It is with some reluctance that the writer dissents from the conclusion reached by his Associates that the motion for rehearing presented by appellees should be overruled. On the original consideration, he was in doubt as to the correctness of the conclusion of the majority that the judgment below should be reversed, and judgment here rendered for appellant. This *Page 247 doubt has ripened into a conviction that we were in error in so deciding.
Plaintiff alleged two grounds of negligence on the part of defendant which have some support in the evidence, to wit:
(1) That three of defendant's employés were present, one at the top of the steps and two at the bottom, as she was leaving the coach, carrying a traveling bag "which was heavy and cumbersome," and that it was, under the circumstances, the duty of said employés of defendant to relieve plaintiff of said baggage and to take hold of her arm and to assist her to safely alight. That plaintiff had traveled on defendant's train many times theretofore, and that it had been the custom and practice of such employés to assist ladies, especially those with baggage, to alight, by taking the baggage and by taking hold of the lady passenger's arm. That she fully expected them to do so in the instant case, and thought they acted as if they were going to do so, they did nothing to assist plaintiff to alight.
(2) That the steps leading from the car were old and rickety, "slick and slippery," not level or properly pitched, etc., and that said agents and employés of defendant knew or were charged with knowledge of said defective condition of the steps, and that under the circumstances they should have assisted plaintiff to alight.
The evidence does show that when the plaintiff emerged from the coach in which she had been riding that one of the trainmen was at the entrance of the door out on the platform. Plaintiff testified:
"In getting off I was walking in my usual manner, taking my time. * * * One of the trainmen was standing there — I do not know whether the auditor or conductor. He was standing just to the left of me. He was standing on the platform of the train. * * * I did not say anything to him when I passed, nor did he to me. He did not take hold of me nor my baggage, nor did he touch me. When I started down I fell, fell down on the ground."
S. R. Johnson, witness for defendant, testified that he was a brakeman on the train, and that when the train stopped he was standing just south of the steps, possibly a little in front. He further testified:
"I saw the other ladies that came out just ahead of Miss Wisdom. I assisted them all off. When Miss Wisdom came down the car (steps?), just immediately before she fell, I was trying to take her (baggage?). She had a small, ordinary hand bag in her hand, and I was reaching with this hand, and just as I touched the bottom of the bag her shoe heel gave away, just let the bag go, and I caught her in both arms as she came down, and broke the fall as best I could. * * * This step in court resembles the step from which the plaintiff fell. On this step the rubber is worn in places, worn some in the center, worn smooth, not none of them entirely smooth. There is a place right there that is smooth, in the center, where they step off."
O. G. Barnett testified that he lived at Paradise and was running a service car; that he was at the depot when the train stopped. He testified:
"I first saw this young lady as she was coming out of the coach off onto the platform. * * * I saw only the `brakie' and the conductor. The conductor was upon the platform. * * * The man on the platform was standing there; was not doing anything; kind of waiting for the passengers to get out. When Miss Wisdom got to the platform she started down the first step. Her foot slipped forward, and her heel pulled off, and she slid down the steps. * * * She slipped from the first step, the top step, the next step from the platform. The platform is level with the floor of the car, and when she stepped on the first step her foot kind of slipped forward. I saw the condition for those steps. They were old steps, and the rubber on the steps was — there had been in time rubber on the steps, but they were all worn off, but around the edge or outside of the steps, the place you walk down, the center of the steps, was no rubber on. The surface of the step was worn until it was slick. * * * I am not positive which heel it was that caught. It was caught on the edge of the step, the first step. Her heel caught that way (pantomine). It pulled the heel off; tolerably high heel shoe, and it slipped. Q. Wasn't it a very high heel shoe? A. Nothing more than girls around home wear. Her foot slipped off that way, and the heel came off. Q. That is what made her fall, that heel coming off? A. No, sir. If the heel hadn't come off she would have been out on her head. Q. You know that? A. Sure. Q. You were watching, you knew she was going to do that? A. No; I didn't know she would do that. That heel came off; her foot slipped out from under her. She was standing in a position if the heel hadn't come off she would have went over. * * * There was no rubber on that step she slipped off on; was no rubber on the edge, on the outer side, next to the wall, where it had been worn off through the center. * * * On each side there was a little rubber next to the wall, but in the middle there was no rubber at all."
He further testified that W. N. Harris (not one of the trainmen) grabbed the plaintiff when she fell, ran and grabbed her, and that he never saw the brakeman grab her. He testified that plaintiff's suit case was about 2 feet long.
The plaintiff testified that she thought there were two trainmen on the depot platform at the bottom of the steps, one at each side.
Gifford Steele, witness for plaintiff, testified that he had lived near Paradise all his life; that he was down at the depot that day. His testimony, in part, is as follows:
"When I first saw Miss Wisdom that day she had just started down the steps, started to get off the train and her foot slipped, and she fell. * * * She had a traveling bag, had it in front of her. * * * The auditor did not take hold of this lady's traveling baggage. As she stepped on the platform he did not assist her in any way. She slipped and fell She just fell backward to the steps. Her back hit the *Page 248 step, and her feet went down in front of her. I could not tell how hard she fell. Looked like a pretty hard fall. They caught her before she fell lengthways on the platform. The parties that caught her were on the platform of the depot. * * * The first thing I saw; her feet slipped from under her, and she fell in a sitting position on the steps and bumped on down. * * * She had some kind of traveling bag. * * * She had it in front of her."
H. C. Richberg, who lived at Paradise, testified that he was just ahead of Miss Wisdom in getting off the train. He testified:
"My recollection is that the conductor was standing to my left on the platform as I came out. I saw her start down the steps of the car. I suppose her feet slipped from under her. * * * I came down those same steps. * * * I noticed they were old steps. They were worn some. I think there was rubber on them. * * * They were worn sort of smooth across by constant use. * * * There was rubber on that step but it was worn and old, worn slick."
