Dallas Ry. & Terminal Co. v. Graham ( 1944 )

This is a second appeal, each party having in turn recovered judgment. Here, after retrial and jury verdict, plaintiff's judgment for $4,000 has been brought up for review on various specifications of error. The factual background of plaintiff's action is sufficiently stated in former opinion (165 S.W.2d 1002), made part hereof by reference.

The case was tried on amended pleadings with additional issues involving, mainly, contributory negligence on part of plaintiff; while certain defensive issues, given on former trial, were by the court refused. Jury answers resulting in the instant judgment are set forth in substance: (1) Defendant company on the occasion in question provided a place for passengers to alight, which required them to alight between the north and southbound tracks, which was negligence proximately causing plaintiff's injuries; (2) the operator of defendant's southbound street car failed to wait until all passengers discharged from its northbound car had removed themselves to a place of safety before moving the southbound car past said northbound car, which was negligence and proximate cause of injuries; (3) defendant's southbound car was being operated at a speed of 12 miles per hour just prior to the collision, which also constituted negligence and proximate cause; (4) operator of southbound car failed to keep a proper lookout for Minnie Graham, being proximate cause of the injuries to her; (5) failure of northbound car operator to lock his rear street car door while the southbound car was passing was not negligence; (6) the collision was not an unavoidable accident.

The following jury issues and answers touching on plaintiff's own conduct are quoted: (15) "Do you find from a preponderance of the evidence that at the time and on the occasion in question, Minnie Mae Graham failed to keep a proper lookout for the southbound street car?" Answer: "No." (17) "Do you find from a preponderance of the evidence that at the time and on the occasion in question, Minnie Mae Graham failed to listen for the approach of the southbound street car?" Answer: "No." (20) "Do you find from a preponderance of the evidence that at the time and on the occasion in question the failure of Minnie Mae Graham to go toward Asbury Street or Hillcrest Avenue before proceeding in an easterly direction, was a failure to exercise ordinary care?" Answer: "No." (23) "Do you find from a preponderance of the evidence that at the time and on the occasion in question Minnie Mae Graham failed to promptly alight from the northbound street car after it stopped?" Answer: "No." Defensive issues 17, 20 and 23 along with related issues on negligence and proximate cause, were not submitted on former hearing, and appear as additional issues of the present trial.

A summary of defendant's points of appeal follows: (1) Error of the trial court in refusing its peremptory instruction because the evidence established contributory negligence as a matter of law; (2) no evidence to support the jury's finding that plaintiff did not fail to listen for approach of defendant's street car; (3) the court's error in not setting aside said finding that plaintiff did not fail to listen for approach of street car because such answer was clearly against the great weight and preponderance of evidence and prevented any finding on issue 18 of whether failure of plaintiff to listen was negligence and proximate cause of her injuries; (4) error in refusing to submit requested issues relative to plaintiff's conduct in moving toward the track without first ascertaining whether any street car was approaching, same having been held proper on former appeal; (5) similar error in refusing to submit the issue of whether plaintiff failed to use ordinary care in not keeping out of reach of the street car until it had passed.

Pursuant to request for directed verdict, appellant now insists that it was entitled to judgment in that plaintiff was guilty of contributory negligence as a matter of law in attempting to cross the east (southbound) car track without taking reasonable precaution for her own safety; or, concretely stated, the jury's findings (a) that she did not fail to keep a proper lookout, and (b) that she did not fail to listen for the approach of the street car, are without support in evidence and should be disregarded.

