Cook v. Beaumont, S. L. & W. Ry. Co.

• Decision Date: 15 October 1913
• Citation: 160 S.W. 123
• Parties: COOK v. BEAUMONT, S. L. & W. RY. CO.
• Court: Texas Court of Appeals

160 S.W. 123

COOK v. BEAUMONT, S. L. & W. RY. CO.

Court of Civil Appeals of Texas. Austin.

October 15, 1913.

Appeal from Liberty County Court; I. B. Simmons, Judge.

Action by H. G. Cook against the Beaumont, Sour Lake & Western Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Marshall & Harrison, of Liberty, for appellant. Andrews, Ball & Streetman, McDonald Meachum, and W. D. Stephens, all of Houston, for appellee.

RICE, J.

This suit was brought by appellant against appellee to recover damages alleged to have resulted on account of his expulsion from one of its passenger trains. Upon the conclusion of the evidence the trial court instructed a verdict in behalf of appellee, which is assigned as error. No question is raised upon the pleadings; hence there is no necessity for outlining same. On the evening of the 12th of January, 1912, appellant purchased a ticket from appellee's station agent at Beaumont, entitling him to passage over said road to Hardin, a station thereon. Learning that the train was several hours late, he did not offer himself as a passenger over said road until next morning. Before undertaking to board its morning train, however, he inquired at defendant's office at the Crosby Hotel, to ascertain if he could ride upon said ticket, whereupon he was informed by the party therein, supposed to be the agent of the company, that his ticket was good for 24 hours, which had not expired, and directed him to take passage on the next train, stating that it would stop at Hardin, after which appellant boarded said train, replying, in response to the brakeman's inquiry when getting on, that he was going to Hardin. When the conductor came around for tickets he asked appellant if he had bought the ticket that morning, to which he replied that he had not. Whereupon the conductor stated to him that he could not get off at Hardin, because this was a through train, and did not stop there, but that he could ride as far as Hull, the next station. Appellant told him what the agent had stated, and insisted upon being put off at Hardin. The conductor refused to do this, telling him that he must get off at Hull, returning him his ticket, but permitting him to ride to Hull thereon. Upon reaching Hull, appellant disembarked under protest. The latter was a small hamlet, containing a store and some other buildings, besides the station and residence of the station agent, with whom appellant was acquainted, having previously taken dinner with him. Appellant was informed by the conductor, as well as by the brakeman before he left the train, that a local would pass Hull on that afternoon about 7 o'clock going to Hardin, upon which he could take passage. It appears from the evidence that appellee operated two trains a day from Beaumont to Houston, passing Hardin station; one was known as the Gulf Coast Special, which was a through train only stopping at two places between Beaumont and Houston, to wit, Gray and Hull, and did not stop at Hardin; while the other was a local train that stopped at all the stations between Beaumont and Houston. After being thus ejected at Hull, appellant sought to obtain some conveyance to Hardin, but was unable to do so, and after spending three hours there, he concluded to walk to Hardin, arriving there that afternoon about 5:30 o'clock, very much fatigued and wearied by his journey, having carried his suit case with him. The weather was cold, and it was drizzling rain and the road was muddy, and before reaching Hardin he was overtaken by a shower and got wet, from which he contracted a cold, lasting him several days. Appellant was a clergyman, and the purpose of his visit to Hardin was to fill his appointment on the next day, which was Sunday. He testified that as a result of his walk he became stiff and sore, and was unable to fill his appointment the next day and night, and on account of which he suffered damages, for which the suit was brought.

Appellant urges that the court erred in instructing a verdict in behalf of appellee, insisting that the pleadings and evidence raised an issue which should have been submitted for the consideration of the jury, and that it was improper, where such is the case, for the court to usurp the province of the jury and instruct a verdict. Whereas, appellee contends that the instruction was correct because appellant was not entitled to recover under the facts in evidence, for the reason, first, that if it be conceded that there was an issue raised by the pleadings and evidence as to whether or not appellee's agent directed him to take the morning train, with the statement that it would stop at Hardin, nevertheless, if this was a mistake, then the conductor was not bound thereby, but it was his duty to inform appellant of such mistake and give him an opportunity to get off at Hull, which it was appellant's duty to do. Besides this, it is also contended on the part of appellee that no damage accrued to appellant for which appellee was liable, because the injuries complained of were not the...