GALVESTON, H. & S. A. RY. CO. v. STATE, 216 S.W. 393

GREENWOOD, J. • In this action the state recovered of plaintiff in error penalties of §5,000 for failure to comply, at Flatonia, with

article 6592, Vernon’s Sayles’ Texas Civil Statutes. The facts were not such as to authorize the court to instruct a verdict for plaintiff in error. With a right of way 150. feet wide on each side of the track, and a distance of some 225 feet from the passenger jiepot to Penn avenue, which is 80 feet wide, and a distance of some 219 feet from Penn avenue to the water-closets, making an aggregate distance of some 524 feet between the depot and the closets, it cannot be found, as a conclu sion of law, that the closets were within a reasonable and convenient distance of the depot.

It was for the jury to say, under the above-recited facts and all others in the record, whether the closets were within a reasonable and convenient distance. , The case presented no other issue of fact. Nevertheless the court instructed the jury to find a verdict for the state if they found that the railway company failed and neglected to maintain at its station, or dep'’t, or within its passenger depot, suitable and separate water-closets,, or if they found that the railway company failed and neglected to maintain such closets within a'reasonable and convenient distance from the depot.

Since the uncontradicted evidence showed that the railway company had failed and neglected to maintain any closets within its passenger depot, the first part of this charge was virtually an instruction to find for the state, regardless of how the real issue in the case might be determined. This error was not cured by the contradictory instruction to find for defendant, if the closets were within a reasonable and convenient distance from the station. Baker v. Ashe, 80 Tex. 361, 16 S. W. 36; M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 680, 36 S. W. 243.

The difference is patent between what is a convenient place at Flatonia and what is a reasonable and convenient distance from the passenger depot at Flatonia. As applied to water-closets for persons at a railroad station, a convenient place for same would be within the passenger depot, giving to the word “convenient” its common meaning of “easy of access.” In comparison with closets within the depot, those without same would not be at a convenient place. But the statute’s requirements- are met by closets without the depot and within a reasonable and convenient distance therefrom.

However convenient the location within the depot, such location would be neither reasonable nor sanitary in a town like Flatonia, without a sewer system. Hence the jury’s verdict that the railroad company was found “guilty for the sum of $5,000 for not having their closets at a convenient place at Flatonia, Texas,” does not find the facts essential to support the imposition of peftalties on plaintiff in error, under the statute and under the true and single issue in this dase.

It follows that the judgments of the district court and of the Court of Civil Appeals should be reversed, and the cause remanded to the district court for a new trial, and it is so ordered. <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes