
    FORT WORTH & D. C. RY. CO. v. KIDWELL.
    (No. 349-3103.)
    (Commission of Appeals of Texas, Section A.
    Nov. 29, 1922.)
    I. Trial <&wkey;278 — When objection to a charge sufficient stated.
    An objection to a charge presents distinctly the error complained qf when such objection by a reasonable and fair construction of the •language used by the party mating same can .be said to present the point of the objection.
    :2. Trial <&wkey;278 — Objections to charge held sufficient to raise error complained of on appeal.
    Where the trial court in a passenger’s ac-tion for injuries sustained by falling into a ■hole in the platform when about to board defendant’s train charged that railroad companies are not insurers of the safety of their passengers further than would be required by the •exercise of such a high degree of foresight as ■to possible danger and such a high degree of prudence in guarding against them as would be used by a very prudent, cautious, and competent person under similar circumstances, an •objection that the law does not make railroad companies insurers of their passengers in any sense, and that the charge was more onerous on defendant than the law requires, held sufficiently to call the court’s attention to alleged error in the charge in that defendant did not ■ owe plaintiff a high degree of care, since he was not in the passenger coach or attempting to get on its steps when injured, in view of Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 1612, 1971, 2020, and Harris’ Rules for the Courts, rule 67.
    .3. Carriers &wkey;>280 (I) — Degree of care owing by carrier to passenger stated.
    Railroad companies are not insurers of the ■ safety of their passengers further than would be required in the exercise of such a high de.gree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by a very prudent, cautious, and competent person under similar circumstances.
    4. Carriers &wkey;>286(l) — Same degree of oare owing by carrier to passenger on station platform as on train.
    Where plaintiff, after purchasing his ticket, went to the end of the station pjatform to attend to his own business, and on returning fell into a hole in the platform while about to board the train,. that plaintiff was on the platform, and not in the cars, did not alter the degree of care due him by the carrier.
    <S&wkey;For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by 6. W. Kldwell against the Eort Worth & Denver City Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals. A rehearing was denied, and questions certified to the Supreme Court.
    Questions answered as recommended by the Commission of Appeals, and certified to the Court of Civil Appeals.
    Thompson & Barwise, of Eort Worth, and Taylor, Allen & Taylor, of Henrietta, for plaintiff in error.
    Wantland & Parrish, of Henrietta, for defendant in error.
   RANDOLPH, J,

The following statement and certified questions from the Court of Civil Appeals for the Second District in the above cause have been submitted to us for consideration and report by the Supreme Court. The certificate and statement are as follows, to wit:

