Texas & Pacific Railway Co. v. Overall , 82 Tex. 247 ( 1891 )

GAINES, Associate Justice.

The appellee was a passenger on the train of the appellant railway company. The train having stopped at a station, and the door of the car in which he had been riding being opened and fastened, he took position on the platform with his hand resting upon the jamb upon which the door was swung and with his little finger inside the cleat against which the door fitted when closed. . As he testified, while standing in that position a brakeman entered the car and suddenly closed the door. The end of his finger was caught between the door and cleat and was injured. The brakeman denied that he shut the door, and testified that it was closed by a woman, who did it in order to enter the water closet. The appellee also testified, “the man who shut the door could see me and see where my hand was when he shut the door.”

The appellee having obtained a verdict and judgment upon the facts as stated, the appellant made a motion for a new trial, which was overruled.

One ground of the motion was, that the plaintiff was negligent and that his negligence contributed to the injury. Another was, that the evidence did not show negligence on part of the company. These questions are now presented to us by proper assignments.

It seems to us that the act of the defendant in placing his hand in such a position upon the jamb of the door that it would certainly be injured by any one closing the door was an act of negligence. The door, though “securely fastened,’’ was capable of being suddenly closed, and was likely to be closed by either passengers or employes of the company, and especially by persons who desired to enter the water closet of the car.

But should it be conceded that the plaintiff was not negligent, the verdict is still without sufficient evidence to support it. The evidence authorized the jury to find that the brakeman was the person who closed the door; but there was nothing to show that in doing so he was guilty of negligence. . If in fact he had seen the position of the plaintiff’s finger and had then closed the door regardless of the consequences, even the negligence of the plaintiff would not have exonerated the' company from liability for the injury. Where one negligently places himself in a dangerous situation, and another discovers his danger in time to avoid the injury, it becomes the duty of the latter to exercise due care to avoid it. But the fact that the brakeman could have seen the dangerous position of the plaintiff’s finger does not prove that he did see it. If we are to resort to presumptions, the presumption is in favor of his innocence. The fact being essential to the plaintiff’s recovery, the burden was upon him to establish it. If it had been the duty of the brakeman to see that the plaintiff was taking proper care of himself, the fact that he could have discovered the danger would have been material. But such was not the brakeman’s duty. He had the right to presume that the plaintiff was conducting himself with prudence, and it was not his duty to see that such was the fact.

Delivered November 18, 1891.

For the refusal of the court to grant a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.