Johnson v. T. C. Ry. Co. , 42 Tex. Civ. App. 604 ( 1906 )

The trial court peremptorily instructed the jury against appellant and he appeals assigning error to the instruction.

The trial proceeded upon an amended petition wherein appellant claimed damages for personal injuries received while attempting to board one of appellee's passenger trains at Walnut Springs. As grounds of negligence he charged in effect that he took the train at Cisco for Waco; that the conductor directed him to get a ticket at Walnut Springs, appellant having exhibited a telegram from one of the superior officers of the appellee company so directing as his right to ride; that when the train arrived at Walnut Springs he promptly went to get his ticket, or pass, as directed, but the conductor started the train before he had time to get the ticket whereupon he hurriedly ran to the train to get on, but just as he was in the act of doing so his foot slipped because of the defective condition of the platform or walk and it was caught by one of the car wheels and badly injured. It was charged that the conductor was negligent in failing to wait a reasonable time and that appellee was also guilty of negligence in maintaining a platform or walk constructed of loose gravel and stone.

The case rests upon appellant's testimony alone, but it is quite voluminous and we see no good purpose to be served in quoting it. We think it sufficient to say that we have carefully considered said testimony and that in our judgment it raised the issues pleaded in appellant's behalf.

It has been often decided that questions of negligence dependent on evidence are for the jury, except in cases where there is no conflict and where there is no room for different minds to draw different inferences. (Choate v. San Antonio A. P. Ry., 90 Tex. 82; Lee v. International G. N. Ry.,89 Tex. 583; Bonn v. Galveston, H. S. A. Ry. Co., 11 Texas Ct. Rep., 237.) While the mere fact that appellant received an injury will not authorize the inference of negligence in maintaining insecure or improper platform and walks, as alleged, yet we think it was for the jury to say whether the maintenance of walks covered with loose gravel and stone and constructed as alleged by appellant in his plea, constituted negligence under all of the circumstances shown in evidence. A carrier of passengers owes the latter the same degree of care in providing for their safety, when engaged in proper acts, in the effort to board trains as when upon the train. See San Antonio A. P. Ry. Co. v. Turner, 9 Texas Ct. Rep., 87; Ft. Worth D.C. Ry. Co. v. Davis, 23 S.W. Rep., 737; Gulf, C. S. F. Ry. Co. v. Butcher, 18 S.W. Rep., 583; Houston T. C. Ry. v. Dotson, 38 S.W. Rep., 642; Texas P. Ry. v. Mayfield, 23 Texas Civ. App. 417[23 Tex. Civ. App. 417]; Texas Mid. Ry. v. Brown, 58 S.W. Rep., 44.

So, too, is it the duty of a railway company to hold a train at a station a reasonably sufficient length of time to allow a passenger who has been instructed so to do by its conductor in charge of the train, to procure a ticket and board the train before it is started. Appellee insists that appellant, being an employe, is not entitled to the protection of a passenger, but we are unable to agree with this contention. If appellant was upon the train, as he testifies, pursuant to the direction and command of appellee, we see no reason why a less degree of care upon appellee should be imposed than in cases of other persons lawfully upon the train. We think it should have been left to the jury to determine whether appellee's servants in charge of the train were guilty of negligence in the respect under consideration. See Missouri, K. T. Ry. Co. v. Gist, 73 S.W. Rep., 857; St. Louis S.W. Ry. Co. v. Germany, 56 S.W. Rep., 586; St. John v. Gulf, C. S. F. Ry. Co., 9 Texas Ct. Rep., 980; International G. N. Ry. Co. v. Anchonda, 5 Texas Ct. Rep., 289.

The conclusions last stated of course involve an adverse ruling upon appellee's cross assignment of error, to the effect that appellant's right, if any, to recover by reason of alleged negligence in failing to hold appellee's train at Walnut Springs a sufficient time for appellant to procure passes, for the first time set up in his amended petition filed more than two years after the filing of his original petition, is barred by the two years statute of limitation. The ground of action on appellant's part was negligence proximately resulting in injury. A mere general allegation, in the absence of special exception, would interrupt the statute of limitation. See Killebrew v. Stockdale, 51 Tex. 529; Kinney v. Lee, 10 Tex. 155 [10 Tex. 155]. The additional ground of negligence under consideration was not a new cause of action as appellee insists, but rather in the nature of an amplification or more complete statement of the original cause of action. See Sherman Oil Co. v. Stewart, 17 Texas Civ. App. 60[17 Tex. Civ. App. 60]; Caswell v. Hopson, 47 S.W. Rep., 54; Texas Pac. Ry. Co. v. Eberhart, 40 S.W. Rep., 1060; Texas Pac. Ry. Co. v. Johnson, 34 S.W. Rep., 186; Burton-Lingo Co. v. Beyer, 9 Texas Ct. Rep., 117.

The question presented in appellee's remaining cross assignment of error becomes immaterial in view of the reversal, and we therefore refrain from its discussion.

For the error of the court, however, in peremptorily instructing the jury to find against appellant, the judgment is reversed and the cause remanded.

Reversed and remanded.