T. & P. R'y Co. v. Best , 66 Tex. 116 ( 1886 )

Robertson, Associate Justice.

The principle which imposes upon a railway company the duty of keeping in safe condition its premises for the use of a friend of a passenger, aiding him to enter or leave the train, now well established by adjudicated cases (Hamilton v. R’y Co., 64 Tex., and cases cited) can have no definition not fairly embracing the plaintiff’s case. The plaintiff was not a trespasser or an idle wanderer. He was there by appointment with one supposed to be on defendant’s train, with a view of becoming himself a passenger, if the appointment was met. If his friend had been on the tram, and the plaintiff had taken passage, he would then have entered the premises by right. It cannot be that the character of his entry is held in abeyance to be wrongful ab initio in one event, and, from the beginning, rightful in another. He was there to become a passenger in a stated contingency, ascertainable nowhere else. If he acted in good faith and not upon a mere pretense,' he had the right to be upon the platform and there receive the protection of ordinary care. The charge requested by the defendant, presenting the plaintiff as a trespasser or vagrant as to defendant, was properly refused.

The court instructed the jury that if the plaintiff knew the platform was defective, but it was necessary for him to use the defective part, he would be entitled to recover. It is obvious that the word necessary-was not used by the court or understood by the jury in its proper and usual signification. It was not necessary for the plaintiff to seek the voice he had heard; it does not appear that it was necessary for him to use the route he followed. If the word was used in its correct sense, the verdict is unsupported by the evidence. In its true signification the plaintiff was deprived of the benefit of the law applicable to the case; a severer rule was imposed upon him than could be required by law, and a stricter one than his facts could fulfill. The correct test of the liability of the plaintiff to the charge of contributory negligence was whether a prudent person, in the same situation and with the

knowledge possessed by the plaintiff, would have done what he did. See authorities below. He might have the right to do what was done, whether it was necessary or not. If the word was used in the sense of important, then he might be guilty of contributory negligence in going. over that part of the platform, whether necessary (in the sense of important) or not. In the real meaning of the word, the testimony does not sustain the verdict under the charge.. In any other meaning, the charge does not present to the jury at all the law of the case. In either view, the judgment cannot be sustained. Murphy v. Railway Company, 46 Tex., 356; Beach on Con. Neg., 258; note to City of Erie v. Magill, 47 Am. Rep., 744.

In the brief of counsel ¡for appellant the numerous questions necessarily disposed of adversely by the verdict, but generally uselessly presented for review to this court, are properly omitted, while only the points of law really open for revision are clearly presented in accordanee with the rules.

This practice secures to the parties the full benefit of the appeal, and, at the same time, causes no waste of the time of this court. The judgment is reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered April 23, 1886.]