Stewart v. Int'l&g. N. R. R. Co.

• Decision Date: 07 May 1880
• Docket Number: Case No. 3736.
• Citation: 53 Tex. 289
• Parties: JOE H. STEWART v. THE INTERNATIONAL & G. N. R. R. CO.
• Court: Texas Supreme Court

53 Tex. 289

JOE H. STEWART

v.THE INTERNATIONAL & G. N. R. R. CO.

Case No. 3736.

Supreme Court of Texas.

May 7, 1880.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

The character of the suit and issues of law involved are apparent from the petition. The petition alleged dangerous and permanent injuries suffered by the plaintiff by his fall from a platform at a freight depot, and which consisted chiefly of the following: “Dislocation of his right arm at the shoulder, sprain of both ankles, bruise on the left knee, breaking of the bone of the left elbow, breaking of the cartilage and ligaments of the left elbow, breaking of the cartilage and ligaments of the left wrist, sprain of the left wrist, sprain of the left hip joint, general derangement of the whole system, producing injuries to the optic nerves, causing temporary blindness and soreness of the eyes, all of which said injuries are permanent, and of a nature to seriously affect his ability to make a living in his usual and regular avocations.” The petition alleged negligence in the failure of the railroad company to provide “proper lights and accommodations for passengers at its freight depot,” and that the injuries stated resulted therefrom.

Joe H. Stewart and Fred. Carleton for appellant.

I. It is negligence and breach of contract for a carrier of passengers for hire, to compel them to land at an unusual place of landing, and that such carrier becomes responsible for any injuries incurred by reason thereof. See Angell on Carriers, sec. 531; Story on Bailments, sec. 600; Weed et al. v. Saratoga & Schenectady R. R. Co., 19 Wend., 534;Mobile R. R. Co. v. McArthur, 43 Miss., 180;Memphis & Charleston R. R. Co. v. Whitfield, 44 Miss., 467.

II. It is negligence for a carrier of passengers for hire, not to keep lights about its depots and landing places, where it lands passengers at night. See Patten v. Chicago & N. W. R. R. Co., 32 Wis., 524;Columbus & Ind. Cent. R. R. Co. v. Farrell, 31 Ind., 408;Gaynor v. Old Colony & Newport R. R. Co., 100 Mass., 208; Weiser v. Penn. R. R. Co., 64 Pa. St., 225; Huelsenkamp v. Citizens' R. R. Co., 37 Mo., 537;McElroy v. Nashua R. R. Co., 4 Cush., 400;Taylor v. Grand Trunk R. R. Co., 48 N. H., 304;Beard v. Conn. & Pass. Rivers R. R. Co., 48 Vt., 101.

III. It is the duty of a carrier of passengers for hire, when it lands passengers at night in an unusual place, to provide lights by which they may find their way, and that if they fail so to do, and injury results, if the passenger uses ordinary caution and prudence, the carrier is liable to him for his damages sustained. See same authorities as those referred to for propositions 1 and 2.

Peeler & Maxey for appellee.

I. Unless by statute it is made the duty of a railroad company to keep lights at its depots, the absence of such lights is not negligence in law. There was not at the time of the alleged default, and has never been, any law of this state requiring railroad companies to keep lights at their depots, and plaintiff nowhere alleges in his petition that it was the duty of the defendant to keep lights at the freight depot at which he says he was landed. In the judgment plaintiff expressly waives any damages for anything occurring anterior to his landing at the freight depot. He nowhere alleges that he was not safely landed, and the demurrer was only sustained as to so much of plaintiff's petition as seeks to recover from the defendant for alleged injuries after he had safely alighted and landed from the cars of the defendant. Texas & Pacific R. R. Co. v. Murphy, 46 Tex., 370.

II. When the doing of a particular thing, such as keeping lights, is not imposed as a duty by law, it must arise from general custom known to and acted on by the public before the omission to do it is negligence, and the existence of the custom upon which the breach of duty and consequent right of recovery would depend, must be alleged. Plaintiff nowhere alleges in his petition that it was the custom of the defendant to keep lights at its freight depot. He waives in the judgment all damages for not being landed at the passenger depot. He wholly fails to set up any custom or duty of the defendant as to lights at either depot. Texas & Pacific R. R. Co. v. Murphy, 46 Tex., 370; R. R. Co. v. Doyle, 49 Tex., 190;B. & Q. R. R. v. Harwood, 90 Ill., 425;M. H. & O. R. R. v. Gordon, 41 Mich., 433;Hahn v. S. R. R. R., 51 Cal., 605;Ream v. P. & F. R. R., 49 Ind., 93.

III. The mere absence of lights at a freight depot is not negligence per se; nor was it the duty of the defendant to keep lights at its freight depot. Forsyth v. B. & A. R. R., 103 Mass., 510.

