Gulf, Colorado & Santa Fe Railway Co. v. Rowland , 90 Tex. 365 ( 1897 )

Defendant in error brought this suit against plaintiff in error to recover damages for personal injuries, and obtained a judgment in the District Court, which was affirmed in the Court of Civil Appeals. To reverse the judgment in the latter court, the plaintiff in error has applied for and obtained this writ of error.

In his amended petition the plaintiff below, after averring that he became a passenger on defendant's cars, destined to a certain station on its line known as Lometa, proceeded to set forth the specific acts of negligence of which he complained, in the following language: "Plaintiff alleges that when said passenger train arrived at the station, Lometa, it being night, and very dark, notice was given by the conductor of said passenger train to plaintiff of the arrival of said train at said station; and plaintiff was notified by him to get off and alight from said train. That immediately after said notice, said passenger train stopped at said station, and plaintiff, believing that he could have sufficient time to safely alight from said train, attempted to do so. That while plaintiff was so engaged, in a careful and proper manner, in attempting to alight from said train, and while he was in the act of so doing, the defendant's agents and servants in charge of said train, without any fault or negligence on the part of plaintiff, knowing the situation of plaintiff, so negligently and carelessly conducted themselves in the management and handling of said train and the engine thereof that said engine and train was suddenly moved and jerked, and without stopping a sufficient length of time in which to allow plaintiff to alight therefrom with safety, was started and put in motion, thereby causing plaintiff to fall and be violently thrown a great distance against the station, depot, platform and ground, whereby plaintiff was seriously, painfully and permanently injured." No other negligence is charged in the plaintiff's pleading.

The defendant, after pleading a general denial, answered specially in substance, that if the plaintiff was injured at all, his injury was caused by his own negligence "in jumping from" the train while it was in motion.

The plaintiff testified in effect that when the train reached the station he proceeded to leave it without unnecessary delay, and that, as he was descending the steps of the coach, the train was suddenly set in motion, and that he was thrown upon the depot platform and seriously injured. On the other hand, there was testimony tending to show that the train stopped a sufficient time for him to have left the car, and that, when he did attempt to alight, the train was in motion and had moved some twenty or thirty feet. Therefore the issues were sharply presented, both by the pleading and the evidence: (1) Were the servants of the company negligent in putting the train in motion while the plaintiff was in the act of dismounting? and (2) was the plaintiff guilty of negligence in attempting to alight after the train was set in motion? So far as we can see, there was no question of proximate cause involved in either issue. If the train was negligently started while the plaintiff was in the act of leaving the coach, and if he was by reason thereof thrown down and injured, and if he himself was not negligent, he was clearly entitled to recover. On the other hand, if his act in attempting to alight from the train was negligent, it immediately and directly contributed to the resulting injury, and he was not entitled to a verdict. Such being the issues, the court after having given charges which presented all the phases of the case, and which appear to us not subject to objection, proceeded to extend or qualify them by additional instructions, among which are the following:

"The specific allegation of negligence on the part of defendant, is that at said station of Lometa, while plaintiff was engaged in a careful and proper manner in attempting to alight from said train, and while he was in the act of so doing, the defendant's agents and servants in charge of said train, without any fault or negligence on the part of plaintiff, knowing the situation of plaintiff, so negligently and carelessly conducted themselves in the management and handling of said train and the engine thereof, that said engine and train were suddenly moved and jerked, and, without stopping a sufficient length of time in which to allow plaintiff to alight therefrom with safety, was started and put in motion, thereby causing the plaintiff to fall and be violently thrown a great distance against the station, depot, platform and ground, whereby the plaintiff was injured as set forth in his petition. If plaintiff without any negligence on his part proximately contributed to the injury (if any) was injured by such alleged negligence on the part of defendant's servants, then, if you so believe from the evidence, you should find for plaintiff. If, on the contrary, you believe that defendant's servants were guilty of the said alleged negligence in suddenly moving said train, but you further believe from the evidence that if plaintiff had used the ordinary care and prudence that men of ordinary care and prudence generally would have used under similar circumstances, he could, or probably would have avoided the injury — if any was sustained — then he is not entitled to recover in this case. Or if you believe from the evidence that the train was suddenly started as alleged, and had not stopped a sufficient length of time to allow plaintiff to alight from the train as alleged, and that at the time plaintiff left the train it was in rapid motion, and that the plaintiff recklessly and negligently leaped from, or left the train — or that his act of leaving the moving train was such as a man or ordinary care and prudence would not have done in view of the circumstances, and that his thus leaving the train was the proximate cause of the injury, and that his want of care directly contributed to the injury, then if you believe the injury (if any) was sustained under these circumstances, you must find for defendant.

"This, or the immediate foregoing paragraph of this charge, in short, means that a passenger upon a steam car, who voluntarily and without cause exposes himself to danger by attempting to get off of a car in motion cannot recover for injuries thus sustained, if his negligence proximately contributed to his injuries. But the mere fact of negligence on the part of plaintiff would not defeat his right to recover, if he otherwise had such right; but the negligence or want of care on his part in thus leaving the car must have proximately contributed to the injury. In other words, if the defendant's negligence was the direct and proximate cause of the alleged injury, and the plaintiff's negligence was the remote cause of the injury, then plaintiff's right to recover (if he otherwise had any) would not be defeated by such negligence.

