St. Louis S.W. Ry. Co. of Tex. v. Preston , 194 S.W. 1128 ( 1917 )

As we view the record, the only issues made by both the pleadings and the evidence were one as to negligence vel non on the part of the train porter, and, if he was negligent, one as to the amount appellee was entitled to recover as damages for the injury he suffered. It conclusively appeared that the injury appellee sustained was due to his falling from the train. There was no evidence tending to show that, if he fell because the porter negligently shoved the box against him, negligence of his own co-operated and concurred with that of the porter in causing him to fall. Therefore the issue as to contributory negligence on the part of appellee made by the pleadings was not made by the testimony. Nor do we think the testimony made an issue as to whether the porter, if he, at appellee's request, in violation of appellant's rules, opened the door to the south side of the vestibule to enable appellee to alight from the train on that side, acted outside the scope of his duty as appellant's employé or not.

If it was the porter's duty to open doors of the vestibule at the station, it was not outside the scope of his employment to open the one in question, notwithstanding, in opening it, he may have violated appellant's instructions and rules. Burnett v. Oechsner, 92 Tex. 588,50 S.W. 562, 71 Am. St. Rep. 880; Ry. Co. v. Anderson, 82 Tex. 516,17 S.W. 1039, 27 Am. St. Rep. 902. The testimony of appellant's assistant superintendent, Hutchings, on its behalf, that it was the porter's duty to open vestibule doors at stations and assist passengers was uncontroverted.

The validity of the judgment depends, we think, upon the answers which should be made to questions, to wit: (1) Did the findings made by the jury authorize it? (2) Were the findings supported by testimony? If both questions should be answered in the affirmative, the judgment should be affirmed. If either should be answered in the negative, it should be reversed.

The jury found, as is shown in the statement above, (1) that the porter undertook to open the door for appellee and to aid him in alighting from the train with his box of whisky; (2) that in performing his undertaking the porter "negligently" caused the box to fall down the steps and against appellee, "thereby knocking him" from said steps; and (3) that his act in causing the box to fall down the steps was the proximate cause of the injury to appellee.

Unquestionably, we think, the findings specified established liability on the part of appellant to appellee, and authorized judgment against it for the damages he sustained as a result of his falling from the car.

The objections to the findings based on the questions they were answers to are, we think, not tenable. Neither of the questions was "confusing and misleading" or "on the weight of the evidence in assuming the existence of controverted facts."

That each of the findings specified was supported by testimony is shown by the record. Appellee, as a witness on his own behalf, testified, in effect, repeating much that is said in the statement above, as follows: At his request the porter agreed to assist him in getting off the train on the south side thereof when it reached Winfield. After calling that place, and before the train reached the station, the porter took appellee's box of whisky, and, accompanied by appellee, went to the vestibule of the coach. When they reached the vestibule the porter opened the door to the south side thereof, and placed the box on the floor, "right close up to the top" of the steps thereto on that side. Appellee took a position on the step above it, holding with one hand to the handrail of the coach, and resting his other hand on the box. While he was standing in that position, and while the train was still moving, the porter told him it was "time to get off," and with his foot shoved the box down the steps. The box, falling against appellee's legs, caused him to fall from the train. "I saw the porter push that box," appellee testified; "he just taken his foot this way and pushed it. He pushed it with such force until it knocked me off." Appellee's testimony was corroborated by that of the witness Spruill, whom the jury had a right to believe.

It is clear, we think, that the testimony referred to authorized the findings establishing appellant's liability to appellee. The fact that that testimony was contradicted in toto by the testimony of other witnesses is not a reason for reversing the judgment. As the accident could have happened as appellee said it did, we have no right, in face of the finding of the jury that it did happen that way, to say it did not.

It was the duty of the jury to determine the conflict in the testimony, and, they having determined it, their findings should not be set aside by us.

Other assignments in the briefs not in effect disposed of by what has been said are believed to be without merit, and are overruled.

The judgment is affirmed.

On Appellant's Motion for Rehearing. Notwithstanding it appeared from the uncontradicted testimony of its assistant superintendent and others who testified on its behalf that it was the porter's duty to open vestibule doors at stations and assist passengers in alighting from appellant's trains, appellant insists that we erred in holding that it appeared as a matter of law that the porter acted within the scope of his duty as such if he opened the door to the south side of the vestibule to enable appellee to alight from the train on that side.

The insistence is not based on a claim that there was any testimony showing it was not the porter's duty to do that, but on testimony showing that the porter's instructions were to open only doors to the sides of the vestibules next to stations, and to assist negro passengers in alighting from the train through those doors; and on testimony which appellant thinks shows that if the porter opened the door on the south side as claimed by appellee, and so violated his instructions, he acted in collusion with appellee, and should be held to have acted as appellee's agent and not in his capacity as porter.

It is, we think, plain enough, without discussion or a citation of authorities, that if the duty appellant devolved on the porter was to open vestibule doors at stations, it should not be heard to say, as against a passenger, that he acted outside the scope of his authority as porter when he opened a particular one of such doors, notwithstanding in doing so he may have violated its instructions.

The testimony relied upon as supporting the contention made, that if the porter opened the door as claimed he acted in collusion with appellee, was that of appellee as follows:

"I told him (the porter) I wanted to get off on the opposite side and wanted him to assist me in getting off, and he said he would."

Appellee further testified that at the time he made the request of the porter he thought a compliance with it would be against appellant's rules, and for that reason did not make it until after another porter and the conductor, who were in the coach as it approached Winfield, had left it.

We do not think the testimony referred to made an issue as to whether appellant was responsible for the conduct of the porter or not. Appellee was a passenger.

That he may have induced the porter to violate appellant's instructions in regard to opening vestibule doors did not relieve the porter of his duty as such to use care to avoid injuring him. Appellee was not injured because of the violation by the porter at his instance of appellant's rules. He was injured because of the negligent act of the porter in pushing the box against him; in other words, because of the failure of the porter to discharge the duty he owed to exercise care for appellee's safety while a passenger on the train. We do not think the principle applied in Grahn v. Ry. Co., 100 Tex. 27, 99 S.W. 104, 5 L.R.A. (N. S.) 1025, 123 Am. St. Rep. 767, cited by appellant as supporting its contention, is applicable to the facts here. Grahn was not a passenger on the freight train. He was on it without authority from any one authorized to accept him as a passenger, in violation of the company's rules, and in collusion with the conductor. He was a trespasser on the train, and the company owed him no duty it did not owe a trespasser.

The motion is overruled.