Southern Traction Co. v. Reagor

^* Application for writ of error pending in Supreme Court. By the first and second assignments of error appellant contends that actionable negligence may not, in the facts of this case, be predicated upon the act of the conductor in undertaking to place the child upon the car platform. As to whether a duty arises for the employes of the railway company to assist passengers to board the car is a question for the determination of the jury upon the consideration of all the circumstances in the case. Railway Co. v. Miller, 79 Tex. 78, 15 S.W. 264,11 L.R.A. 395, 23 Am. St. Rep. 308; Railway Co. v. Buchanan,31 Tex. Civ. App. 209, 72 S.W. 96; Hanlon v. Railway Co., 187 N.Y. 73, 79 N.E. 846,10 L.R.A. (N.S.) 411, 116 Am. St. Rep. 591, 10 Ann.Cas. 366. The duty to furnish assistance might arise under special circumstances. McGovern v. Interurban Ry. Co., 136 Iowa 13, 111 N.W. 412, 13 L.R.A. (N.S.) 476,125 Am. St. Rep. 215. Here a mother and her two small children presented themselves for transportation on appellant's car, and the evidence is undisputed that the conductor assisted one of the children to the platform of the car. The conductor furnished the assistance for the reason given in his testimony as follows:

"In placing the child upon the platform my purpose was to assist passengers to get on the car. * * * I took the child to assist it and its mother on the car."

And as to whether the conductor negligently placed the child upon the car platform the evidence was conflicting. The evidence in behalf of the appellees would show that the conductor placed the child on the car platform with its feet only partially upon the platform, and that as he withdrew the support of his hands the child immediately fell backward down the steps of the car. The conductor himself, it would seem, concluded that the situation was such as to make it necessary and proper for him to furnish assistance and to take the child from its mother's arms and place it on the car platform. It is believed that there is sufficient evidence to authorize the jury to find that the situation was such as to warrant the conductor in furnishing assistance to the child and its mother in getting upon the car.

By the third assignment of error it is contended that the responsibility of the company for the conductor's negligence is not to be measured by "that high degree of care which a very prudent and cautious person would exercise under the same circumstances," as charged by the court, but only by ordinary care. It is believed that where, as here, the company, acting through its conductor in the scope of his employment, undertakes to assist a passenger on board the car, the passenger had the right to rely on the careful performance of such undertaking, and may recover of the company for injuries caused by the failure of such employé to use the highest degree of care, as was charged by the court. Railway Co. v. Wolf, 40 Tex. Civ. App. 381, 89 S.W. 778; Railway Co. v. White, 22 Tex. Civ. App. 424, 55 S.W. 593; Railway Co. v. Finley,79 Tex. 88, 15 S.W. 266; Railway Co. v. Wortham, 73 Tex. 25, 10 S.W. 741,3 L.R.A. 368; Railway Co. v. Kennedy, 12 Tex. Civ. App. 654, 35 S.W. 335.

It is contended under proper assignments of error that the proximate cause of the injury to the child's hip were intervening agencies independent of the fall. In this respect the instant case is dissimilar in facts to the case of Traction Co. v. Nenney, 178 S.W. 797. And it is believed that the state of the evidence is such as to make the question of proximate cause one for the jury, whose decision in that respect must, it is concluded, be sustained. Therefore assignments of error numbered 4, 5, 6, and 14 are overruled.

By the thirteenth assignment of error it is contend I that the court erred in overruling the plea of limitation to damages for hernia set up for the first time more than two years after the date of the injury. This error is without injury to appellant; for the charge did not authorize the father to recover compensation except as arising from dislocated hip and consequent shortening of the leg of the child, and the father did not recover anything on account of alleged hernia.

There is evidence to support the finding of the jury that the fall of the child was not an accident, and the sixteenth assignment of error is therefore overruled.

The remaining assignments of error have been considered, and the conclusion is reached that reversible error is not presented; they are therefore each overruled.

Judgment affirmed.