“The above styled and numbered cause originated in the district court of Clay county, Tex. Plaintiff sued for alleged personal injuries caused by his falling into a hole, excavation, or depression in the platform of defendant company’s depot at the town of Vernon, Tex. He alleged that he had purchased a ticket over defendants’ line on August 8,1916, and was on the platform waiting for the arrival of the train to take him to his destination, and upon said train’s arrival he started toward the train for the purpose of becoming a passenger thereon, and fell into this hole or excavation, whereby he claimed to have suffered serums' bodily injury. Plaintiff alleged negligence on the part of the defendant company in permitting the excavation or hole tq be in its platform and in not having its platform and depot sufficiently lighted. After a general demurrer and general denial, defendant specially pleaded a denial that its platform was not well lighted, and specially pleaded contributory negligence on the part of the plaintiff in failing to see and in falling into the hole or excavation in its platform. The cause was submitted to the jury under a general charge, to which defendant filed its written objections. Plaintiff recovered judgment in the sum of $1,000, and defendant appealed.
“On November 10, 1917, this court affirmed the judgment of the trial court, and on December 22, 1917, overruled appellant’s motion for rehearing. A copy of the opinion on original hearing as well as that on motion for rehearing accompanies this certificate. Appellant’s fourth assignment of error, as contained in its brief, is as follows: ‘Because the court erred in giving to the jury the instruction contained in the third paragraph of the charge of the court to the jury, wherein he instructed the jury that “railroad companies are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by very cautious, prudent and competent persons under similar circumstances, and such a high degree of prudence is required of them,” because said charge placed a far more onerous burden upon the railroad company than the law placed upon them, and said charge is erroneous, because the law does not make railroad companies insurers of the safety of passengers in any circumstances, and does not require that degree of insurance of passengers that is set forth and stated in said paragraph of said charge.’ ‘This assignment is considered as a proposition.’
“Under the heading, ‘Argument,’ following this assignment, appellant urged the following as a reason or reasons for the sustaining of the assignment: ‘We are aware that the foregoing charge has been approved by the Supreme Court of Texas, but we think it is in conflict with many other authorities and with the elementary principles of law, and, under the well-established law of this country, the common carrier should not in any case be held to be an insurer of the safety of 'passengers, but should only be held to exercise that high degree of care which an ordinary prudent person would exercise under the same circumstances, and to instruct a jury that they are in any circumstances insurers of the safety of the passengers is calculated to mislead the jury, and we see no reason why the plain and simple rule which is so easily understood should not always beTollowed in giving instructions to the jury on the subject, which is that a carrier of passengers is required to use that high degree of careVhich a very cautious, prudent, and competent person would use under like circumstances, and that a failure to use such care is negligence on the part of the carrier. We submit that the authorities approving the foregoing charge should be overruled.’
“In its motion for rehearing, for the first time, as it seems to us, appellant urged error under the fourth assignment on the ground that the third paragraph of the court’s charge presented fundamental error and was erroneous, and urged that ‘the undisputed evidence in this case showed that appellee after he purchased his ticket remained outside of appellant’s passenger station at Vernon and went to one end of said station on business of his own not connected with that of the appellant, and at the time he alleges he was injured he was returning from said end of the platform where he had gone on business of his own, and therefore, this being true, and appellee not being on the steps of the appellant’s passenger coach, or not attempting to get on said steps, and not being in appellant’s passenger coach, at the time he was injured, then under these circumstances appellant did not owe appellee the high degree of care, that is, that degree of care that an ordinary, prudent person would exercise under the same or similar circumstances.’
“The objections urged to the third paragraph of the charge in the trial court, before the said charge was submitted to the jury, were as follows: The defendant excepts to the third paragraph of said charge, because the same makes railroad companies insurers of the safety of their passengers as far as could be required by the exercise of .such a high degree of foresight as to possible dangers and to such a high degree of prudence in guarding against them as would be used by a very cautious, prudent, and competent person under similar circumstances; whereas, the law does not make railroad companies or common carriers of passengers insurers of their passengers in any sense, and said paragraph 3 is more onerous on the defendant than the law requires.’
“The third paragraph of the court’s charge to the giving of which error is assigned under appellant’s fourth assignment of error is as follows: ‘Railroad companies are not insurers of the safety of their passengers further than would be required by the exercise of such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by a very cautious, prudent and competent person under similar circumstances, and such a high degree of prudence is required of them.'
“As Stated in our opinion on motion for rehearing, we were of the opinion that appellant did not, either in its objection to said paragraph of the charge, .presented to the trial court before the giving of the charge, or in its fourth assignment as contained in its motion for new trial in the district court, or as presented in its brief under the fourth assignment, or in any proposition or argument under said fourth assignment, raise the character of objection to said third paragraph of the court’s charge as was raised on its motion for rehearing. Hence we overruled appellant’s motion for rehearing, for the reason there stated, and on the authority of the Gulf, T. & W. R. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184, by the Supreme Court, and other authorities cited, though we were of the opinion that, had the objections to this paragraph of the court’s charge been presented to the trial court before the charge was submitted, .as it was presented to this court on the motion for rehearing, reversible- error wjjuld have been shown. We were further of the opinion that the objections urged in the trial court to this paragraph of the court’s charge were not sufficient to call the attention of the trial court to the vice complained of in appellant’s motion for rehearing.
“Appellant has filed its motion asking us to certify to your honors the question or questions involved, and we have granted said motion, after setting aside the order overruling appellant’s motion for rehearing. Appellant now urges that our judgment and conclusion on motion for re hearing is in conflict with the holding by the Supreme Court in the case of Clarendon Land Inv. Agency Co. v. McClelland Bros., 86 Tex. 179, 23 S. W. 1100, 22 L. R. A. 105; with the holding of the Court of Civil Appeals for the Seventh District in Nunn v. Veale, 149 S. W. 758; with the holding of the Court of Civil Appeals for the Fifth District in Haight & Co. v. Turner & Pierce, 44 Tex. Civ. App. 595, 99 S. W. 196, in which writ of error was denied for want of jurisdiction; with the holding of the Court of Civil Appeals for the Fourth District in Wright et al. v. U. S. Mfg. Co., 54 S. W. 369; with the hoMing of the Court of Civil Appeals for the Third District, in Moline Plow Co. v. Mathews, 44 S. W. 699. We are of the.opinion that we are not in conflict, either with the Supreme Court or with other Courts of Civil Appeals in the several cases cited, because said decisions were rendered before the amendment qf articles 1970 and 19J1 by the Thirty-Third Legislature, 1913, at its regular session, as found on page 113 of said acts, said numbers being the same as now found in Vernon’s Sayles’ Tex. Civ. Statutes of 1914. We were, in passing upon the sufficiency of this fourth assignment at the time of overruling appellant’s motion for rehearing, and are now, of the opinion that the decisions cited by appellant, fand relied on by it. to show error, cannot b.e held to be authoritative as to the sufficiency of the objections made in the trial court to the charge, and prior to the giving of the charge, since all of these decisions were rendered prior to the amendment of our statutes requiring the trial court to submit 'his charge in writing to the respective parties or their attorneys for inspection, and requiring said parties to present objections thereto in writing, and providing that ‘all objections not so made and presented shall be considered as waived.’ We are of the opinion that article 1971, supra, was intended by the Legislature to require that, in order for objections to the charge to he given force and effect by the appellate court, such objections should be couched in words calling particular'attention to the alleged vice in the charge which is urged in the appellate court; that the trial court _ should have the benefit of the particular objections urged in the appellate court. But because of the claimed conflict, and because the question here involved is one of great interest to the courts and profession in the state, we deem it advisable to certify to your honors for answer the following questions, to wit:
“(1) Was the objection urged in the trial court to the third paragraph of the court’s charge sufficient to call attention of that court to the specific error urged in this court on appellant’s motion for rehearing?
“(2) Under the circumstances related, did this court err in refusing to sustain, appellant’s fourth assignment, and in overruling its motion for rehearing? ”

