Appellant sought damages of the several appellees for personal injuries claimed to have followed upon his effort to reboard at Houston one of their trains on the Houston East West Texas Railway, after he (having first become a passenger for hire by entering one of its coaches with a ticket that entitled him to ride on that train from Houston to Humble) had alighted therefrom to retrieve his hat, which along with his ticket had fallen out of the window; negligence proximately causing his injuries was generally and in a number of specified and reiterated particulars charged against the appellee carriers, especially the Houston East West Texas Railway Company: First, in this antecedent averment, "that just as plaintiff stepped off of said train, and before he had a reasonable time within which to re-board and re-enter said coach or car, said train started up and began moving slowly; that plaintiff attempted to re-board said train and stepped upon the platform or step at the entrance and door to said coach; that while plaintiff was so attempting to re-board and re-enter said coach, and had just stepped upon the platform and was standing upon same, said defendants' agent, servant and employee wantonly, recklessly, carelessly and negligently
slammed and closed the door to said entrance in plaintiff's face; that said door struck plaintiff and violently knocked plaintiff off of said platform or step; that plaintiff was thrown to the ground with great force and violence, and as he fell his right arm and hand was thrown beneath the trucks and wheels of said train; that said wheels passed over plaintiff's right hand and so greatly crushed and mangled same that it was practically cut off"; next, in greatly extended particularization, the substance of which is reflected in these paragraphs: "That said defendants, their agents, servants and employees, had actual knowledge and notice that plaintiff was going to alight and that plaintiff did in fact leave said train for the temporary purpose of recovering his hat and ticket; that said defendants, their agents, servants and employees, knew or by the exercise of reasonable care and prudence could and ought to have known, under all the circumstances and facts, that plaintiff was going to re-board and re-enter said train as a passenger thereon as soon as he recovered his hat and ticket; that said defendants, their agents, servants and employees, negligently failed to warn plaintiff that said train would start up and leave the station immediately and before he would have an opportunity to re-board and re-enter said train; that they negligently failed to warn plaintiff of the dangers of boarding or attempting to board said train while it was moving; that said defendants, their agents, servants and employees, negligently failed to look on either side of said train for the purpose of ascertaining whether or not plaintiff or other passengers had an opportunity to safely board same, or whether or not plaintiff or other passengers were attempting to board same; that said defendants, their agents, servants and employees, on said occasion negligently failed to hold up the movement of said train or keep same from starting in order to allow plaintiff time within which to alight for the temporary purpose aforesaid and to re-board same; that defendants, their agents, servants and employees, on said occasion negligently failed to allow or give plaintiff a reasonable and sufficient time to re-board and re-enter said train and coach after he had alighted for the purpose aforesaid; that said defendants, their agents, servants and employees, negligently failed to keep said door on said train and coach open on said occasion in order to allow plaintiff to re-board and re-enter said train; that said defendants, their agents, servants and employees, negligently failed to stop said train when they discovered that plaintiff was in a position of peril in trying to re-board and reenter said train; that said defendants, their agents, servants and employees, negligently failed to refrain from closing said door on said train when they knew, or by the exercise of ordinary care could have and ought to have known, that plaintiff was attempting to re-board and re-enter said train and that said defendants, their agents, servants and employees, negligently failed to refrain from closing said door when they discovered that plaintiff was in a position of peril."
The appellees answered with a demurrer, a denial, and a plea of contributory negligence on appellant's part, all general.
Despite numerous exceptions and objections to its charge from appellant, among them that it did not present all the issues raised by the pleadings and evidence — especially that relating to the appellees' alleged negligence after appellant had been placed in a position of peril, concerning which he tendered six special issues that were refused — the trial court submitted the cause to a jury on special issues that at least essayed to cover all those raised on either side, except the one so complained about by appellant touching his alleged peril.
