Pullman Co. v. Schober (149 S.W. 236, 1912)

JAMES, C. J.

G. C. Schober sued, alleging that he was a passenger on one of defendant’s cars from San Antonio to Ft. Worth; that when the train was near the station of Milano Junction, and while plaintiff was asleep in his berth, during the night, his trousers, money, watch and chain, and a locket were taken therefrom; that defendant was negligent in failing to afford his property proper protection while he was asleep, also negligent in that the porter of the car had negligently, and in violation of defendant’s rules, and without auy request from plaintiff, left the berth window open so that there was an open space between the window and the screen; that robberies had been of frequent occurrence at that place, as was well known to the agents and servants of defendant, but, notwithstanding, they neglected to keep a proper watch and neglected to guard plaintiff’s property, and neglected to warn plaintiff of the extra dangers of robbery at this place, thereby preventing him from taking extra precautions for protecting same. Defendant pleaded general denial and contributory negligence and specially answered in effect that, if the property was stolen from plaintiff’s berth, it occurred at a very early hour in the morning at a point where such an occurrence could not have been reasonably expected; that defendant had an employé in said car on watch and was using reasonable care and diligence for the protection of the property of persons riding on said car. The verdict was for plaintiff.

Inasmuch as we have reached the conclusion that the judgment should be reversed for error in respect to the charges, it would not be proper for us to discuss the testimony, as is called for by the first and second assignments. After a careful consideration of the testimony, we will merely state that in our opinion the testimony was sufficient to sustain a verdict for the plaintiff upon the grounds of negligence alleged in the petition.

We ' overrule the third assignment. Knowledge on the part of defendant’s servants that stealing from the cars had been going on in that neighborhood was material and relevant upon the degree of care that was reasonable on their part to protect the property of passengers. It was not a fact necessary to be alleged in order to be proved.

We overrule the fourth assignment. The charge was correct as a general submission of the issue of defendant’s negligence. It is not error to fail to. expressly limit the negligence to that alleged in the petition. As stated in Railway v. Motwiller, 101 Tex. 521, 109 S. W. 922: “The charge given referred neither to the pleadings nor the evidence. It contained no intimation to the jury that they were to look to matters in evidence which had not been pleaded. The jury were in no way told that they could find for injuries not pleaded, or for injuries not proved. The failure to expressly confine their attention to matters both pleaded and proved was therefore a mere omission, which should have been cured, if the defendant desired, by a requested instruction.”

The sixth assignment complains of the refusal of an instruction on the subject of plaintiff’s contributory negligence, which was based upon the fact of plaintiff’s knowledge that the window of his berth was open with a space between the sash and screen.

The ninth assignment relates to another requested charge on contributory negligence, based on plaintiff’s knowledge of the window being open as aforesaid.

Defendant was entitled to have the issue submitted on charges that embodied a reference to the facts or theory upon which it was based. Railway v. McGlamory, 89 Tex. 635, 35 S. W. 1058. The court submitted the issue only in a general manner.

Appellee justifies the refusal of such charges, upon the only ground which we conceive to be possible for refusing them, which is that the fact that plaintiff knew the window of his berth was open was not supported by any evidence. Appellee states: “Nowhere in the testimony is there any evidence whatever going to show that appellee knew that the window of his berth was open. On the other hand, appellee testified on the point as follows: ‘At the head end of my berth the window was closed, at the foot end I don’t remember whether the window was open or not; I don’t know. * * * I did not look at the window before I went to sleep. X never thought of it before at all, I never bothered with it. I did not see it. There was no light.’ ”

The fact whether or not plaintiff was aware of the window being open was, under the circumstances, one peculiarly within his knowledge. Upon that subject nobody could be expected to be brought to contradict him. He was an interested party. Under such circumstances it has frequently been held that the jury is not bound to accept his statement. McCormick v. Kampmann, 109 S. W. 492; s. c., 102 Tex. 215, 115 S. W. 24. They may disbelieve him and find directly the reverse, where the surrounding circumstances lend any probability to a contrary finding.

The conductor and porter testified that soon after leaving San Antonio, which was about 9 o’clock at night, the windows were all let down upon the screens. Plaintiff testified he