St. Louis Southwestern Railway Company of Texas v. Lucille Gresham, 106 Tex. 452

Me. Chiee Justice BROW3ST delivered the opinion of the court. This suit was instituted in the District Court of Hill County by J. R. Bragg as the next friend of Lucile Gresham, against the St. Louis Southwestern Railway Company of Texas, in which it was charged that Lucile Gresham took passage on the defendant railroad at a station named Frost, in Navarro County, to go to Hillsboro, in Hill County. She bad a regular ticket and took her seat in the car where she remained seated until she reached her destination at Hillsboro.

During the time she was on the train there was a rain that fell at some point not designated. When the train reached Hillsboro the porter, or someone in the employ of the railroad company, directed her to leave the car, as that was the station of her destination.

That when she reached the platform of the car and started to descend the steps leading therefrom to the ground she found the steps to be wet and slippery, a large amount of water and mud having accumulated thereon, and on account of the condition of the steps she slipped and fell, striking her back on the steps and sustaining severe and permanent injuries.

In her petition she claimed $25,000 damages, and charged that the condition of the steps constituted negligence on the part of the railroad company and was the cause of her injury, which occurred in this wise: When she started down the steps her feet slipped from under her, and she -felly striking the lower part of her back upon one of the steps, whereby she was greatly injured and suffered great mental and physical pain.

The negligence charged was in the failure to keep the steps upon which the passengers were to descend in a safe condition, and the proof was sufficient to authorize the jury to conclude that the dirt had accumulated upon the steps of the car through the neglect of those charged with the care-of it, and that the rain which had fallen had caused the dirt so accumulated to become slippery and render the steps unsafe. The jury could have found that there was an iron rod extending down the side of the car and above the steps to which she might have held with her hand, and which she did not do.

The defense of the railroad company was negligence on the part of Miss Gresham in failing to take proper care in descending the steps, i. e., that she failed to look and see the condition of the steps before she put her. foot on the step, and failed to avail herself of the rod which would have supported her and prevented her falling. The trial resulted in a judgment in favor of the plaintiff for $6000, and a new trial wras denied by the court on the application of the railroad company.

The judgment of the District Court was affirmed by the Court of Civil Appeals, and this court granted a writ of error upon the ground that the District Court erred in giving the sixth paragraph of its charge, and also in refusing to give the second paragraph of the charge requested by the railroad company.

The evidence was sufficient to sustain the finding of the jury that the railroad company was negligent in permitting the steps to be in the condition in which they were at the time that Miss Gresham was injured, and we find no reason for disturbing the judgment of the District Court and the Court of Civil Appeals, unless it be in respect to the matters designated in the granting of the writ of error as above stated. We will, therefore, proceed to the examination of those questions of law.

The sixth paragraph of the court’s charge reads: "Even though you may believe from the evidence that the defendant was guilty of .negligence in respect to the issues submitted to you in paragraph two of this charge, still if you believe plaintiff was guilty of contributory negligence, as that term is hereinbefore defined, in not holding to the hand holds attached to said coach near the steps in question, which directly or proximately contributed to her injury, if she was injured, you will return a verdict for the defendant.” The charge correctly states the law applicable to the facts, and correctly submits to the jury the only act of contributory negligence which is suggested by the evidence, and the court tiorreetly refused to submit the matters suggested in special charge Eo. 2 requested by the defendant, because there was no evidence to support it.

The court correctly states the measure of diligence which the law requires' of passenger carriers, that is, the high degree of diligence which would be exercised by very prudent persons under similar circumstances. International & G. E. Ry. Co. v. Halloren, 53 Texas, 46; Allen v. Galveston City Railway Co., 79 Texas, 631. The limitation of such diligence to the operation of the cars would be unreasonable and without' support in the law. We find no error in the proceeding of which plaintiff in error can complain, and the judgment is affirmed. Affirmed.