Chicago, R. I. & T. Ry. Co. v. Martin

• Decision Date: 12 March 1904
• Citation: 79 S.W. 1101
• Parties: CHICAGO, R. I. & T. RY. CO. v. MARTIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 1101

CHICAGO, R. I. & T. RY. CO. v. MARTIN et al.^*

Court of Civil Appeals of Texas.

March 12, 1904.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by R. Martin and others against the Chicago, Rock Island & Texas Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

N. H. Lassiter, Robt. Harrison, and T. J. McMurray, for appellant. R. E. Carswell, for appellees.

STEPHENS, J.

Joe Martin, a boy over 16 years old, was killed February 11, 1903, in a wreck caused by the negligence of appellant's servants in running a freight train on which he was riding at a dangerously high rate of speed over a rough track, which resulted in breaking the flange of a wheel and the derailment of the train. The deceased, according to the allegations of the petition, was "well grown and of good judgment for a person of his age," and, according to the testimony of his father, "was a very bright boy, quick to catch on, attentive, and intended to make a railroad man of himself." He was familiar with the operation of railroad trains, and, it is not to be doubted, knew it was against the rule of the company for him to ride on a freight train. While the evidence warranted a finding that the train crew knew he was on the train, and even that the conductor had invited him to ride, though it was conflicting on this issue, and that they were guilty of negligence in running the train over a rough track at a rate of speed as high as 60 or 65 miles an hour, it also showed that deceased chose perhaps the most dangerous place on the train—a flat car about the middle of a long freight train—and that he would not have been hurt if he had been in the caboose. We see no escape from the conclusion that in thus undertaking to ride on a freight train, in known violation of an established rule of the railway company, even at the invitation of the conductor, the deceased was guilty of such contributory negligence as precludes the recovery sought and obtained by his parents in this case. It is not pretended, or at least the case was not tried on that theory, that the conductor or others engaged in the operation of the train showed such a reckless disregard of human life in the manner of running the train as to warrant the inference that they intended to kill or injure the deceased. Nor is it pretended nor can it be maintained that the relation of carrier and passenger existed. The full extent of appellant's duty, therefore, was that of exercising the care of a person of ordinary prudence not to injure the deceased; and this, with contributory negligence, was the only issue submitted in the charge. Wilcox v. Railway (Tex. Civ. App.) 33 S. W. 379; Railway v. Sympkins, 54 Tex. 618, 38 Am. Rep. 632; Railway v. Watkins (Tex. Sup.) 29 S. W. 233; Railway v. Rodgers (Tex. Sup.) 36 S. W. 243; Railway v. Cunningham (Tex. Civ. App.) 30 S. W. 368. In the case first cited, which was quite similar to the one before us, Justice Williams, after announcing that one taking a free ride, with the assent of the employés, against the known rules of the company, was not a passenger, used this language: "It does not follow that because he was not a passenger he had no rights whatever. There was the duty resting upon those operating the engine, if they knew of his presence, to avoid...