
    The G., H. & S. A. R’y Co. v. J. K. Davidson.
    (Case No. 1789.)
    1. Damages — Railroad comp ant.— In a suit against a railway company for damages for injuries inflicted by the alleged negligence of the company’s servant in closing a car door on plaintiff’s Anger and crashing it, one of the controverted facts in the case was whether the plaintiff, when the injury was received, was attempting to enter one of the carriages of the train, or whether he was standing on the car platfprm with his hand negligently so placed as to be rendered liable to injury. Held, that a charge which in its language seemed to assume as a fact that the plaintiff’s finger was crushed when attempting to enter the car was error.
    3. Same. — The error-was not remedied by another charge, to the effect that unless the jury believed that the porter (the servant) knew that plaintiff’s finger was in such a position as that it would get crushed when he shut the door, and when the injury was inflicted, they could not find for the plaintiff,
    8. Negligence.— In this case it was error to give a charge which in effect asserted that it was negligence for a porter on a railway train to close the doors of the company’s cars without giving warning of his intention to do so in advance.
    4. Distinguished.— This case distinguished from Fordham v. The T. B. & S. C. R. Co., 32 Vic., 1868, 1869, which is reviewed in the opinion.
    Appeal from Colorado. Tried below before the Hon. Everett Lewis.
    Appellee sued for damages for personal injuries alleged to have been caused by the negligence of the porter of a passenger car of defendant, whereon plaintiff was a passenger, in closing the door of the car upon the middle finger of his left hand, whereby the same was crushed. The defendant answered by a general denial.
    
      Verdict and judgment for plaintiff for $2,000. The judgment was reversed on account of a charge held to be erroneous, which will be found in the opinion.
    
      E. P. Hill, for appellant.
    
      Kennon & Townsend, for appellees, cited:
    Vaughan v. State, 21 Tex., 752; Hollingsworth v. Holshousen, 17 Tex., 41; Wood v. Chambers, 20 Tex., 247; Mercer v. Hall, 2 Tex., 284; Robinson v. Varnell, 16 Tex., 382; Bradshaw v. Mayfield, 18 Tex., 21.
   West, Associate Justice.—

We are of opinion that the court committed an error, and one prejudicial to the rights of the appellant, in giving charge Ho. 1 at the instance of appellee.

The instruction was as follows: “1. If the jury find, from the evidence, that the plaintiff was lawfully upon defendant’s train as a passenger, and that in attempting to enter one of the carriages of said train the porter upon said train forcibly closed the door of the car upon the finger of plaintiff, whereby it was injured, and that said door was closed without any warning, and that the plaintiff was not guilty of contributory negligence, then the plaintiff would be entitled to recover the actual damages proven, including compensation for physical and mental suffering resulting from the injury and his loss of capacity to earn money since the infliction of the injury and in the future.”

The charge was not free from objection, in that it practically assumed, or seems to assume, as a fact, one of the issues raised in the case. To that extent it was nearly equivalent to a charge on the weight of evidence in effect. Whether or not the appellee was in the act of entering the smoking car, or attempting to enter it, when he was injured, was one of the disputed questions in the case, and one which we regard, under the facts disclosed, as of considerable importance. Where the appellee was when the injury was inflicted, and what he was doing at the time, were matters calculated to throw a good deal of light on the case. The i’ecord, too, shows that both parties regarded this subject as of some importance, the one endeavoring to show that he had in fact been on appellant's train only a very short while before being injured, and had been during all that time endeavoring from the first to make his way through the first class car, which was crowded, to the door of the smoking car, for the purpose of obtaining a seat there. On the contrary, the appellant was endeavoring to show by evidence that the appellee was not at the time the injury was received attempting to enter the smoking car, but, on the contrary, that since he had entered the train, it had traveled at least two miles, and that the day was so far spent that the porter was just getting ready to light the lamps in the ladies’ car; and that the appellee, so far from, being in the act of entering, or attempting to enter, the smoking car, that being then only a mile from his place of destination, was standing on the platform of the smoking car engaged smoking a cigar, with his hand placed by him negligently and carelessly in such a position that it must necessarily be injured when the car door was closed. The evidence of the appellant himself was to the effect that he was engaged in smoking a cigar when the injury was received. The porter also swore that the appellant was on the platform, in the act of lighting a cigar, when he was hurt.