IV. The mere omission of the defendant to have lights at its freight depot, even if it had been required so to do by statute, would not of itself render the defendant liable. To make such omission negligence for which the plaintiff can recover, it must be averred and proved that injury resulted from this omission as the proximate cause. Brandon v. Manuf'g Co., 51 Tex., 121; H. & T. C. R. R. v. Nixon, 3 Tex. L. J., 177; G. H. & S. R. R. v. Le Gierse, 51 Tex., 189; R. R. Co. v. Doyle, 49 Tex., 190; M. & C. R. R. v. Chastine, 54 Miss., 503;Hewison v. New Haven, 34 Conn., 136; O. M. R. R. Co. v. Hatton, 60 Ill., 12; and authorities cited under second counter proposition.

V. When plaintiff safely landed from the cars at the freight depot of defendant, his contractual relations with the defendant as passenger ceased. Under his waiver in the judgment, if he suffered injury subsequently, it was not as a passenger. He must therefore state facts showing that it was necessary or proper for him to be on the platform other than as a passenger; and that as to him particularly, or as a member of the public at large, it was the legal duty of the defendant to have kept lights, and that its failure to discharge this duty was the proximate cause of his stepping off the platform, the proximateness of cause being a question of law. Brandon v. Manuf'g Co., 51 Tex., 121;Pullman Palace Co. v. Barker, 4 Col., 344; J. R. R. v. Parmalees, 51 Ind., 42; I. C. R. R. v. Green, 81 Ill., 19; and authorities cited under preceding and second counter proposition.

VI. The case being submitted to the court below on demurrer to the petition, and the demurrer being sustained as to a part of the petition, and the rest of the petition being abandoned and judgment final rendered so as to enable plaintiff to appeal, the question presented in the court below, and in this court, is purely one of law, viz.: are the facts stated in that part of the petition to which the demurrer is sustained sufficient to constitute negligence as matter of law. Plaintiff does not complain that the question of negligence was not submitted to the jury as one of fact. He did not ask leave to amend, but elected to stand on the judgment on demurrer. He assigns as his sole error that his petition did set out facts which constituted a good cause of action. Wood v. Evans, 43 Tex., 175;Goodlett v. Stamps, 29 Tex., 121;Brandon v. Manuf'g Co., 51 Tex., 121.

VII. Defendant can only be made to pay damages on the ground that it has broken the law. When the judgment of the court is challenged on an undisputed state of facts, the court, instead of confessing its inability to state what the law is, should decide the question, and it is not a charge or comment on the weight of evidence to announce the law on facts admitted by demurrer. Brandon v. Manuf'g Co., 51 Tex., 121; H. & T. C. R. R. v. Smith, 3 Tex. L. J., 386; Goldstein v. C., M. & St. P. R. R., 46 Wis., 404;Williams v. A., T. & S. F. R. R., 22 Kan., 117; P. R. R. v. Fries, 87 Pa. St., 224; Donaldson v. M. & St. P. R. R., 21 Minn., 15.

VIII. If defendant is made to pay damages, it is because it has failed to come up to a legal standard of duty. It is for the court to say on undisputed facts arising on the pleadings, what this legal standard is, and not leave the parties to the accidental feelings and varied whims of a jury. Brandon v. Manuf'g Co., 51 Tex., 121;Fletcher v. A. & P. R. R., 64 Mo., 484;Maher v. Same, 64 Mo., 267;Goldstein v. C., M. & St. P. R. R., 46 Wis., 404; and authorities cited under preceding proposition.

GOULD, ASSOCIATE JUSTICE.

The questions presented in this case grow out of the action of the court in sustaining a demurrer to the petition.

The petitioner alleges the purchase by him from defendant of a ticket from Round Rock to Austin, whereby he became entitled to ride on the cars of defendant from Round Rock to Austin on said day (July 2, 1877); that defendant did not leave petitioner at its usual place of stopping in the city of Austin, to wit, at the passenger depot, but at the freight depot. He further alleges:

“That on the arrival of the cars of the defendant as aforesaid at the freight depot aforesaid, petitioner, with numbers of other passengers in the cars of defendant, at the request of the employes of defendant and by their instruction, emerged from the cars of defendant, petitioner supposing and believing that he was at the regular passenger depot of defendant, when in truth and in fact, as before alleged, he was at the freight depot of defendant. And petitioner further alleges, that he was not advised or informed by any agent or employe of defendant that the cars had not stopped and were not then at the regular passenger depot of defendant; that at the time of the arrival of petitioner as aforesaid on the cars of the defendant as aforesaid, it was dark, being about the hour of 12:30 A. M.; that the defendant had no lamps in and about its said freight depot, by the light of which petitioner and other passengers in said cars could find their way. That in...