was granted by the Supreme Court to review the judgment so rendered.

We do not understand the Court of Civil Appeals to hold that there is no evidence of negligence on the part of the railway company in this case. Such holding would have been erroneous as a matter of law, because, while the evidence is conflicting, there is some evidence in the record to the effect that the top step, or the rubber mat thereon, was old and worn slick, and that pla...