Dallas Consol. Electric St. Ry. Co. v. Carroll
Dallas Consol. Electric St. Ry. Co. v. Carroll
Opinion of the Court
The statement of the case taken from appellant’s brief is: “This suit was instituted by appellee in the Fourteenth judicial district court of Dallas county, Tex., on January 23, 1909, for damages on account of personal injuries alleged to have been sustained by appellee on December 8,1908, while attempting to board one of appellant’s cars at a point on McKinney avenue where said avénue is intersected by Caroline street; the appellee alleging, in substance, that he was a resident citizen of Dallas county, Tex., and that the defendant, Dallas Consolidated Electric Street Railway Company, Incorporated, was a common carrier for hire, having its domicile, principal office, and place of business in the county of Dallas, state of Texas; that on December 8, 1908, the appellee was desirous of becoming a passenger - upon one of the cars of appellant and signaled said car to stop; that the motorman immediately checked the speed of the car and stopped it or brought it to almost a complete stop by the time it reached the place where appel-lee was, whereupon appellee, in the exercise of due caution, started to board said ear and caught hold thereon for the purpose of pulling himself up when, without any warning whatever to him, said car gave a sudden lurch or jerk forward and threw him violently to the ground on the hard paved street, and seriously crippled, injured, and bruised him on his shoulder, wrist, and knees. The defendant answered by general demurrer, general denial, and the following affirmative plea: ‘For further answer herein, if further answer be necessary, defendant says that if plaintiff was injured in any particular alleged by him, that when he attempted to board one of the defendant’s cars while *1166 the same was in motion, and that the manner and circumstances under which he so attempted to board same constituted negligence on his part, and that such negligence caused and contributed to cause any accident complained of herein.’ ” A trial resulted in a verdict and judgment for plaintiff for $760, from which this appeal is taken by the railway company. The allegations of the petition were sustained by the evidence and warranted the verdict and judgment, and appellant raises no question as to the sufficiency of the evidence.
Dr. O. H. Sherman, witness for plaintiff, testified: “When he developed this high fever I kept a nurse with him constantly. * * * She was a negro, and her given name was Marietta. She was a professional nurse. I have used her since then, but I do not think I ever used her prior to this case. She was a good nurse. Her duties were to follow the instructions that I gave. * * * I think we had this nurse there several weeks, I would judge about three weeks; it may have been longer; I would not say how much longer. I would consider that Mr. Carroll was getting her cheap if he didn’t pay her any more than $20 per week. It takes them three years to go through school, after which they work for their experience, and the customary price for it would have been $25 for a trained nurse.” This evidence was not only sufficient to sustain the charge, but was such as to require the giving of such a charge. Therefore the court committed no error in this respect.
The court charged the jury that “it was the duty of the plaintiff, upon such occasion, to exercise such care for his own safety as would have been exercised by a person of ordinary prudence under the same or similar circumstances, and the failure, if any, to exercise such care is contributory negligence. If you fail to find that plaintiff undertook to become a passenger upon defendant’s car as alleged, or if you find and believe from the evidence that the plaintiff in becoming, or attempting to become, a passenger upon defendant’s car, if he did, as alleged, failed to exercise such care for his own safety as would have been exercised by a person of ordinary prudence under the same or similar circumstances, and that such failure, if any, caused or contributed to cause him to be injured, then you will find for the defendant.”
Under the facts as adduced, we think the court’s charge on contributory negligence was sufficient. There is no appreciable difference between the court’s charge and the special charge requested; at least not such difference as to have misled the jury or in any way affected their verdict, and the assignment is overruled.
The foregoing two assignments are all presented by the appellant, and, finding no reversible error, the judgment is affirmed.
Reference
- Full Case Name
- Dallas Consol. Electric St. Ry. Co. v. Carroll. [Fn&8224]
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- Published