Article 1971, Vernon's, Civil Statutes, referred to in the above certificate, in so far as it provides for objections to the trial court’s charge, is as follows:

“The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.”

It will be observed that the apparent purpose of this article is to require all objections to the charge to be reduced to writing and presented to the trial court before the charge is read to the jury. There is no indication in the language of the article of any intention on the part of the Legislature to make any requirement as to what shall constitute a sufficient objection to the charge, and we know of no rule or statute which attempts to make any such provision. It is left to the courts in each case to say whether or not the objection made is sufficient to present the ground of error complained of. This naturally follows from the requirements provided by the rules of court and the statutes as to the ground set out in the motion for new trial in the lower court and in the assignment of error in the appellate court.

The provision as to the requirements of the motion for new trial in article 2020, Vernon’s Civil Statutes, is that the motion shall specify the ground upon which it is founded, and also that no grounds other than those specified shall be heard or considered.

Rule 67, Harris’ Rules for the Courts (L. K. Smoot Ed.) also requires that grounds of each motion shall refer to that part of the charge complained of in such way as that the point of objection can be clearly identified and understood.

Article 1612, Vernon’s Statutes, requires that assignments of error filed in the trial court in appeals to the Court of Civil Appeals shall distinctly specify the grounds on which the party appealing relies.

We do not think that the case of G., T. & W. R. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184, is at all decisive of the question be* fore us. While Chief Justice Phillips discusses the articles in title 37, c. 13, Revised Statutes, at length, it is only for the purpose of reaching a decision as to whether or not a bill of exceptions is required, in addition to the filing of written objections to the trial court’s charge.

We are of the opinion that an objection to a charge presents distincly the error complained of when such objection by a reasonable and fair construction of the language used by the party making same can be said to present the point of the objection.