In response, while not answering many of the inquiries because of the conditional directions given them, the jury found:
(1) That the conductor, while neither knowing nor having reason to believe that plaintiff was a passenger on the train, knew or had reason to believe that he left the train on the occasion in question for the purpose of recovering his hat;
(2) That the plaintiff did not attempt to reenter the car in which he had been sitting at the door of his exit;
(3) That defendant's agents and servants in charge of its train, before starting the same, negligently failed to look to see if plaintiff was attempting to reboard such train, which negligence was a proximate cause of his accident and injury;
(4) That the door was closed at the point and at the time the plaintiff attempted to reenter the train, that he was negligent in attempting to re-enter at such point, and that such negligence was a proximate cause of his injuries;
(5) That the plaintiff was negligent in getting off the train without notifying the conductor that he intended to reboard it, and that such negligence was a proximate cause of his injuries;
(6) That $4,500 would reasonably compensate him for the injuries sustained.
Whereupon judgment on the verdict followed in favor of appellees; hence this appeal.
Aside from appellant's other contentions, we conclude that his ninth proposition, to the effect that "both the pleadings and the evidence in this case having raised the issue of discovered peril, it was error for the Court to refuse to submit this issue when properly requested by plaintiff," should be sustained; as the statement has shown, this was repeatedly pleaded as one among the several
distinct acts of negligence relied upon for a recovery, and the testimony plainly raised it as a fact question for the jury; the learned trial court, though properly requested through objections to its absence in the charge given, as well as the tender of special inquiries at least sufficient to direct attention to the matter, refused to submit it at all.
As stated, this was a distinct act of negligence embodying a cause of action independent of those declared upon as resulting from the other acts of negligence alleged, and proof of appellant's contributory negligence as referable to it — even had it shown that he had been utterly foolhardy in getting into the situation it applied to — could have constituted no defense whatever to it; if the facts so alleged and testified to were true, a new duty arose on the trainmen's part to use all means at hand, consistent with the safety of the train, to protect him, irrespective of his own negligence. G., H. H. Ry. Co. v.
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Appellant sought damages of the several appellees for personal injuries claimed to have followed upon his effort to reboard at Houston one of their trains on the Houston East West Texas Railway, after he (having first become a passenger for hire by entering one of its coaches with a ticket that entitled him to ride on that train from Houston to Humble) had alighted therefrom to retrieve his hat, which along with his ticket had fallen out of the window; negligence proximately causing his injuries was generally and in a number of specified and reiterated particulars charged against the appellee carriers, especially the Houston East West Texas Railway Company: First, in this antecedent averment, "that just as plaintiff stepped off of said train, and before he had a reasonable time within which to re-board and re-enter said coach or car, said train started up and began moving slowly; that plaintiff attempted to re-board said train and stepped upon the platform or step at the entrance and door to said coach; that while plaintiff was so attempting to re-board and re-enter said coach, and had just stepped upon the platform and was standing upon same, said defendants' agent, servant and employee wantonly, recklessly, carelessly and negligently
slammed and closed the door to said entrance in plaintiff's face; that said door struck plaintiff and violently knocked plaintiff off of said platform or step; that plaintiff was thrown to the ground with great force and violence, and as he fell his right arm and hand was thrown beneath the trucks and wheels of said train; that said wheels passed over plaintiff's right hand and so greatly crushed and mangled same that it was practically cut off"; next, in greatly extended particularization, the substance of which is reflected in these paragraphs: "That said defendants, their agents, servants and employees, had actual knowledge and notice that plaintiff was going to alight and that plaintiff did in fact leave said train for the temporary purpose of recovering his hat and ticket; that said defendants, their agents, servants and employees, knew or by the exercise of reasonable care and prudence could and ought to have known, under all the circumstances and facts, that plaintiff was going to re-board and re-enter said train as a passenger thereon as soon as he recovered his hat and ticket; that said defendants, their agents, servants and employees, negligently failed to warn plaintiff that said train would start up and leave the station immediately and before he would have an opportunity to re-board and re-enter said train; that they negligently failed to warn plaintiff of the dangers of boarding or attempting to board said train while it was moving; that said defendants, their agents, servants and employees, negligently failed to look on either side of said train for the purpose of ascertaining whether or not plaintiff or other passengers had an opportunity to safely board same, or whether or not plaintiff or other passengers were attempting to board same; that said defendants, their agents, servants and employees, on said occasion negligently failed to hold up the movement of said train or keep same from starting in order to allow plaintiff time within which to alight for the temporary purpose aforesaid and to re-board same; that defendants, their agents, servants and employees, on said occasion negligently failed to allow or give plaintiff a reasonable and sufficient time to re-board and re-enter said train and coach after he had alighted for the purpose aforesaid; that said defendants, their agents, servants and employees, negligently failed to keep said door on said train and coach open on said occasion in order to allow plaintiff to re-board and re-enter said train; that said defendants, their agents, servants and employees, negligently failed to stop said train when they discovered that plaintiff was in a position of peril in trying to re-board and reenter said train; that said defendants, their agents, servants and employees, negligently failed to refrain from closing said door on said train when they knew, or by the exercise of ordinary care could have and ought to have known, that plaintiff was attempting to re-board and re-enter said train and that said defendants, their agents, servants and employees, negligently failed to refrain from closing said door when they discovered that plaintiff was in a position of peril."
