
    MISSOURI, K. & T. RY. CO. OF TEXAS v. VAUGHAN.
    (No. 1465.) 
    
    (Court of Civil Appeals of Texas. Texarkana.
    June 22, 1915.
    Rehearing Denied July 1,1915.)
    CaRRiehs <&wkey;287 — Personal Injury —Taking up Passengers.
    A carrier is bound to provide a safe and convenient mode of access to its cars and to stop a sufficient time to receive passengers at proper places; but, where it provided a reasonably safe way and afforded plaintiff ample time to board its car, and had not misled plaintiff as to its method of leaving the station or as to when and where he should board the car, it was not liable for injury to plaintiff in attempting to board the train at a different place after it had started.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. &wkey;287.]
    Appeal from District Court, Rains County.
    Action by J. D. Vaughan against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    This is an action brought by appellee to recover damages for personal injuries received by him while attempting to get upon a moving train of appellant’s for the purpose of taking passage thereon. Considering the trial amendment in connection with the petition, the appellee alleged, by intendment, the negligence to consist in stopping the passenger coach at a point below the platform of the station, in deviation of its usual custom, misleading appellee in regard to where he was expected to get on board, and in so operating the train, as appellee attempted' to board it, as to cause a sudden jerk forward, throwing him from the steps of the train onto the ground.
    The local train, consisting of ten freight cars, a caboose, and a passenger coach, arrived at Emory on the day of January 11, 1913, on its regular east run to Mineóla. It remained at Emory for about 35 minutes. When the train reached and made its stop at Emory the passenger coach rested at a point between 20 and 30 feet from the end of the platform of the depot building, a public road intervening between the west end of the platform and the east end of the passenger coach. As soon as the train stopped there the conductor placed the step box in position by the steps of the coach, and discharged from the coach two passengers for Emory and received several passengers outbound, and a trunk was loaded into the coach as baggage. The train remained there between two and three minutes. The conductor then took up the step box from the ground and placed it on the platform of the coach, and the train was backed west just far enough for the coach and caboose to clear and leave unobstructed the public road. The engine and freight ears were detached from the coach and caboose and pulled forward. Freight for the station was then unloaded, and a car placed at the-stock pen, distant between 80 and 90 yards-from the depot building. After finishing all work for the station the engine and freight cars were coupled to the coach and caboose, and the conductor, standing on the depot platform, signaled the engineer to proceed to leave the station on final departure. Ap-pellee had cóme to Emory from Alba on a previous train, and had a return ticket, and was to take this train to his home. Appellee arrived at the depot while the conductor was discharging and receiving the passengers, but did not see, as he says, passengers getting on and off the train, but did 'see the conductor, between 20 and 30 feet from-the end of the depot platform, take up the step box and place it on the platform of the coach. Ap-pellee says he did not notify the conductor, or any agent there of the appellant, that he-wanted to get on the coach, nor did he go to the coach or to the conductor and offer to get on the coach; for, as he says, “I in my own mind knew that it was going to the depot before it left.” But appellee does not say or claim that he obtained this information from the conductor or from any agent of appellant’s, nor did he make any inquiry of the conductor or of any agent of appellant’s in regard to whether passengers would or would not be received or the passenger coach be placed at any other place. Appellee testified:
    “When they spotted that car at the stock pen-I went over there to look at a cow that was in that car; I had been looking at the stock. When I first heard the train or found it was starting to move east I was between the stock pen and the depot; I was about ten steps from the stock pen; and when I heard that I broke and run towards the east end of the depot. I saw the conductor board the train up opposite-the door of the station, and I was right at the end of the platform when the conductor caught it. * * * The train was going east. I turned around and took a few steps after the train, and I caught with my right hand the corner rod of the caboose; I never did get hold with my left hand ; I never did get but one hand hold of it; I never did get on the step- of the car; I missed the step, or jerked loose before I got to it. * * * I didn’t run along after I got hold of that handhold; I just caught it and it jerked me off the ground — jerked loose from me.”
    There is no evidence of any jerk unusual to the ordinary movement of a mixed train. Appellee in his depositions in evidence explains his fall as follows:
    The train “was going more than as fast again that I thought. When I come to think about it, from where it started it had a right smart little start; and it is a little bit down grade there,”' and I “misjudged the speed of the train” and “missed the steps of the train, and the weight of my body jerked my hand loose.”
    The evidence of the record is entirely consistent, and not in any way inconsistent with the explanation given by appellee in his depositions as to the cause of his fall and: consequent injury. The invariable rule and custom, it was shown, when the local arrived at Emory, was to first either stop the coach at the public road or tbe depot platform and discharge and receive passengers and then back the coach and caboose west across the public road and leave them there while freight was being unloaded, and after unloading all freight to couple the freight cars and engine back to the coach and caboose and immediately leave the station and not stop at the platform. No evidence appears to the contrary. It was shown without dispute that the public road next the platform was a safe and easily accessible place to passengers alighting from and embarking on the train.
    Chas. C. Huff, of Dallas, for appellant. J. M. McLeod, of Greenville, O. H. Bodes, of Emory, and T. E. Ragsdale, of Greenville, for appellee.
    
      
       Writ of error pending in Supreme Court.
    
   LEVY, J.

(after stating the facts as above). Appellant by its second assignment of error predicates error upon the insufficiency of the ■evidence to support a finding of negligence, proximately causing injury, on appellant’s part. And concluding, as we have, that this ■assignment should be sustained, it becomes unnecessary to consider the other assignments.

Carriers of passengers are bound to provide safe and convenient modes of access to their cars, and to stop a sufficient time to receive passengers at proper places. But that there was no evidence from which the jury could properly have found that the appellant failed to perform these duties which it owed ■appellee is in this case, we think, quite clear. The place at which the passenger coach was stopped does not by any evidence appear in the least way to be unsafe, inconvenient, or improper. Passengers, it appears, got off and on there witliout inconvenience, and easily and safely; and the place where the coach stood and the entry thereto were easy of access, it appears, to passengers. It is not contended that appellee did not have ample time to enter the coach in thé usual way while it was at the point where the passengers were being discharged and received at the time. Appellee had his ticket, and was not hindered by the conductor, or by any one, from getting on the coach at the time. Appellee did not go into the coach at the time, simply for the reason that he believed, as he said, that the coach would be brought to the depot platform for passengers to board it. There is an utter absence of any evidence, though, to show that appellee was induced by any act •or statement or practice or custom of the agents of appellant to believe that such stop was not for the regular and usual purpose of receiving passengérs and that the coach would be brought to the depot platform for the purpose, which was between 20 and 30 feet distant from where it was at the time. According to the record it was the invariable rule and custom at that station, after passengers had been discharged and received, to back the coach and caboose west across the public road, and not thereafter stop it at the platform to receive and discharge passengers. Therefore, the evidence showing, as it does, that the company had provided a reasonably safe way and afforded appellee ample time to get into the coach, and had established and used only one mode and rule for its train to leave the station after discharging and receiving passengers, and there being no deviation from the visual custom of final departure of the train from the station after discharging and receiving passengers, misleading appellee as to when and where he should board the train, and appellee seeing that passengers were being discharged and received at the place where they were being so discharged and received, appellant would not be responsible, by reason of any negligence on its part, for the consequences of appellee’s voluntarily using another way, of his own choosing, in attempting to board the train. The facts of this case, in essential points, distinguish it from the case of Mills v. Railway Co., 94 Tex. 242, 59 S. W. 874, 55 L. R. A. 497.

The judgment is reversed, and here rendered in favor of appellant, with costs of the district court and of this appeal. 
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