In the case at bar the objection pointed out the particular paragraph of the charge that was complained of and stated the ground of complaint. The trial court having the evidence before him, and having his attention called to the' particular paragraph of his charge, and the particular vice alleged to exist in it, such objection is held by us to be sufficiently presented. The objection to the charge as set out in the certificate presents clearly the question of the degree ol care to be used by carriers in the transportation of their passengers as applied to every phase of the case established by the evidence. This notwithstanding plaintiff in error presented an argument discussing another view of the question. The fact that the plaintiff in error in its motion for rehearing, wherein it complains of the action of the Court of Civil Appeals in overruling its fourth assignment, particularizes by quoting the evidence, does not waive its rights under the objection, motion for new t^ial, and assignment of error.

In the case of Earle v. Thomas, 14 Tex. 593, the Supreme Court holds:

“It is objected on behalf of the appellee that the assignment of error is, in this particular, too general. It, however, is sufficiently specific, in respect to the charge refused, and that, we thinlr, sufficiently indicates in what respect the charge given was objected to as erroneous. It would have been better if the assignment in reference to the charge given had been more specific. But the charge is so framed as that it would not, perhaps, very readily occur to counsel how else to make the assignment with the brevity and directness desirable in an assignment of errors; for the charge is not objectionable so much on account of the abstract legal propositions announced as on account of the form in which they are announced, considered in reference to the evidence in the case, and the impressions they were calculated to make upon the minds of the jury. What shall be a sufficiently special assignment of error, is not susceptible of precise definition. It should be such as to draw the mind( to the apprehension of the particular error intended to be relied on. But what shall be sufficient for this purpose still remains to be determined upon the particular circumstances of each case.”

The holding in the above case is approved in the case of Land Co. v. McClelland Bros., 86 Tex. 188, 23 S. W. 576, 1100, 22 L. R. A. 105. Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593; Green et al. v. Hall et al. (Tex. Com. App.) 228 S. W. 184.

We therefore answer the first question in the affirmative.

We understand the second question as presenting the question that, the plaintiff in error’s fourth assignment of error being considered, does it present such error as requires the Court of Civil Appeals to sustain it, and in that respect was the action of the Court of Civil Appeals in overruling said assignment correct?

The court was undoubtedly correct in its holding that the trial court’s charge was correct in its presentation of the degree of care necessary to be exercised by a carrier towards its passengers. I. & G. N. R. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Allen v. G., C. Ry. Co., 79 Tex. 631, 15 S. W, 498; I. & G. N. Ry. Co. v. Welch, 86 Tex. 204, 24 S. W. 390, 40 Am. St. Rep. 829.

. The contention of the plaintiff in error ■is that after buying his ticket defendant in error went to the end of the platform to attend to his own business, and on his return received the injury, and he was therefore not a “passenger” in the sense that required • the highest decree of care, for he was not only not on the cars of plaintiff in error, but was returning from transacting his own business, and that plaintiff in error only owed him ordinary care.

The fact that defendant in error was on the platform and not in the cars does not alter the degree of care due him by plaintiff in error. In the ease of Ft. Worth & D. C. R. Co. v. Brown, 205 S. W. 379, Judge Boyce, for the Seventh Court of Civil Appeals, states the law to be as follows:

“Complaint is made of the charge of the cqurt which imposed upon "the appellant 'company ‘in the treatment of their passengers awaiting trains in their depots * * * that high degree of care that a very cautious and prudent person would have exercised under the same or similar circumstances,’ on the ground that a rule requiring the exercise of that high degree of care as stated applies only to those duties in connection with the actual transportation of the passenger, and that only ordinary care is required in reference to the condition of its stations and premises occupied by its passengers preliminary to or upon termination of the actual transportation”

—holding upon this issue that the rule of high degree of careas applicable alike in both situations.

This holding is supported by the following authorities: M., K. & T. R. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 256 (writ denied); S. A. & A. P. R. Co. v. Turney, 33 Tex. Civ. App. 626, 78 S. W. 257 (writ denied); T. Cent. R. Co. v. Cameron (Tex. Civ. App.) 149 S. W. 711 (writ denied); G., C. & S. F. Ry. Co. v. Butcher, 83 Tex. 316, 18 S. W. 583.

In our opinion it matters not that the defendant in error had “occasion to go to the end of the platform to attend to his own business.” He was returning to get on the train of plaintiff in error, and he had as much right to their high degree of care in the final approach to the train as though he was making that approach in the first instance.

We therefore answer the last question in the negative.

We therefore recommend the above as our opinion and answers to the questions for the approval of the Supreme Court.

CURETON, O. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals.  