ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GRESHAM, 167 S.W. 724

BROWN, C. J. 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 had a regular ticket, and took her seat in the car, where she remained seated until she reached her destination at Hills-boro. During the time she was on the train there was a rain that fell at some point not designated.

When the train reached Hills-boro the porter, or some one 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 ear 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 fell, 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 $6,000, and a new trial was 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 handholds 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 correctly refused to submit the matters suggested in special charge No. 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. I. & G. N. Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Allen v. Galveston City Railway Company, 79 Tex. 631, 15 S. W. 498. The limitation of such diligence to the operation of the ears 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.