
    ST. LOUIS, S. F. & T. RY. CO. v. GIBSON.
    (No. 2111.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 3, 1919.)
    1. Carriers @=333(1) — Passengers—Personal Injury — Negligence — Contributory Negligence.
    If a passenger, while alighting from a train, was negligent in not looking to see the position of the step box, and such negligence contributed to her injury, she cannot recover, notwithstanding defendant’s brakeman was also guilty of negligence, which was a proximate cause of such injury.
    2. Carriers @=349 — Injury to1 Passengers— Alighting from Car — Contributory Negligence — Verdict.
    In an action by a passenger to recover for personal injuries received while alighting from defendant carrier’s ear, a verdict and findings held not to warrant a judgment for plaintiff in view of findings showing plaintiff’s failure to exercise ordinary care.
    3. Carriers @=339 — Passengers—Personal Injury — Contributory Negligence — Proximate Cause.
    In a passenger’s action against a carrier for injuries received while alighting from a train, where the jury found plaintiff negligent in failing to look to see the position of the step box, such negligence was the proximate cause of the injury suffered, and a contrary finding of the jury must have been the result of a misapprehension of the jury.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Suit by Mrs. Maude Gibson against the- St. Louis, San Francisco & Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    In alighting from one of appellant’s passenger trains, on which, she had traveled to Marilee, appellee fell and thereby was injured. On the theory that appellant’s brakeman was guilty of negligence (1) in placing a box for her to step on in alighting from the train, and (2) in not properly assisting her in alighting therefrom, which rendered appellant liable to her in damages for the injury she suffered, appellee sued appellant and recovered the judgment for $3,750 from which the appeal is prosecuted.
    Appellant denied that its brakeman was guilty of negligence as charged, hut insisted, if he was, it was not liable to appellee, because she also was guilty of negligence which caused or contributed to cause the accident, in that (1) she walked down the steps of the car “without properly exercising her faculties,” and (2) “permitted her dress to drag or train behind her as she went down said steps,” and was caused to fall by reason of the fact that another passenger- stepped thereon.
    The court submitted special issues to the jury, and by a verdict returned February 9, 1918, they made findings as follows: (1) Appellee fell and was thereby injured. (2) The injury was a temporary one. (3) The step box was placed in such a position as to be reasonably safe for her use in alighting from the car. (4) The brakeman was guilty of negligence in placing said step box in the position it was in. (5) His negligence in so placing the step box was a proximate cause of the injury to appellee. (6) It was reasonably necessary for the brakeman to assist appellee in alighting from the train. (7) He did not assist or attempt to assist her. (8) And for that reason was guilty of negligence. (9) Which was a proximate cause of the injury to appellee. (10) In alighting from the train appellee did not look to see the position of the. step box. (11) Her failure to do so was negligence on her part which caused or contributed to cause the injury she sustained. (12) Appellee did' not permit her dress to drag or trail behind her while going down the steps of the ear to alight therefrom. (13) And she was not caused to fall because another passenger stepped on her dress as she moved down the steps of the car. (14) Appellee exercised ordinary care for her own safety in attempting in the manner she did to alight from the train. (15) She was damaged in the sum of $3,750.
    Because he thought there was a conflict between (1) the findings numbered 3 and 4 above, (2) the findings numbered 3 arid 5, and (3) the findings numbered 11 and 14, the trial court declined to receive the verdict, and directed the jury to further consider the matter of their answers to the issues submitted to them. February 11, 1918, the jury returned another verdict, in which their findings were like those in their first verdict specified above, except that in their, last verdict (1) their third finding, to the contrary of their finding in their first verdict, was that the step box was not placed in such a position as to be reasonably safe for use by the appellee in alighting from the train; (2) their eleventh finding, to the contrary of their finding in their first verdict, was that the failure of appellee to look to see the position of the step box as she alighted from the train was not negligence on her part which caused or contributed to cause the injury to her; and (3) their fourteenth finding, contrary to their finding in their original verdict, was that appellee failed to exercise ordinary care for her own safety in attempting as she did to alight from the train. In their last verdict the jury further found, in reply to questions propounded to them that which they did not answer in their first verdict: (1) That appellee’s failure to exercise ordinary care for her own safety in alighting from the train as she did did not cause or contribute to cause the injury she suffered; and (2) that the injury she sustained was not the result of an accident.
    Appellant excepted to the action of the court in refusing to receive the first verdic-t, and in overruling its motion to enter judgment thereon in its favor. It complains on this appeal of the action of the court in those respects, and' also of the action of the court in rendering judgment for appellee on the verdict last returned by the jury.
    MeReynolds & Hay, of Sherman, for appellant.
    Webb & Webb and Wood, Jones & Hassell, all of Sherman, for appellee.
   WILLSON, O. J.