Under the particular circumstances of this case the court erred in giving the instruction now under consideration.

The appellee, in his brief on this point, seems to concede, at least partially, that the charge in question was liable to some criticism. He urges, however, that it was cured by the action of the court in giving the jury, at the request of appellant, a charge to the effect that, “Unless the jury believe that the porter of the car knew that plaintiff’s finger was in such a position as that it would get mashed when he shut the door, and when the injury was inflicted, they cannot find for the plaintiff.”

This view of the matter is certainly not without force, but we are of the opinion that the error in this instance was too serious to be thus remedied.

The instruction under consideration was also objectionable for another reason. It asserts, in effect, that it is. negligence on the part of appellant for its porter to close the doors of appellant’s cars without giving warning of the fact in advance. Unless there is some special reason for giving notice or warning, we are aware of no principle of law that in such cases requires it to be done. It is sufficient, generally, if the door of the car is opened and shut with usual and proper care, in the ordinary way, without any public warning, or parade or ado over the matter. Ho warning to the passengers is necessary, unless there may exist some special reason for giving notice. It was certain that the porter on this occasion had given no warning in the sense in which the jury understood the term, and this portion of the charge was wrong and well calculated to prejudice the rights of the appellant and mislead the

Further, the phrase used in the charge, “forcibly closed the door, was calculated to confuse, the jury. The appellee contends that this word forcibly means, in this connection, knowingly. We do not think so, and are of the opinion that the instruction, under the facts of this case, taken as a whole, was quite objectionable.

The instruction we have been considering seems to have been copied in substance from Mr. Underhill’s commentary in his work on Torts, p. 274, on the case of Fordham v. T. B. & S. C. R. Co., Law Rep., vol. 4, C. P., p. 619; 32 Vict., 1868, 1869.

The court and counsel at the trial evidently did not have that case before them. It differed in many of its features from the one in hand. It seems, from the facts of that case, that the door of the railway carriage, where the injury was received, was on the side, or, at least, if not on the side, constructed differently from the doors to cars in this country.

It also appears in that case that the injury was received on a dark night; that near the door there was not, as it seems there should have been, a handle near the side of the door, attached to the car, to aid passengers in getting on the cars. It also appears that the passenger finding, in the dark, no handle to hold to, was forced to put his left hand on the back of the door to aid him in getting up, having at the same time a bundle or parcel in his right hand. Before he had completely entered the carriage, and when he could be plainly seen by the railway guard, without giving him any previous warning, the guard forcibly closed the door and crushed his hand between the back of the door and the door post. It would seem that the door was possibly a sliding door, and did not open and shut on hinges as the doors do on appellant’s carriages. The court held in that case that inasmuch as the passenger had been invited to enter the car, the door having been opened for that purpose, he had a right to do so; that the failure, or apparent failure, to have a handle near the door for the use of the passengers in getting on the train was negligence on the part of the railroad company. Further, that, in the absence of such handle, and in consideration of the darkness, the passenger could not be said to be guilty of negligence, under the circumstances, in having his hand where it was at the time of the injury. The case itself has been carefully examined. It is also cited and commented on in Thompson on Carriers of Passengers. See, also, Richardson v. Met. R. Co., Law Rep., 3 Com. Pl., p. 374.

The facts vary materially, in several respects, from the case under consideration, and a charge as to the forcible closing of the door without warning, that might be applicable in one case, would not apply to another, where a different state of facts existed.

In view of this error of the court the appellant cannot be said to have had a fair trial. Without intimating any opinion as to the nature of the case as disclosed by the evidence, we may venture to make an observation or two with a view to aid in a final disposition of the case on the next trial in a more satisfactory manner.

Mr. Thompson in his work on Carriers of Passengers, p. 264, lays the rule down on this subject as follows: “A passenger cannot be said to be in the exercise of due care who voluntarily and unnecessarily places his hand upon the framework of- the door of the carriage so that when the door is closed it must be inevitably crushed.” The case of the Metropolitan R. R. Co. v. Jackson, 3 App. Cas., 193, also cited by Mr. Thompson in the above named work on the same page (264), may be profitably examined in this connection.

For the error above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered February 27, 1884.]  