Blake v. Kansas City Southern Ry. Co.

• Decision Date: 18 February 1905
• Citation: 85 S.W. 430
• Parties: BLAKE v. KANSAS CITY SOUTHERN RY. CO.
• Court: Texas Court of Appeals

Page 430

85 S.W. 430

BLAKE v. KANSAS CITY SOUTHERN RY. CO.

Court of Civil Appeals of Texas.

February 18, 1905.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by J. F. Blake, by next friend, Henry Blake, against the Kansas City Southern Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Chas. S. Todd and T. D. Rowell, for appellant. Glass, Estes & King, for appellee.

TALBOT, J.

This suit was originally instituted by appellant against the Kansas City Southern Railway Company on the 27th day of May, 1902, to recover damages for personal injuries alleged to have been sustained by him by reason of having been ejected from one of appellee's passenger trains, while in rapid motion, by a Pullman palace car conductor. On the 1st day of February, 1903, by an amended petition, the Pullman Palace Car Company was made a party defendant, and appellant sought to recover a joint judgment against both the appellee and the said Pullman Palace Car Company for the sum of $2,000, alleging a joint liability. At the October term of the court, 1903, appellant and the Pullman Palace Car Company effected a settlement by compromise, the said company agreeing to pay the appellant the sum of $50 for all matters in controversy between them. Appellant then filed his third amended petition against appellee alone, alleging the same cause of action, with prayer for judgment. Appellee pleaded a general denial, and the said compromise judgment and payment thereof to appellant in bar of his right to recovery herein. Also that the conductor who ejected appellant from the train was not employed by appellee, and that appellee had no control over him, but that said conductor was under the control and in the employment of the said Pullman Palace Car Company. A trial was had before the court without a jury, and resulted in a judgment for appellee, from which this appeal is prosecuted.

The facts are: That on December 23, 1901, appellant, John F. Blake, a boy about 18 years of age, got on the rear end of a Pullman palace car in charge of the Pullman conductor, which was the rear car of one of appellee's passenger trains, for the purpose of riding to a sawmill some miles distant. He did not offer to pay, nor did he intend to pay, anything to ride on said car, and was a trespasser thereon. The Pullman conductor discovered Blake on the platform of said car, and ordered him to get off, and by drawing a pistol and threatening to shoot him, and by actually firing off said pistol, caused Blake to jump from said car, which resulted in serious and permanent injury to him. No proof of authority from the Kansas City Southern Railway Company for the Pullman conductor to eject appellant was shown; nor was it shown that the Pullman conductors on appellee's road had ever before ejected a trespasser from the train. The said Pullman conductor was in the employ and paid by the Pullman Palace Car Company, and was under the control and subject to the orders of that company. Said Pullman conductor was not under the control or subject to the orders of appellee, the Kansas City Southern Railway Company.

At the October term of the court, 1903, appellant and his next friend, Henry Blake, and the Pullman Palace Car Company, which was then a party defendant in this cause, entered into the following written agreement, to wit:

"J. F. Blake, by Next Friend, Henry Blake, vs. Kansas City Southern Ry. Co. and Pullman Palace Car Company. No. 8,152. In the District Court, Bowie County, September Term, A. D. 1903, October 2nd, 1903. The plaintiff, J. F. Blake, a minor, by his father and next friend, Henry Blake, appearing in person and by counsel, and the defendant, Pullman Palace Car Company, appearing by its counsel, by way of compromise of all the matters in controversy in this suit between the plaintiff and the defendant, Pullman Palace Car Company, have agreed and consented, and by these presents do agree and consent, by and with the approval of the court, after the court is fully advised in the premises, that judgment may be rendered in this cause in favor of the plaintiff, J. F. Blake, suing by his father and next friend, Henry Blake, against the defendant, Pullman Palace Car Company, for the sum of fifty ($50.00) dollars and the costs incurred as between said plaintiff and said defendant, Pullman Palace Car Company, for which execution may issue, unless the said fifty ($50.00) dollars for the use and benefit of said J. F. Blake, as in such cases provided by law, be paid over to the clerk of the court within twenty days from the date hereof, in the event of which payment this judgment shall be satisfied. T. D. Rowell and Todd & Armistead, Attys. for the Plaintiff, J. F. Blake, Henry Blake, next friend of J. F. Blake. McCormick & Spence, Attys. for Pullman Co., Deft. Witnesses (Signatures): Henry Blake, J. J. Gray, J. M. McCormick.

"The foregoing agreement is approved this Oct. 2nd, 1903. J. M. Talbot, Judge 5th Judicial District of Texas."

This compromise and settlement was submitted to and approved by the presiding judge of the district court in which said suit was pending, and judgment entered in accordance with the terms thereof, at the October term of said court, 1903, which was agreed to by plaintiff and his next friend, Henry Blake, his attorneys of record, and the attorneys for the Pullman Palace Car Company. The sum of money named in said agreement of compromise, and for which amount said judgment was rendered in favor of appellant and against said Pullman Palace Car Company, was duly paid by said company, and said judgment fully paid off and discharged in the manner and as provided by the law in such cases. The said judgment, in addition to the compromise agreement, recited: "It is therefore considered, ordered, and adjudged by the court, in accordance with the foregoing agreement of compromise, that the plaintiff, J. F. Blake, by his next friend, Henry Blake, have and recover of and from the defendant, the Pullman Palace Car Company, the sum of fifty ($50.00) dollars and all costs incurred as between the plaintiff and said Pullman Palace Car Company, for which let execution issue; said sum of fifty ($50.00) dollars to be paid over to the clerk of this court within twenty (20) days from this 2d of October, 1903, and to be disposed of for the benefit of said minor as provided by law. It is further ordered that this case stand for trial as between the plaintiff and the Kansas City Southern Railway Company."

1. The first question arising upon this appeal is: Did the relation of master and servant exist between appellee and the Pullman car conductor at the time and in respect to the ejection of appellant from the train in question? The...