The appellees answered with a demurrer, a denial, and a plea of contributory negligence on appellant's part, all general.
Despite numerous exceptions and objections to its charge from appellant, among them that it did not present all the issues raised by the pleadings and evidence — especially that relating to the appellees' alleged negligence after appellant had been placed in a position of peril, concerning which he tendered six special issues that were refused — the trial court submitted the cause to a jury on special issues that at least essayed to cover all those raised on either side, except the one so complained about by appellant touching his alleged peril.
In response, while not answering many of the inquiries because of the conditional directions given them, the jury found:
(1) That the conductor, while neither knowing nor having reason to believe that plaintiff was a passenger on the train, knew or had reason to believe that he left the train on the occasion in question for the purpose of recovering his hat;
(2) That the plaintiff did not attempt to reenter the car in which he had been sitting at the door of his exit;
(3) That defendant's agents and servants in charge of its train, before starting the same, negligently failed to look to see if plaintiff was attempting to reboard such train, which negligence was a proximate cause of his accident and injury;
(4) That the door was closed at the point and at the time the plaintiff attempted to reenter the train, that he was negligent in attempting to re-enter at such point, and that such negligence was a proximate cause of his injuries;
(5) That the plaintiff was negligent in getting off the train without notifying the conductor that he intended to reboard it, and that such negligence was a proximate cause of his injuries;
(6) That $4,500 would reasonably compensate him for the injuries sustained.
Whereupon judgment on the verdict followed in favor of appellees; hence this appeal.
Aside from appellant's other contentions, we conclude that his ninth proposition, to the effect that "both the pleadings and the evidence in this case having raised the issue of discovered peril, it was error for the Court to refuse to submit this issue when properly requested by plaintiff," should be sustained; as the statement has shown, this was repeatedly pleaded as one among the several
distinct acts of negligence relied upon for a recovery, and the testimony plainly raised it as a fact question for the jury; the learned trial court, though properly requested through objections to its absence in the charge given, as well as the tender of special inquiries at least sufficient to direct attention to the matter, refused to submit it at all.
As stated, this was a distinct act of negligence embodying a cause of action independent of those declared upon as resulting from the other acts of negligence alleged, and proof of appellant's contributory negligence as referable to it — even had it shown that he had been utterly foolhardy in getting into the situation it applied to — could have constituted no defense whatever to it; if the facts so alleged and testified to were true, a new duty arose on the trainmen's part to use all means at hand, consistent with the safety of the train, to protect him, irrespective of his own negligence. G., H. H. Ry. Co. v. Sloman (Tex.Civ.App.) 195 S.W. 321, writ of error refused; Railway v. Breadow,90 Tex. 26, 30, 36 S.W. 410.
