Texas & P. Ry. Co. v. Storey

• Decision Date: 12 November 1904
• Citation: 83 S.W. 852
• Parties: TEXAS & P. RY. CO. v. STOREY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 852

TEXAS & P. RY. CO. v. STOREY.^*

Court of Civil Appeals of Texas.

November 12, 1904.

Additional Conclusions of Fact, December 24, 1904.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by G. W. Storey against the Texas & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and rendered.

See 68 S. W. 534.

T. J. Freeman and Head & Dillard, for appellant. Dudley & Sturgeon, for appellee.

TALBOT, J.

G. W. Storey brought this suit to recover damages for personal injuries sustained by his wife, Sarah A. Storey, in an accident which occurred while she was a passenger on one of the appellant's passenger trains. A jury trial January 7, 1904, resulted in a verdict and judgment against appellant for the sum of $160, and the case is before us on appeal.

On December 20, 1900, Mrs. Storey was a passenger on an excursion train en route from Enloe, Tex., to Huntsville, Ala. The car in which she was riding was carried from Enloe to Paris, Tex., by the Texas Midland Railway, and there attached to a train of the Texas & Pacific Railway Company; said car being the rear coach of said train. This train left Paris, and when about 9 miles distant therefrom, and while being run at the rate of 25 or 30 miles per hour, a drunken passenger by the name of Oliver, recklessly and in total disregard of the lives of the fellow passengers, uncoupled the car in which Mrs. Storey was riding from the other portion of the train. The train consisted of the engine and 12 coaches, and the separation of the car in which Mrs. Storey was seated, from the rest of the train, caused the air brakes to set automatically on the car detached, and also on the main part of the train. The part of the train that remained connected to the engine, however, stopped sooner than did the coach which had been cut loose, and said coach ran against the cars ahead of it. The shock of the collision threw Mrs. Storey against a seat and injured her.

It is sought to hold appellant liable on the ground that it was guilty of negligence in not anticipating and preventing the willful and unlawful act of the passenger which occasioned Mrs. Storey's injuries; that the air brake on the coach in which she was riding was defective, otherwise it would have been stopped, by automatic action thereof, before it collided with the main part of the train; that the hand brake on said coach was defective, and there was no brakeman on said coach.

The case was submitted to the jury on a general charge and several special charges, and in no event were they authorized to return a verdict in favor of the plaintiff unless they believed from the evidence that appellant ought to have anticipated and foreseen that some such person as the drunken passenger, by the same wrongful act, would bring about the accident which resulted in the injuries to appellee's wife.

No complaint is urged to the form or construction of the court's charge, but, at the conclusion of the evidence, appellant requested the court to instruct the jury as follows: "The evidence in this case is not sufficient to authorize you to find that the defendant was guilty of negligence in not anticipating and preventing the cars from being uncoupled by the person who uncoupled them." This charge was, in effect, an instruction to return a verdict for appellant because the evidence was insufficient to warrant or support a finding in favor of appellee, and is the basis of appellant's ninth assignment of error. Appellant, by its fifth assignment, also complains that the evidence was insufficient to justify a verdict for appellee; and these assignments present the controlling question, we think, and the only one for our determination. In the opinion of this court on the former appeal of this case, it was said: "The company was not negligent in having the air brake in such condition, unless it should have foreseen that a necessity might arise for having the same in more perfect condition. Such necessity could only be created by the unauthorized act of a stranger, and, if there was no reason to apprehend such an act, negligence could not be predicated on the condition of the air brake." 68 S. W. 534.

It is well understood that a common carrier of passengers, in the performance of its duties respecting the safety of the passenger, is required to use a very high degree of care and watchfulness. As applied to railway companies in this state, it has been held that such companies are bound to exercise, for the safe transportation of their passengers, that high degree of care and prudence that very cautious and prudent persons would exercise under the circumstances of the situation Incident to this duty, their agents are authorized to use all necessary power and means to eject from their carriages or means of conveyance any one whose conduct is such "as to endanger the safety or interfere with the reasonable comfort or convenience of the other passengers. * * * If this duty is neglected, without good cause, and a passenger receives injury which might have been reasonably anticipated or naturally expected from one who is improperly received or permitted to continue as a passenger, the carrier is responsible." The carrier, however, is not an insurer of the safety of the passenger, and liable at all hazards. If a passenger receives an injury through the willful act of his fellow passenger, the carrier is liable only when, by the exercise of the degree of care stated, such act, in view of all the circumstances, might have been reasonably anticipated or foreseen and prevented. Galveston, H. & S. A. Ry. Co. v. Long, 13 Tex. Civ. App. 664, 36 S. W. 485; Putnam v. Ry. Co., 55 N. Y. 108, 14 Am. Rep. 190; Pittsburg, F. W. & C. R. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; International & G. N. R. Co. v. Williams (Tex. Civ. App.) 50 S. W. 732.

The uncontroverted evidence shows that at the time the passenger, Oliver, uncoupled the cars, which resulted in Mrs. Storey's injuries, no employé of appellant was in the car in which she was seated, or had any knowledge whatever that Oliver contemplated or was likely to do an act so inconceivable and dangerous to the lives of his fellow passengers. The conductor at the time was engaged in collecting fares or tickets from passengers in another car, and the brakeman, under his direction, was making or looking after fires in the front part of the train. The train, since leaving Paris, the place where Oliver evidently boarded it, had not traveled the distance of more than 9 miles, and the time required to make the run was about 20 minutes. The conductor began the collection of tickets in the front end of the train, and was proceeding, in the...