Yoes v. Texas & P. Ry. Co. , 1919 Tex. App. LEXIS 517 ( 1919 )

The appellant insists that the finding of the jury that the railway company was not guilty of negligence was contrary to the evidence, and was caused by an erroneous instruction as to the degree of care required of the railway company to avoid injury to him, a passenger. Negligence, as applied to a passenger, is the rule that should have been submitted to the jury. Railway Co. v. Atkins, 185 S.W. 306. And we think that the jurors, in reaching an answer to the above special issue, were probably misled by the instruction as given by the court respecting the care to be used in the operation of the train. But it is believed that the giving of the instruction on negligence as complained of would not warrant a reversal of the judgment. For, conceding that the jury may, under proper instruction, have made a finding of fact that the company was guilty of negligence, the court nevertheless could not, in view of other special findings, have rendered judgment for the appellant. The jury found as a fact (1) that the injury complained of by the appellant was not caused by any negligence on the part of the railway company; and (2) that the appellant was himself guilty of contributory negligence which caused the Injury. The evidence was conflicting respecting contributory negligence and the degree of care the appellant was to exercise for his own safety were correct statements of the law, and are not complained of on appeal. The jury answered "No" to the question, Did the plaintiff exercise ordinary care for his own safety under the circumstances of the situation?" and answered "Yes" to the question, "Was the plaintiff guilty of contributory negligence which caused his injury, if any?" And there is ample evidence in this case to make an issue of fact for the jury to decide as to whether or not the appellant was guilty of contributory negligence. It appears that the seats provided for passengers were cushioned bunks, securely fastened to the wall. The chair in which the appellant was sitting was provided exclusively for the use of the conductor. The jars, or unusual jars, of the freight train would not upset the bunks as this jar upset the chair and caused appellant to be thrown to the floor of the caboose. Appellant says:

"I knew they were switching all around. I knew the train was going — that is, if I had stopped to think — and I knew that when they were coupling there were frequently bad jars. I don't think the bunks would have turned over if I had been sitting on them."

And appellant does not claim that he was impliedly invited to use the chair at the time, for he says, "I knew that chair was provided for the conductor." So the testimony in this case was not contradicted that the railway company came up to the standard of duty required by law in providing the securely fastened bunks or seats for passengers, and that the appellant voluntarily chose to occupy a movable chair not provided for him to use and at a time when none of the employés had notice that he was in the chair. And it appears that appellant was aware that switching was then being done. In occupying the chair the appellant reasonably knew that it could not be used in comparative freedom from being overturned through sudden jerks and the like of the train when moved. The simple fact of occupying the chair would not of itself be an act of imprudence necessarily; but in view of the nature of the train, in connection with the place appellant was occupying, it may have been an imprudent act subjecting him to an injury that might have been avoided had he occupied the seat provided for him by the company. Therefore it became a question of fact to be determined by the jury, after considering all the circumstances in evidence relating to the situation as to whether or not appellant was guilty of contributory negligence. As said in Railway Co. v. Morgan, 44 Tex. Civ. App. 155, 98 S.W. 408:

"We do not think the simple fact that a position in the cupola of a car would be more dangerous than one on the floor of such car would, of itself, render the act of appellee in taking the former position contributory negligence as matter of law; but it would be a question of fact to be determined by the jury, after considering all of the circumstances relating to such act."

The court cannot say, as a matter of law, that there was no contributory negligence in this case; and the assignments so complaining are overruled.

In view of the finding of the jury of contributory negligence, the court, it is concluded, correctly entered judgment for the defendant, and we think the judgment should be affirmed.