Neither did the evidence underlying them nor the jury's findings shown under preceding paragraphs (2) and (4), respectively, that appellant did not attempt to re-enter the car in which he had been sitting at the door of his exit therefrom, and that the door was closed at the point and time he did attempt to re-enter, preclude or eliminate this issue; while he himself testified that he did try to get back at the same door, and that it was slammed shut in his face as he was standing on the steps trying to get in (the train operatives denying it), neither his pleading nor the proof as a whole on the subject limited his claim of actionable negligence with reference to his alleged perilous position to the state of case reflected in either finding; on the contrary, his averments, especially when given the benefit of all reasonable intendments in the absence of any special exceptions, were broad enough to cover the application of that doctrine to whatever entrance he in fact attempted, and plainly, if not conclusively — the trial court having so assumed in submitting the inquiries and the jury having in effect found that to be a fact in returning answers (3) and (4) — the evidence likewise did tend to indicate that he attempted a reentrance of the train at some door thereof, notwithstanding it may have been closed at the time.
Appellant was in material substance corroborated by other witnesses to this effect; that he first got on the train as a passenger having a ticket, lost his hat out of the window, and alighted to retrieve it; that before he got there his hat with the ticket in it was picked up outside by others when the train was just starting off and handed back to some one on the train, whereupon he turned and overtook the slowly moving train, climbed onto the steps of one of the coaches, and tried but failed to get inside, holding to the grabirons at the side of the entrance until he fell off and under the wheels to his injury some distance east of Sixth street, apparently more than two blocks from where he got on; not only so, but witness after witness (several of them called by the appellees) testified to having seen him so hanging there, one of the latter, Mr. J. C. Tanner, after stating that he neither saw appellant get on nor when that door of the coach was closed, said that he saw him hanging to the side of the train that way, that he was still hanging there for some time after the train had passed Sixth street, and fell off after or just as it was rounding the curve in the track near the brewery; indeed, it seems to have been an uncontroverted fact that he did thus hang onto the train, every witness in position to know about that feature who testified saying that he saw him doing so, except the train operatives, who all denied seeing him; appellant himself, while elsewhere saying in effect that the conductor knocked him off by slamming the door in his face just as he attempted to enter, finally on cross-examination recapitulated his testimony on that detail with this statement:
"Wherever I hit the ground is the place where the door was slammed on me; when the door hit me it knocked me off on the ground. I do not know what distance that was from where I tried to get on the train — don't know about how far it was; can't guess at it. * * * I do not know how far the train went then before I fell off."
The point of his fall having been fixed at or beyond the curve in the railroad track by the witness Tanner, who said he pulled him out from under the train, and others, it results that he must have thus hung onto the outside of the train while it slowly traveled more than two blocks.
Every member of the train crew, the conductor, the porter, and the brakeman, admitted that it was reported to him that night just after the train started and while it was running slowly — perhaps never more than about five miles per hour — that a man was hanging on the outside of the train, which the conductor testified was a very unsafe practice and against the company's rules, yet no one of them made any effort to use either one of the two concededly sufficient means that were then at hand for averting the injury — stopping the train, or opening the door; not claiming that he was not in danger if in the position reported to them, the sole reason each and all gave for not employing the one or the other was that they investigated on receiving the report that the man was hanging on, and that he was not there, that they did not see him, adding that they both could and would have stopped the train and let him in, if he had been.
This denial of the trainmen that they either saw or knew appellant was hanging on the train in the situation the other witnesses testified to cannot be taken as conclusive, especially in view both of his own testimony that they did and of all the circumstances tending to contradict them, the question of whether they did or not being clearly one for the jury.
Such being the state of the record, we think the issue of discovered peril was raised and that the failure to submit it constituted prejudicial error. Railway v. Cannon (Tex.Civ.App.) 81 S.W. 778; Hines v. Arrant (Tex.Civ.App.) 225 S.W. 767; Railway v. Kopinitsch, 114 Tex. 367,268 S.W. 923; Railway v. Wagner (Tex.Com.App.) 298 S.W. 552; Higginbotham v. Railway (Tex.Civ.App.) 155 S.W. 1025; Railway v. Yarbrough (Tex.Civ.App.) 73 S.W. 844; Railway v. Logan (Tex.Civ.App.) 184 S.W. 301; Railway v. Hammond (Tex.Civ.App.) 286 S.W. 483.
The judgment has been reversed and the cause remanded, with Associate Justice LANE dissenting.
Reversed and remanded.