Ft. Worth & D. C. Ry. Co. v. Brown

• Decision Date: 26 June 1918
• Docket Number: (No. 1378.)
• Citation: 205 S.W. 378
• Parties: FT. WORTH & D. C. RY. CO. v. BROWN.
• Court: Texas Court of Appeals

Page 378

205 S.W. 378

FT. WORTH & D. C. RY. CO. v. BROWN.

(No. 1378.)

Court of Civil Appeals of Texas. Amarillo.

June 26, 1918.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by W. M. Brown against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. A. Clarke, of Quanah, and Thompson, Barwise & Wharton, of Ft. Worth, for appellant. Ed Yarbrough, of Electra, for appellee.

BOYCE, J.

Appellee, W. M. Brown, recovered of appellant, the Ft. Worth & Denver City Railway Company, damages for personal injuries alleged to have been sustained while a passenger on said railway company, and while in its depot at Chillicothe, waiting for a train. The appellee was traveling by rail from Blackwell, Tex., to Electra, Tex., and changed cars from the Kansas City, Mexico & Orient Railway Company to the appellant railway company at Chillicothe. He had to wait at Chillicothe several hours for a train to Electra, and spent this time in appellant's depot at Chillicothe. The appellee was an old man about 74 years old, and his sight was not very good. While waiting at the depot he engaged in conversation with another person sitting in one of the seats in said depot, and attempted to sit down in the seat next to such person. The bottom of the seat was out, leaving only the frame work, and the appellee fell partly through the seat, and sustained injuries for which he recovered this judgment.

A number of assignments contend that the evidence was insufficient to warrant a finding that appellee was a passenger, and that the court below erred in not so holding. Error is also assigned on the ground that the court assumed in his charge that appellee was a passenger. Appellee's petition negatives the fact that he had a through ticket, it being alleged that he purchased a ticket over appellant's line of road at Chillicothe. The evidence does not show whether appellee had purchased a ticket at the time of the injury or not; in fact, it is silent as to whether he ever had a ticket over appellant's road or paid his fare from Chillicothe to Electra. He did, however, board the train at Chillicothe, and was transported by appellant to Electra, and it is to be presumed, we think, that he either purchased a ticket or paid his fare on the train. It does not appear definitely just how long after the accident before the arrival of such train; the witnesses describing the interim between the time of the accident and the boarding of the train by appellee as "just a little while" and "a few minutes." One who goes to the depot of a carrier within a reasonable time before the time scheduled for the departure of a train on which he intends to take passage, with the intention in good faith of paying his fare and boarding such train, is to be deemed a passenger during the interim between his arrival and that of the train, even prior to the time of his actual purchase of the ticket entitling him to transportation. Texas Midland R. R. Co. v. Griggs, 106 S. W. 411; 4 R. C. L. 1033. The evidence here is conclusive that appellee was in defendant's depot, intending to board its train, and that he did subsequently do this, and, as we have already stated, we think it is to be presumed that he paid the regular transportation charges.

We are also inclined to think that the evidence is so conclusive that the injury occurred within that reasonable period of time prior to the departure of the train referred to in the rule stated as that, under the circumstances, there was no harmful error in the action of the court in assuming that appellee was a passenger, and we would not be disposed to reverse the case on this assignment. The facts will probably be developed more fully on this phase of the case on another trial, and the court will be controlled in its action in reference to the submission of this issue by the rule stated.

Complaint is made of the charge of the court which imposed upon the appellant company "in the treatment of their passengers awaiting trains in their depots * * * that high degree of care that a very cautious and prudent person would have exercised under the same or similar circumstances," on the ground that the rule requiring the exercise of that high degree of care as stated applies only to those duties in connection with the actual transportation of the passenger, and that only ordinary care is required in reference to the condition of its station and premises occupied by its passengers preliminary to or upon termination of the actual transportation. There are some authorities which sustain this proposition. C. J. vol. 10, p. 910. But it seems to be settled by the decisions of this state that the rule of high degree of care is applicable alike in both situations stated. St. Louis & S. W. Ry. Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; M., K. & T. Ry. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 254 (writ of error denied); S. A. & A. P. Ry. Co. v. Turney, 33 Tex. Civ. App. 626, 78 S. W. 256 (writ of error denied); Texas Pacific Railway Co. v. Cameron, 149 S. W. 709 (writ of error denied); G., C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583; R. C. L. vol. 4, p. 1222, § 644.

Appellant contends that appellee was guilty of contributory negligence as a matter of law in sitting down in the seat without ascertaining that its bottom was out....