(after stating the facts as above). We are inclined to think, the trial court erred when he refused to receive the verdict first returned by the jury and to render judgment thereon in appellant’s favor. If appellee, in alighting from the train, was guilty of negligence (in that she did not look to see the position of the step box) which caused or contributed to cause, the injury she suffered, as the jury by their tenth and eleventii findings in said verdict determined she was, then she was not entitled to recover anything of appellant, notwithstanding its brakeman also was guilty of negligence which was a proximate cause of said injury. Therefore the fact that the findings in said verdict with reference to issues of negligence vel non on the part of appellant’s- brakeman may have been, uncertain or contradictory was not a reason why the verdict should not have been received and judgment thereon rendered that appellee take nothing by her suit. As' we construe said verdict, the fourteenth finding (that appellee exercised ordinary care for her' own safety in alighting from the train as she did) was the only one in it which furnished even a pretense of a reason for doubting that an effect of the findings was to determine that appellee was guilty of negligence which was a proximate cause of the injury she sustained. That find-’ ing harmonizes with the tenth and eleventh, when construed as a finding that appellee was not guilty of negligence in the other respect charged against her, to wit, that she permitted her dress to drag on the steps of the car as she walked down same; and we are inclined to think it should be so construed. 38 Oyc. 1930.

But if it should not be, and if the trial court therefore did not err when he refused to receive that verdict and render judgment thereon as suggested, we are of the opinion, nevertheless, that the judgment should be reversed; for we think the findings of the jury in the second verdict on the issue of contributory negligence on the part of appellee were not more certain than were the findings in their first verdict on that issue. As noted in the statement above, the fourteenth finding in the second verdict was that appellee failed to exercise ordinary care for her own safety in attempting in the manner she did to alight from the train. That meant, of course, that in attempting in the manner she did to alight from the train she was guilty of negligence. Now, the manner in which appellee attempted to alight from the train, according to the findings, was to walk down the steps of the car and step therefrom to the step box without first looking to see its position on the ground. Therefore the jury must have meant, when they found appellee to have been guilty of negligence in the manner in which she alighted from the train, that she was negligent because she did not look, before stepping upon it, to see the position of the step box.

If she was negligent in that respect, it must have been because a reasonably prudent person under the circumstances would have looked to see the position of the box before stepping upon it. If a reasonably prudent person would have done that, it must have been because such a person would have anticipated that in stepping for the box without looking to see its position he might miss it, or so step on it as to cause it to turn or tilt, as it did with appellee. If a reasonably prudent person would have anticipated such a result, and the jury in effect found he would, it should, we are inclined to think, be held as a matter of law that the negligence of which the jury found appellee to be guilty was a proximate cause of the injury she suffered, and therefore that the finding of the jury to the contrary must have been the result of a misapprehension on their part of the definition of “proximate cause” contained in the court’s instructions to them. It would follow from this view of the findings in the second verdict, that judgment thereon should have been rendered for appellant, because it appeared that appellee was guilty of negligence which was a proximate cause of the injury she suffered; and we would be inclined to think such a judgment should have been rendered, but for the eleventh finding in that verdict, to wit, that appellee was not guilty of negligence which, caused or contributed to cause the injury she sustained, because she did not look to see the position of the box before she stepped on it. If that finding means that she was not guilty of negligence in that particular, then clearly, we think, it is contradictory of the fourteenth finding in the same verdict. If it means she was guilty of negligence in the respect 'indicated, but that the negligence was not a proximate cause of the injury, we are inclined to think the contrary of the conclusion, that the negligence was not a proximate cause, appeared as a matter of law.

In any view which, as we see it, reasonably can be taken of the findings in the last verdict, they ought not to be treated as a sufficient support for the judgment rendered. Therefore the judgment will be reversed, and the cause will be remanded for a new trial. 
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