Houston E. & W. T. Ry. Co. v. Hooper ( 1916 )

The appellant requested, and the court refused to give, a peremptory instruction to return a verdict for the defendant company; and error is predicated upon the ruling of the court. Appellant bases the contention for error upon the insistence that the petition of appellee, properly construed, seeks recovery only upon the alleged act of negligence in permitting "some hard substance to be and remain upon the step of its passenger coach," proximately causing her to slip or fall from the steps, occasioning injury; and insists that the evidence fails to establish, as a matter of law, the alleged negligence, for that there is no evidence showing that such obstruction had been upon the step a sufficient length of time for the employés of appellant to have by reasonable care discovered same. It is believed the assignment of error should be overruled. The petition of appellee alleged three distinct acts of negligence, and there was ample evidence to carry the case to the jury upon one of the alleged acts, which was the failure to provide sufficient light to enable passengers to descend the coach steps in safety. And viewing the instruction as asking the court to instruct a verdict only in respect to the alleged act of permitting obstruction on the step, it is thought reversible errors cannot be predicated on the refusal to give such information. The jury made the affirmative finding of fact that Mrs. Hooper did not step on anything in getting off the coach, and that there was no obstruction on the platform to cause her to fall. The legal effect attaching to this finding was to find in favor of the defendant on this particular act of alleged negligence, and it must be assumed that the court gave that legal effect to the verdict, and did not rest the judgment for appellee upon that ground of alleged negligence. Consequently no injury would appear to the appellant by the refusal of the instruction.

By the second assignment of error it is contended that the appellant was entitled to a judgment in its favor on the finding of the jury that plaintiff did not slip upon or fall by reason of an obstruction on the step, because the other findings of the jury respecting the alleged acts of negligence were without any evidence to support them. It is believed the assignment should be overruled. It is not thought that there is insufficient evidence of an insufficiency of light and that such negligence proximately caused the injury. If the want of sufficient light, as appears, to enable the appellee to properly see the steps, caused her, in descending the steps, to place her foot on one of the steps as she did, whether on an obstruction or on the edge of the step, the jury were authorized to find, as they did, that the insufficiency of light was the producing or proximate cause of the injury.

By the third, fourth, sixth, eighth, and thirteenth assignments of error the appellant assails the verdict of the jury in respect to finding negligence proximately causing injury in not having sufficient light to enable appellee to alight safely, as being unsupported by and contrary to the evidence. It does not appear that appellant made a motion to set aside this finding of the jury, as must be done in order to predicate error on the action of the court in refusing to set it aside. Smith v. Hessey, 134 S.W. 256. And treating the assignments as a refusal of the court to grant a new trial upon the grounds stated, it is thought the assignments should be overruled, for there was sufficient evidence to support the finding of the jury, and the court would not be warranted in saying as a matter of law that there was no sufficient evidence to make an issue for the jury.

The fifth and ninth assignments of error pertain to the findings of the jury on the alleged act of negligence in not assisting the plaintiff from the train. We conclude that, had this been the only act of negligence alleged and proven, the appellee could not, on the record, sustain the recovery. Negligence is not, as a matter of law, in this respect proven. But eliminating these findings as not authorizing a recovery, there still remain findings of fact, supported by pleading and evidence, which in legal effect entitle appellee to the judgment rendered. The error of the court is therefore without injury to appellant, and does not warrant reversal. Rule 62a (149 S.W. x).

The tenth assignment of error complains of the refusal to give a special instruction regarding contributory negligence of Mrs. Hooper in getting off the train. The special charge practically assembled the same facts that the court's question authorized the jury to consider. The court submitted to the jury for finding, "Was the plaintiff Mrs. Hooper guilty of contributory negligence in attempting to alight from the said train in the manner and under the circumstances as she did?" The jury answered, "No." The question as submitted was sufficiently broad enough and enabled the jury to consider all matters properly arising in the evidence. This station was the destination of Mrs. Hooper, and it was her duty to leave the train at that point, and in leaving the train she was required to take her grip with her. If contributory negligence arises at all, it was, as submitted, respecting the manner and conduct of Mrs. Hooper in descending the steps.

The eleventh assignment of error complaining of the action of the court in giving special issues 4, 5, and 6 should be overruled, for it does not appear that "the ruling" of the court was excepted to; and, if it had been excepted to, the evidence made the issues for decision by the jury.

The remaining assignments present no error, and it is concluded should be overruled.

The judgment is affirmed.