R. J. Stewart, witness for defendant, testified that he was the conductor in charge of the train that day in place of Tobe Goodman, the regular conductor; that the auditor, D. E. Scofield, was up on the platform of the car, and the brakeman Johnson was standing on the depot platform, Johnson on the south side of the steps and the witness on the north side; that when plaintiff fell witness was standing at the bottom of the steps; that "her feet slid out from under; fell with her feet towards me; right between me and the brakeman." Scofield testified that he saw plaintiff when she fell; that "just before she fell her feet slipped. When she stepped out of the car I put my hand right on her arm to assist her as she passed by. When she fell I grabbed at her, and could not reach her body but put my hand on her head as she slipped down. * * * I examined the steps just after she fell, before we moved. I did not see any defect in them. There was no defect in the rubber that I could see."
Enough of the evidence has been noted, in the writer's opinion, to show that there was at least some evidence tending to establish:
(1) That three trainmen were present at the time and place of the accident in position to have relieved the plaintiff of her baggage and to have otherwise assisted her in alighting from the car. That not one of them did render any assistance.
(2) That the trainmen were accustomed to render such assistance, and in fact did so this day and as to this coach assist the other ladies in alighting.
(3) That the steps were old and defective, with the rubber thereon worn slick, at least as to the top step from which plaintiff fell.
(4) That plaintiff's foot slipped from under her because of the worn surface of the top step, and that her heel caught, after she slipped on the edge of the step. That one of the inducing causes of the injury was the worn condition of the rubber covering to the steps.
The jury were not bound to believe that the steps exhibited in court were the same steps that were attached to the car at the time of the accident, and down which the plaintiff fell. The jury were authorized in finding that in the exercise of that high degree of care due a passenger, defendant's employés were negligent in using steps in the worn and defective condition, as above noted.
(5) The evidence further justifies a finding that the trainmen were negligent, taking into consideration the worn condition of the steps, which condition was open and patent to them, and the fact that plaintiff was incumbered with a traveling bag, or grip, which on account of its size and cumbersomeness she was having to carry in front of her, in not relieving the plaintiff of the baggage and in not otherwise assisting her to alight.
It is true that the failure to assist a female passenger to alight from a train is not per se negligence, but the circumstances, surrounding the transaction may tend to show the propriety of such assistance and the duty upon the employés of the carrier to render it. Railway Co. v. McCullough, 18 Tex. Civ. App. 534, 45 S.W. 324; Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S.W. 200; Railway Co. v. Buchanan,31 Tex. Civ. App. 209, 72 S.W. 96; Walker v. Quincy, O. K. C. Ry. Co. (Mo.) 178 S.W. 108, 10 N.C.C.A. 516; Ga. Fla. Ry. Co. v. Thigpen, 141 Ga. 90, 80 S.E. 626, 4 N.C.C.A. 457.
The question as to whether it is negligence on the part of the employés of the railway company to fail to assist a passenger to alight from a train is largely one for the jury. Traction Co. v. Flory, supra; T. P. Ry. Co. v. Miller, 79 Tex. 78-84, 15 S.W. 264, 11 L.R.A. 395, 23 Am. St. Rep. 308. If there are any conditions such as old age or physical infirmities on the part of the passenger, or being incumbered with heavy baggage, or the defective condition of the place and means of disembarkation, including the condition of the landing place, neither would the trial court nor an appellate court be justified in depriving the litigant of the right to have a jury pass upon the question as to whether the carrier was negligent in failing to render assistance to the passenger under such circumstances. Railway Co. v. Finley 79 Tex. 85, 15 S.W. 266; I. G. N. Ry. Co. v. Williams,183 S.W. 1185.
As was said in Ft. Worth D.C. Ry. Co. v. Spear, 107 S.W. 613, 615:
"We do not think it can be said as a matter of law that the failure of a carrier to assist a female passenger to alight from a train is negligence. Whether it would be negligence or not in a given case would depend upon whether *Page 249 furnishing such assistance was or was not within the bounds of its duty to exercise the high degree of care imposed upon it to secure the safety of its passengers."
In speaking of this duty, Hutchinson on Carriers, § 617a, p. 73, says:
"But the duty may be imposed where the passenger is known to be so sick, aged, or infirm as to need assistance in alighting safely, and certainly where the passenger is called upon to alight away from the station or at a dangerous and unusual place. Where conveniences for that purpose have not been provided, the carrier owes to the passenger the duty to see that he has such assistance as is reasonably necessary to enable him to alight in safety. As is said in a late case, `the contract of a railroad company with its passenger does not terminate until he has alighted from the cars."'
The fact that evidence was introduced by defendant to show that the steps used were not worn smooth or slick, and that the baggage carried by plaintiff was not large or heavy, and that her fall was caused, not by the defective condition of the steps, but through the plaintiff's contributory negligence in wearing high heel shoes or in not noticing how and where she was placing her foot, does not, in the opinion of the writer, justify this court in reversing and rendering the judgment. All these matters were before the jury and the trial court, and they were in better position to pass upon the weight of the conflicting testimony than this court. Even if it could be truthfully said that the great preponderance of the evidence exculpates defendant from any negligence in the respects charged, yet in the face of some evidence of a probative force tending to establish the existence of facts rendering it the duty of defendant's employés to assist plaintiff to alight, this court's duty would be to reverse and remand rather than to reverse and render. Hence the writer dissents from the conclusion reached by the majority on appellee's motion for rehearing.