
    NEVILL v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 8102.)
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1919.
    Rehearing Denied May 3, 1919.)
    1. Caeeiebs <&wkey;278(l) — Passengers — Refusal to Stop Train — Negligence op Railroad — Jury Question.
    In action for damages for railroad’s failure to stop train upon signal by passenger with ticket entitling him to passage thereon, the question of whether the railroad employés were negligent was for the jury.
    2. Carriers <&wkey;277(l) — Passengers—Failure to Stop Train — Liability op Railroad.
    Where railway employés were negligent in failing to stop train at station upon signal of passenger having ticket entitling him to passage upon train, a passenger is entitled to damages for injuries naturally resulting by reason of such negligence.
    3. Carriers <&wkey;278(l) — Passenger—Failure to Stop Train — Contributory Negligence —Jury Question.
    Whether passenger, who had been deprived of passage on train by negligence of train em-ployés in failing to stop upon signal, was negligent in not securing lodging in town where he signaled train, instead of walking ten miles to neighboring town, held a question for the jury.
    4. Carriers <&wkey;278(l) — Passengers — Failure to Stop Train — Contributory Negligence-Jury Question.
    Whether passenger, who had been deprived of passage upon train by negligence of train em-ployés in failing to stop train upon signal, was negligent in walking to next station for lodging along the railroad tracks, instead .of traveling the dirt or wagon road, held for the jury.
    5. Carriers &wkey;>265 — Passengers — Failure to Stop Train Upon Signal — Duty op Passenger.
    Where train employés negligently failed to stop train upon passenger’s signal, it was passenger’s duty to exercise ordinary care and prudence to prevent injury to himself as result of railroad’s negligence.
    6. Trial <&wkey;139(l) — Taking Case prom Jury —Evidence.
    Where evidence is not so conclusive that minds of ordinary intelligence would be of one opinion, the matter should be submitted to the jury.
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by John A. Nevill against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Callicutt & Johnson, of Corsicana, for appellant.
    E. B. Perkins, of Dallas, and Richard Mays, of Corsicana, for appellee.
   RAINEY, C. J.

Appellant sued appellee to recover damages for. personal injuries caused from the negligence of appellee on September 5, 1915.

“Appellant alleged; That on said date he became a passenger on appellee’s train, from Ke-rens to Corbet, Tex., having purchased a round-trip ticket, and took the morning train on said date from Kerens to Corbet, with the expectation of returning from Corbet to Kerens on the night train, which train was due at Corbet at about 10 o’clock p. m., Corbet being a flag station, and on the night in question appellant in due time went to the station at Corbet and signaled the train, as it approached Corbet, to stop, but the engineer and those-in charge of the train negligently failed and refused to stop same,'and went through Corbet at a very rapid rate of speed, so that he could not board same. That Corbet was a small village, had no depot, but simply a shed for a station, had no hotel or boarding house, and appellant had no place where he could spend the night, and, there being no other train due that night, he was therefore compelled to- walk to Corsicana, ■a distance of about eight miles. That appellant had a ticket entitling him to transportation on said train, and it 'was the duty of those in charge of said train to stop same when signaled so to do by appellant. That appellant was a man about 62 years old, not in very good health, and the walk caused him great inconvenience, and he suffered pain and illness as a result therefrom.”

The defendant answered by general demurrer, general denial, and specially pleaded that plaintiff was guilty of contributory negligence in walking to Corsicana, instead of procuring lodging in Corbet for the night; in failing to give proper signals on approach of the train; and in walking the railroad track instead of the dirt or wagon road from Corbet to Corsicana.

Plaintiff denied each act of contributory negligence as alleged, etc.

The case was submitted to a jury, and at the conclusion of the evidence the court gave the jury peremptory instructions to return a verdict for the “defendant,” which was done, and the plaintiff appeals.

Appellant’s first assignment of error is:

“The court erred in instructing the jury to return a verdict in favor of the defendant, because the evidence showed that the plaintiff had a ticket entitling him to transportation on defendant’s train from Corbet to Kerens; that he was at the station at Cox-bet and signaled the train to stop; that said station was a flag station, and the engineer and the operators in charge of said train negligently failed to stop samé and did not permit plaintiff to board said train, as he had the lawful right to do, and the defendant owed him the duty of stopping so that he could become a passenger thereon; and that plaintiff suffered damages by reason thereof, as alleged and proved, and the issue as to whether or not the defendant company was negligent, and also the issue as to whether or not the plaintiff had suffered damages, should have been submitted to the jury for their determination, and the court should not, as a matter of law, have found that the defendant was not negligent and that the plaintiff had suffered no damages by reason of the negligence of the defendant.”

And contends that — ■

“It was fundamental and reversible error for the trial court to peremptorily instruct the jury to find for appellee, the evidence of appellant and his witnesses clearly showing, in conformity with the allegations in his petition, that ap-pellee was negligent in failing to stop its passenger train at Corbet so that appellant could become a passenger thereon, and that as a proximate and direct result of said negligence appellant, without fault on his part, suffered actual damages, as pleaded and proved by him.”

We do not agree with appellant that the instruction is fundamental error, but we are of the opinion that the evidence is sufficient to raise the question of negligence of the part of the railway operatives in not stopping-the train on the signal of appellant. If appellant had, as he claims, a round-trip ticket, he was entitled to transportation on that train; and, if the railway operatives were negligent in depriving appellant of an opportunity to board the train, appellee is liable for the injuries naturally resulting to appellant by reason of such negligence.

The appellee contends that appellant was guilty of contributory negligence in not securing lodging at Corbet and staying there all night. There was evidence showing that appellant made two efforts to engage lodging at Corbet and failed. Whether such efforts were sufficient to relieve him of negligence was an issue that should have been submitted to the jury, and it was error in the court in not so doing.

The appellee also contends that appellant was guilty of negligence in walking from Corbet to Corsicana along the railroad tracks, instead of traveling the dirt or wagon road between the two points. The evidence shows that appellant was a stranger at Corbet, unacquainted with the roads between the two places. The night was dark, and he testified that he could not see well, and he was afraid he would miss his way if he undertook to go over the dirt road to Corsicana. This testimony raised the issue of whether or not he was guilty of contributory negligence in traveling the railway track instead of the dirt road, and the court erred in not submitting it to the jury.

If under the facts, which were for the determination of the jury, appellee was not guilty of negligence in failing to stop the train for appellant to board it, appellant is not entitled to damages; hpwever, if the railway company was guilty of negligence in not stopping the train, then appellant, if not guilty of contributory negligence and was injured was entitled to such damages as he suffered that naturally flowed from such negligence of appellee.

Under the circumstances, it was incumbent upon appellant to exercise ordinary care and prudence to prevent injury to himself. If the jury found the railway company was guilty of negligence in not stopping its train for appellant, this court cannot say as a matter of law that the appellant was guilty of negligence in walking down -appellee’s railway track, but that this, together with all other propositions in the case, were questions for the determination of the jury.

The evidence in the case was not so conclusively one way — that is, for the appel-lee — that minds of ordinary intelligence would be of one opinion, so that matter was for the jury’s determination, and the court erred in not submitting it to the jury. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

The judgment is reversed, and the cause remanded. 
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