Missouri, K. & T. Ry. Co. of Texas v. Vaughan , 1915 Tex. App. LEXIS 829 ( 1915 )

⁸²²⁴ Writ of error pending in Supreme Court. Appellant by its second assignment of error predicates error upon the insufficiency of the evidence to support a finding of negligence, proximately causing injury, on appellant's part. And concluding, as we have, that this assignment should be sustained, it becomes unnecessary to consider the other assignments.

Carriers of passengers are bound to provide safe and convenient modes of access to their cars, and to stop a sufficient time to receive passengers at proper places. But that there was no evidence from which the jury could properly have found that the appellant failed to perform these duties which it owed appellee is in this case, we think, quite clear. The place at which the passenger coach was stopped does not by any evidence appear in the least way to be unsafe, inconvenient, or improper. Passengers, it appears, got off and on there without inconvenience, and easily and safely; and the place where the coach stood and the entry thereto were easy of access, it appears, to passengers. It is not contended that appellee did not have ample time to enter the coach in the usual way while it was at the point where the passengers were being discharged and received at the time. Appellee had his ticket, and was not hindered by the conductor, or by any one, from getting on the coach at the time. Appellee did not go into the coach at the time, simply for the reason that he believed, as he said, that the coach would be brought to the depot platform for passengers to board it. There is an utter absence of any evidence, though, to show that appellee was induced by any act or statement or practice or custom of the agents of appellant to believe that such stop was not for the regular and usual purpose of receiving passengers and that the coach would be brought to the depot platform for the purpose, which was between 20 and 30 feet distant from where it was at the time. According to the record it was the invariable rule and custom at that station, after passengers had been discharged and received, to back the coach and caboose west across the public road, and not thereafter stop it at the platform to receive and discharge passengers. Therefore, the evidence showing, as it does, that the company had provided a reasonably safe way and afforded appellee ample time to get into the coach, and had established and used only one mode and rule for its train to leave the station after discharging and receiving passengers, and there being no deviation from the usual custom of final departure of the train from the station after discharging and receiving passengers, misleading appellee as to when and where he should board the train, and appellee seeing that passengers were being discharged and received at the place where they were being so discharged and received, appellant would not be responsible, by reason of any negligence on its part, for the consequences of appellee's voluntarily using another way, of his own choosing, in attempting to board the train. The facts of this case, in essential points, distinguish it from the case of Mills v. Railway Co., 94 Tex. 242, 59 S.W. 874, 55 L.R.A. 497.

The judgment is reversed, and here rendered in favor of appellant, with costs of the district court and of this appeal.