International & Great Northern Railroad v. Eckford , 71 Tex. 274 ( 1888 )

Walker, Associate Justice.

The appellee sued for dam. ages for personal injuries alleged to have been sustained near the station of Cotulla, upon the road of the defendant.

The defense was general denial, contributory negligence on part of plaintiff, and lease of defendant’s road to the Missouri, Kansas & Texas Railway Company. Judgment was rendered for two thousand nine hundred dollars, and the defendant appealed.

The decision in 68 Texas, 59, Railway v. Morris & Crawford, that a railroad in Texas can not lease the right to use its road so as to absolve itself from its duties to the public without legislative authority, disposes of all the assignments of error touching the alleged lease by the defendant.

Further complaint by appellant is that the law as to contributory negligence was not fully given; and error by the court in refusing charges applicable to the testimony and supplying the defects in the charge as given; that the duty of the defendant, as defined by the court, was more onerous than ¿hat prescribed by the law, and that the verdict was not supported by the testimony.

The circumstances of the injury, as stated in the testimony of the plaintiff, are as follows: “The train reached Cotulla at about two o’clock at night. The whistle blew, the conductor came through the car, and a lady asked him what station it was, and he told her it was Cotulla. The brakeman opened the front door of the car and called: ‘Cotulla.’ The train stopped, and I and several other passengers got up from our seats and started out of the car. Givens was with me. We went out on the platform. I caught hold of the railing and stepped off. The night was very dark, and I believed we were at the proper place to get off. When I stepped off I fell through the trestle to the ground below. I sustained an injury to my spine and a broken leg by the fall. * * * I got off the train because the whistle blew, the train stopped and the station was called, and I thought I was at the station. I did not know that the trestle was there. I had been to Cotulla twice before. Was never there during the day time, and when I was there before the train did not stop at the trestle. I put the satchel down on the platform and stepped down. I thought I was going to step on the ground, but went through the trestle. Ro warning of any kind was given me, and there was no light there. The man with the lantern had called c Cotulla,5 and I thought we were at the station, the proper place to get off.55 The trestle upon which the train was stopped was one hundred and fifty to two hundred yards from the station at Cotulla. The plaintiff was a passenger, and he was to stop at Cotulla. The instructions given by the court are full, clear and applicable to the case made by the testimony.

The instructions eleven and twelve, refusal of which is complained of, are objectionable. They encroach upon the province of the jury. Whether the acts and omissions in evidence constituted negligence without which the injury had not happened, was to be determined by the jury. “The common knowledge and experience of jurors, their acquaintance in the affairs of life, and the motives of men acting under different conditions, are especially called into request in determining such questions.55 (Pierce’s Law of Railroads, p. 318.)

The testimony was conflicting to an extent unusual even in this class of cases. The testimony given by the plaintiff is corroborated in all material details. On the other hand, every statement, save his fall and injury, is contradicted by witnesses called for defendant. It was for the jury to determine in this conflict. The verdict would be alike final had they found for defendant.

The effect to be given to the calling out of the name of the station when the train was halting was also a fact to be found —the calling itself only a fact to be considered with the other circumstances. Some courts have held it to be “an announcement by the railroad officers that the train is approaching or has arrived at the platform, and that the passengers may get out when the train stops "at the platform.” But on this courts conflict. (Railroad Accidents, p. 261.)

Finding no error in the record, the judgment is affirmed.

Affirmed.

Opinion delivered May 15, 1888.