Such contentions require a resume of testimony involving the issues in question viewed most favorably from the standpoint of appellee. The following narrative of facts given by plaintiff is taken from appellant's brief: "At the time of the accident I was working as a cook at the Lambda Chi Fraternity House. I had been riding the Highland Park Street car about thirteen years. As the car approached Asbury Street I punched the button to signal the motorman to stop. The car stopped at the station at Asbury Street. When the car had stopped, I went to the back door and stood there. I stood on the trap and the door opened. I have never seen it open without someone on it. After the door was opened, I looked both ways and stepped down on the little step. It is about a foot wide. I did not see any other street car. I stepped off of that step onto the ground; then I made one or two steps. I can't remember so far back. I stepped down onto the step with one foot and then stepped off with the other foot on to the platform. Then I stepped forward one foot after the other. As to where I was when I first saw the street car, — when I knew anything I was struck. I don't remember ever seeing the street car. As I got out of the street car, there was a big post there to the left. It is just about the size of a telephone post. As well as I remember I believe it was about one foot from me as I got off. As the door opens, a portion of it stands out from the car. I don't know how many inches stands out. During the years I have ridden that street car, I have seen the southbound cars stop and wait while passengers unloaded from the northbound street car and got off of the track. They stop and wait all the time except that time I was getting off." On cross-examination plaintiff testified: "When the car stopped, I got up immediately and went to the back door. When I stood on the trap, the door in front of me opened. I stepped on the step and then got on the ground. I landed on the platform standing up and feeling all right. As I got off, I did not hear the bell of the car that was coming from the north. I did not hear it before I got off or after I got off. I never did hear it at any time. They have two tracks where the car stops. From then on it is a single track. If there was a car down there in sight, I could see the end of the car line if I looked. Before the car can go down there and come back, it waits until the other car gets there. I got off at the back end. I wasn't expecting to get hit. When I stepped off, I was hit. I was going toward S.M.U."

Chester Williams and Jestener Bagby, both passengers on the northbound car, and preparing to alight behind Minnie Graham, testifying in her behalf, made similar statements as to the manner of her exit. They did not hear the gong of said southbound car; Williams saying further that he had never seen it pass a standing car while passengers were being unloaded, save in this instance. He also stated: "As I stood in the door of the street car, there was a telephone post between the tracks that blinded me from seeing the car; also the door that opened on the street car, — the little piece that extends out from the car as you get on it was between the post and the car and I was entirely blinded." Another witness of plaintiff, Mrs. Jack Wareham, though on the southbound car at the time, did not hear the sound of its bell or warning gong.

Five witnesses on behalf of defendant (two passengers and three employees) testified that the bell of the approaching car was sounded, of whom Motorman Pou, on the southbound car, stated on cross-examination that rear car doors of street cars used on the line would not open by means of the treadle without some action on part of the car operative; that when the door opened with passengers standing on the treadle at a stop it was an invitation to get off; also testifying to a company rule that when the northbound car, situated as the one in question, was unloading people on its platform there, the southbound car was not supposed to pass until passengers had been discharged or "turned loose."

Plaintiff was thirty-six years old, of some two-hundred pounds in weight, and from the record appeared of normal sight and hearing.

That plaintiff cannot be chargeable with negligence as a matter of law, is demonstrated, we think, by her narrative of the occurrence; the result being that her acts and omissions as charged by defendant became issues of fact for the jury in their province of determining whether or not such claimant was exercising due care for her own safety at the time. 30 T.J., Sec. 153, p. 830.

Alternatively it is urged that the jury finding (issue 17 that plaintiff did not fail to listen) is either not supported by evidence, or is so clearly against the weight and preponderance thereof as to be manifestly wrong. This being so, appellant argues that the court's conditional submission of issue 18 (not excepted to) concerning plaintiff's failure to exercise ordinary care (in matter of listening) has precluded the jury from passing on her negligence in that respect as an issue of fact. It is to be noted that the burden of the issue was on defendant, and while specifically alleging a failure to listen, the point was sought to be developed by circumstantial evidence, such as plaintiff's failure to hear the street car bell. But whether the bell or gong sounded, was in itself a disputed fact in this record; Dixon v. Texas P. R. Co., Tex.Civ.App. 164 S.W.2d 252, Syl. 2; hence did not conclude the inquiry. A full disclosure from plaintiff of all facts and circumstances, involving among other things the extent of her listening or failure to listen on the occasion, was elicited by direct and cross-examination. We cannot say there was no evidence on the issue, but rather that legitimate inferences reasonably to be drawn therefrom would have supported a finding either way. The proposition is overruled.

Refused by the trial court was appellant's requested issue No. 1, of which subdivision (a) is quoted: "Do you find from a preponderance of the evidence that the plaintiff moved toward the east track without first ascertaining whether any street car was approaching from the north?" These issues in substance were given on first trial, and the controlling effect of our former decision is now invoked, the contention being that materiality thereof has been firmly established, there appearing no substantial difference in the testimony. But the second trial was on amended pleadings of both parties, with additional issues on contributory negligence; under which new submission we believe the particular issues may be reexamined for materiality. The "law of the case" does not necessarily apply where issues presented on the two different trials are by no means identical. Closner v. Gannaway, Tex.Civ.App. 55 S.W.2d 888, writ ref.; 3 Am.Jur. p. 542.

