International & Great Northern Railway Co. v. Rhoades

52 S.W. 979, 21 Tex. Civ. App. 459, 1899 Tex. App. LEXIS 395

• Court: Court of Appeals of Texas
• Decided: June 7, 1899
• Status: Published

Opinions

FISHER, Chief Justice.

This is an action by appellee Bhoades against the railway company for damages which he alleges were sustained by him through negligence of the defendant in failing to stop its train, on which he was a passenger, at the usual stopping place for passengers to alight from trams at Gause, on the night of April 26, 1898, which was the place that plaintiff desired to leave the train; and that by ringing the bell and blowing the whistle it caused the plaintiff to believe that the train had slowed up, when it had not, but was moving rapidly, it being too dark for the plaintiff to see how fast the train was moving; and while thus moving past the usual stopping place, the conductor commanded and directed the plaintiff to alight from the train, and plaintiff, not being able to see in the darkness, believing the train had slowed up, and being inexperienced in getting on and off moving trains, and relying upon the skill and care of the conductor and employes in charge of the train and operating the same, and in properly instructing him when and where to alight from the same, tried to get off at the time and place as directed by the conductor, and in so doing was injured, etc.

The defendant pleaded general and special demurrers, general denial, and alleged contributory negligence upon the part of plaintiff in jumping off the moving train in the darkness. Verdict and judgment were in plaintiffs favor for $250.

There was no error in overruling the demurrers. The petition upon its face does not allege facts showing that the appellee was guilty of contributory negligence in alighting from the train under the circumstances.

The court, on the question of liability of the railway compan}', instructed the jury as follows:

"If you believe from the evidence that the plaintiff was a passenger on one of the trains of defendant, and had paid his fare from Milano to Gause, and that he was promised by the conductor on said train that said train would be stopped at Gause for a time sufficiently long to allow plaintiff to alight from said train of cars, and when said train arrived at Gause it was not stopped at the usual place for stopping for passengers to alight from said cars, but that plaintiff was instructed by the conductor to alight from said train of cars, and that plaintiff was at the time ignorant of the danger of jumping from a moving train, but was made to believe by said conductor or other agent and employe of defendant that he could safely get off of said train of cars at the time, and did jump from same and thereby injured himself, then you will find for the plaintiff such actual damages as the evidence shows will be a fair and reasonable compensation to plaintiff for the injuries sustained. A passenger riding on a train of ears is required to use such care and diligence in getting off the train as a prudent, cautious, and competent person would use under similar circumstances, and the want of such diligence on the part of plaintiff in alighting from said train of cars would prevent him from recovering a judgment against defendant.”

There is evidence in the record which authorized the court to give the charge quoted. The effect of the verdict is that the jury gave credence to the facts in the record which show that the plaintiff was in the exercise of proper care at the time that he alighted from the train, and that he was inexperienced, and that he relied upon the instructions of the conductor that there was no danger, and that then and there was the proper time to leave the train.

If the train had been going at the rate of speed such that it was dangerous to leave it, and that it was so obvious that a prudent man would not encounter it, a passenger would not be justified in relying upon the advice and instructions of the conductor that he could alight with safety. But there is evidence in the record which would justify the conclusion that the train was not going at such a rate of speed that the danger in alighting therefrom was obvious to a man of inexperience in the movement of trains and in alighting from them.

The rule of law applicable to the facts consistent with the verdict is as follows: “A passenger is not guilty of negligence per se in jumping from a moving train by the advice or order of the conductor or other authorized servant of the carrier on whose opinion or judgment in the matter he has a right to rely, if the danger of such act would not be apparent to a man of ordinary prudence.” Railway v. Schlaufler, 75 Ala., 142; Railway v. Winn, 93 Ala., 309; Railway v. Pierson, 49 Ark., 182; Railway v. Cantrell, 40 Am. Rep., 105; Railway v. McCurdy, 45 Ga., 288; McCasslin v. Railway, 93 Mich., 553; Railway v. Krouse, 30 Ohio St., 222; Railway v. Brown, 23 S. W. Rep., 618; Railway v. Bingham, 21 S. W. Rep., 569; Railway v. Viney, 30 S. W. Rep., 252.

At the request of the defendant the court gave the following instruction: “If from the evidence you believe that the plaintiff, in jumping or stepping from the moving train, sustained some or all of the hurts of which he complains, then he can not recover, even if you find that he was not, in so doing, guilty of negligence, unless you further find from the evidence that the agents and servants of defendant in charge of the train commanded, directed, and invited plaintiff to leave the train while in motion, and that plaintiff in so doing acted as would have acted a person of ordinary prudence. And in this connection, you are further instructed that a command, direction, or invitation given by an agent or servant of defendant to disembark from a moving train will not make defendant liable for resulting injuries, if a person of ordinary prudence would not have acted upon such command, direction, or invitation.”

This charge, when considered in connection with the main charge of the court as quoted, correctly presents all of the issues arising from the evidence; and it was unnecessary for the court to further instruct the jury on the questions submitted in the special charges which were refused.

There was sufficient evidence of physical injuries upon which to base a submission of injury arising from mental suffering; and as to this item it was not essential, in order for the plaintiff to recover for damages sustained for mental anguish, that he should prove an amount or sum covering the injuries in this respect.

The language used by counsel in his argument, as complained of in the fourteenth assignment of error, is not ground for reversal.

We have carefully considered the questions raised in the sixth assignment of error, and those raised in the other assignments that are not specially noticed. We find no error in the record, and the judgment is affirmed.

Affirmed.