Chicago, R. I. & P. Ry. Co. v. Burns

• Citation: 104 S.W. 1081
• Parties: CHICAGO, R. I. & P. RY. CO. v. BURNS.
• Decision Date: 08 June 1907
• Court: Texas Court of Appeals

104 S.W. 1081

CHICAGO, R. I. & P. RY. CO. v. BURNS.

Court of Civil Appeals of Texas.

June 8, 1907.

Rehearing Denied October 12, 1907.

Appeal from District Court, Montague County; D. E. Barrett, Judge.

Action by A. L. Burns against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lassiter & Harrison and Jos. A. Graham, for appellant. Chambers & Cook and J. L. Rudy, for appellee.

CONNER, C. J.

Upon this appeal appellant complains of a judgment in the sum of $1,000 rendered in appellee's favor as damages for injuries received by him in Oklahoma while in charge of a car of horses and household goods transported over appellant's line of railway. Appellee alleged that he contracted with the defendant to ship the property mentioned from Marlow, Ind. T., to Torrance, N. M., and that, under the terms of the contract of shipment, he accompanied the horses, frequently riding in the car with them in order to look after them; that near Doxey, in the territory of Oklahoma, the car was thrown from the track and turned over and wrecked on account of defendant's negligence in the manner of operating the car and in respect to the condition of the roadbed; that his head, back, and side were severely bruised, and some of his ribs broken, whereby he was permanently injured. Appellant pleaded the general denial and the written contract under which the shipment was made, containing the following special provision: "The person in charge of the live stock governed by this contract shall remain seated in the caboose car attached to the train, while the same is in motion, and whenever he shall leave the caboose car, or pass over or along the cars or track, he shall do so at his own risk of personal injury." Appellant charged that, in direct violation of this provision, appellee entered into and rode in the car with his live stock and other commodities shipped therein, and was there riding at the time and place of the injury. It was further averred that appellee was negligent in riding in the freight car with the stock instead of the caboose, which was fitted for the accommodation of passengers, and that such negligence was the proximate cause of his injury. Appellant also pleaded the following statute in force throughout Oklahoma Territory at the time plaintiff sustained his injury: "That any person other than a railway employé in the discharge of his duty, who without authority from the conductor of the train rides on top of any car, coach, engine or tender, or on the drawheads between the cars, or under the cars, or on the trucks, or in any freight car or on the platform of any baggage car, express car or mail car of any train in this territory shall be guilty of a misdemeanor." It was averred that appellee at the time he received his injuries was riding in the freight car without the consent of the conductor, and hence in violation of the statute quoted. Appellee replied by supplemental petition denying appellant's averments, and alleging that he only had a verbal contract for the shipment of the stock.

Appellant assigns error to the action of the court in admitting appellee's testimony tending to support his allegation of a verbal rather than a written contract of shipment, and also complains of the action of the court in refusing special charge No. 4, relating to this subject. Inasmuch, however, as the court expressly charged the jury that the special provision of the contract quoted was valid and would preclude a recovery by appellee unless waived, we need not further notice the objections indicated.

The second paragraph of the court's charge, to which the second assignment of error relates, is as follows: "If you believe from the evidence that the plaintiff, A. L. Burns, was lawfully riding in one of defendant's emigrant cars, and that said car was thrown from the track and wrecked through the negligence of defendant company, in not having used ordinary care to have its roadbed in a safe state of repair, but had negligently permitted the ties thereon to become decayed, rotten, and weak, and that the same was the cause of said car leaving the track, and if you further believe that in said wreck plaintiff received any injury to his back, side, and head, then you will find for plaintiff such amount as you may believe from the evidence is a fair and just pecuniary compensation for said injuries." This is objected to on the ground that the charge ignored app...