By reference to our former opinion, defendant's issues above were held proper on first trial because of certain evidence pertaining to plaintiff's alleged negligence. There, as here, defendant's general defense was based on allegations of plaintiff's delayed and hurried movement from rear car door to east track, without warning and unexpectedly, at a time when it had reasonably appeared to the operator of the approaching car that all passengers on the opposite car had unloaded and the platform cleared. On this statement of defensive facts, the specific acts of contributory negligence were pled.¹ Testimony was adduced in support of a sudden and delayed exit, to which the issues under discussion were deemed applicable. However, on the present trial and supplementing the jury finding (15) that plaintiff did not fail to keep a proper lookout for the southbound car, new issues and answers were, in effect: (17) that she did not fail to listen for approach of the southbound car; (20) that her failure to go toward Asbury Street or Hillcrest before proceeding in an easterly direction did not constitute negligence; and (23) that she did not fail to promptly alight from the northbound car after it stopped. It will be observed that the last-named issue (23) fully raised the jury question (omitted from former charge) of whether plaintiff's exit from car was prompt or belated, and thereby the trial court was justified in refusing the "ascertainment" issues of which complaint is made. The word "ascertain", in common usage, would mean to see or determine, and in legal significance has been defined as "To find out or learn for a certainty by trial, examination or experiment * * * to make sure by investigation." 4 Words and Phrases, Perm. Ed., pp. 341, 344, 345. Pughe v. Coleman, Tex.Civ.App. 44 S.W. 576. It occurs to us that the refused issues are wholly referable to defendant's theory of a sudden and delayed exit, and are therefore covered by given issue (24) of whether her failure to alight promptly was in turn a failure to exercise ordinary care; for it was only in event of a delayed exit that due precaution for her own safety could involve plaintiff's duty to actually determine the presence of the passing car. Refusal of defensive issues, effectually covered by other defensive issues given, is not error. See citation of cases, Texas Digest, Trial, 351(5).

On the other hand, plaintiff, as a passenger, promptly alighting by invitation on defendant's premises, with company rules restraining passage of southbound cars past the loading zone whilst passengers were being discharged, we do not think that, in the exercise of ordinary care, she was required to do more than look and listen for an approaching car; and, in the situation thus presented, the requested issues, even if given and answered in defendant's favor, should be disregarded. It may be contended that aforesaid look and listen findings extended merely to plaintiff's act of alighting, not inclusive of a similar duty as she moved to the east track. The issues, however, are not so worded and bear upon plaintiff's movements "at the time and on the occasion in question."

Moreover, the only means by which plaintiff could have ascertained the presence of defendant's car was by exercise of her normal senses in looking and listening; and defensive issues (answered in the negative) are in substance that plaintiff did not fail to keep a proper lookout, and listen for the southbound car. Thus a further defensive finding under said requested issues that she was negligent in failing to see or ascertain that the self-same car was approaching, would but have involved the hazard of another conflict.

Defendant's refused issue No. 5(a) inquires whether plaintiff failed to exercise ordinary care for her own safety in not keeping out of reach of the southbound car until it had passed; and would seem to be a restatement of its requested issue No. 1 just discussed, in that the inquiry relates to plaintiff's failure to see the car and thus keep out of its reach. Aside from this, the issue simply involves the effect of plaintiff's conduct at the time, i. e., of whether she should have done something other than move toward the east track, and is adequately covered in given defensive issue No. 20 of the court's charge: "Do you find from a preponderance of the evidence that at the time and on the occasion in question the failure of Minnie Mae Graham to go toward Asbury Street or Hillcrest Avenue before proceeding in an easterly direction, was a failure to exercise ordinary care?" to which the jury has answered "No." (Italics ours.)

After careful study we conclude that the points above considered should be overruled and the judgment of the trial court affirmed.

Affirmed.

¹ On first trial plaintiff was charged with failure to exercise ordinary care for her own safety (d) "in suddenly running toward the east track without first ascertaining whether any street car was approaching from the north"; and on this trial the same defense was alleged (d) "in suddenly moving to the east track without first ascertaining whether any street car was approaching from the north." (Italics ours.).