"Whether there was recklessness or negligence on the part of plaintiff in leaving the car under the facts before you, and that leaving was the proximate cause of his injury, or whether defendant's agents and servants were guilty of negligence in the manner alleged, and whether such negligence was the proximate cause of injury to plaintiff, you must determine from the evidence."

Proximate cause, literally, means the cause nearest to the effect produced, but in legal terminology the terms are not confined to their literal meaning. Though a negligent act or omission be removed from the injury by intermediate causes and effects, yet if the party guilty ought reasonably to have foreseen the ultimate consequence, such negligence is deemed in law the proximate cause of the injurious effect. The specific defense of contributory negligence was, as we have seen, that the plaintiff "jumped from the train" while in motion. If he did so jump, and he was thereby injured, his act was the immediate cause of his injury, and hence there was no, question of proximate cause involved in that issue. Yet the instructions which we have quoted lay paramount stress upon the question of proximate cause in reference to the negligence of the plaintiff as charged in the answer, and present that question in a pointed manner in every possible phase of the case. The jury are told distinctly, not only that if he was negligent and his negligence was the proximate cause of the injury he could not recover, but also that if negligent and his negligence was not the proximate cause of his injury, he could recover provided the defendant was negligent as alleged in the petition. The instructions presented a question not made by the pleading and evidence, and their only effect, in our opinion, was to confuse and mislead the jury. We have recently held, in a very similar case, that such instructions are erroneous and require a reversal of the judgment, and we are still of that opinion. (Railway v. McCoy, ante, 264.) The testimony was in sharp conflict as to the plaintiff's negligence, and therefore we cannot say, that the jury were not misled by the charge. We therefore think that the judgment ought to be reversed.

There are other assignments of error which complain of the charge given, as well as of the refusal of instructions asked by the defendant. But we think the charge in other respects correct; that it fully covered the issues made in the case, and that there was no error in refusing the defendant's requests for special charges.

The proposed testimony of the witness Buchanan, which was objected to by the plaintiff and ruled out by the court, was, in our opinion, properly excluded.

The other questions raised by the assignments are of such a character that they will not probably arise upon another trial and therefore they need not be determined.

For the error pointed out, the judgment of the Court of Civil Appeals and that of the District Court are reversed and the cause remanded.

Reversed and remanded. C.B. Randell, for defendant in error, in support of a motion for rehearing, contended:

First — Every case involving the issue of contributory negligence necessarily involves the issue of proximate cause.

Second — As to whether or not a passenger is guilty of negligence in being dilatory in alighting from a train, or in alighting from a train while in motion, is a question of fact for the jury, and is not negligence per se.

Third — If a passenger negligently loiters after his train has stopped at the station, or if he negligently leaves the train when the same is in motion, simultaneously or near the time when such train is suddenly started, moved or jerked, and there is a question as to whether the negligent loitering or leaving the train or the negligent moving or jerking of the train caused the injury, or whether it was caused by both, then the question of contributory negligence is raised; and the question being as to whether or not the negligence of the passenger proximately contributed to the injury, or whether the negligence of the railway company proximately caused the injury, the issue as to proximate cause would necessarily have to be submitted to the jury in regard to the negligence of each party. Beach on Con. Neg., 3, 7, 19, 24, 26; 2 Thomp. on Neg., 1148; Tuff v. Warman, 5 C. B. N. S., 573; Freer v. Cameron, 55 Am. Dec., 668; Railway v. Thomas, 79 Ky. 160; Railway v. Jones, 95 U.S. 439; Railway v. Hughes, 40 Pac. Rep., 919; Railway v. McCandliss, 33 Kan. 366; 16 Am. Eng. Encycl. Law, 387, 388; 18 Id., 17, 19, 20; Webb's Pollock on Torts (Am. ed.), 573; Railway v. Leslie, 57 Tex. 87; Railway v. Danshank, 6 Texas Civ. App. 389[6 Tex. Civ. App. 389]; Neanow v. Uttech,46 Wis. 587; Railway v. Ormonde, 64 Tex. 489; Railway v. McClain, 80 Tex. 96; Railway v. Buford, 2 Texas Civ. App. 117[2 Tex. Civ. App. 117]; Johnson v. Railway, 2 Texas Civ. App. 142[2 Tex. Civ. App. 142]; Wilburn v. Railway, 4 Am. Neg. Cases, 370; Mathiason v. Mayer, 90 Mo., 585; Morrison v. Railway, 130 N.Y. 166. Walton Hill, also in support of motion for rehearing, discussed Railway v. McCoy, 38 S.W. Rep., 36; Railway v. Wisenor, 66 Tex. 675; Railway v. Faber, 63 Tex. 344 [63 Tex. 344]; Railway v. Gilmore, 62 Tex. 391 [62 Tex. 391]; Cook v. Dennis, 61 Tex. 248; Andrews v. Smithwick, 20 Tex. 118; Austin v. Talk, 20 Tex. 167.

The motion for rehearing was overruled.

FEBRUARY, 1897.