G., C. & S. F. R'Y Co. v. McGown

• Decision Date: 12 March 1886
• Docket Number: Case No. 2204
• Citation: 65 Tex. 640
• Parties: G., C. & S. F. R'Y CO. v. JOHN MCGOWN.
• Court: Texas Supreme Court

65 Tex. 640

G., C. & S. F. R'Y CO.

v.JOHN MCGOWN.

Case No. 2204

Supreme Court of Texas.

Mar. 12, 1886.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

This was a suit by John McGown against the Gulf, Colorado & Santa Fe Railway Company for damages for personal injuries caused by the derailment of the company's passenger train, on which the plaintiff was at the time a passenger, and traveling on a free pass. The petition laid the damages at $20,000.

The specific charges of negligence were that the road-bed was defective and in bad condition, through rotten and defective ties, unevenness, and defectively spiked rails; that the train was running with great and unusual speed around a curve, where such speed was dangerous; that the number of employes on the train was not sufficient, and that they were not stationed, as required by law, at such places as to be most conducive to the safety of train and passengers; that the train was running at a dangerous speed for the condition and character of the track at the place of accident; that one or more of the wheels under one of the derailed cars was loose and in a condition of great danger, which was known to defendant before the accident.

Defendant pleaded general denial, denial of all negligence, and allegations that the accident occurred without fault or negligence of defendant; that plaintiff was traveling on a free pass, given to him without consideration, as a gratuity, upon which was printed this contract: “Free passengers assume all risks of accidents to their persons and property, without claims for damages upon the corporation,” which condition was known to plaintiff when he accepted and used the pass, and was assented to by him; that plaintiff knew of the condition of the pass when he accepted the same, and knew that defendant would not have given him the pass or allowed him to use the same, had it not believed that he had, in good faith, assented to and would abide by its condition, and that he harbored the secret and undisclosed intention to repudiate its condition, notwithstanding his apparent assent thereto, in case of injury to him while traveling on the same.

The cause was tried before a jury, and resulted in a verdict and judgment for the plaintiff for $1,000. The defendant appealed.

On the trial, the court, after defining to the jury the degree of diligence exacted of railway companies in the carriage of passengers, instructed them as follows: “These principles of law apply equally whether such passenger was a passenger for hire, or was riding on a free pass, such as was in evidence in this case, and if you believe from the evidence that the plaintiff, John McGown, was riding on defendant's train as a passenger, on a free pass, a copy of which is in evidence, and while he was on the train, the car in which plaintiff was riding was derailed and thrown from the track, and that thereby he sustained personal injuries, he would be entitled to your verdict for such damages, * * * * unless you believe, from the evidence, that such injuries were not caused by the negligence of the company, or by the negligence of some employe, or employes, of defendant company.”

Ballinger, Mott & Terry, for appellant, that a railroad company may, by contract with a free passenger, exempt itself from liability for injury to such passenger, from whatever cause, except the gross negligence of its board of directors, or general managing officers, cited:

Kinney v. Central Ry. Co., 32 N. J. L. 407;Kinney v. Central Ry. Co., 34 N. J. L. 513;Wells v. N. Y. C. Ry. Co., 24 N. Y., 181;Perkins v. N. Y. C. Ry. Co., 24 N. Y. 196;Bissell v. N. Y. C. Ry. Co., 25 N. Y., 442; McCawley v. Furness Ry. Co., 8 Q. B. 57; Gallin v. L. & N. W. Ry., 10 Q. B. 212; Hall v. N. E. Ry. Co., 10 Q. B. 437; Duff v. G. N. R. Co., 20 Albany, L. J. 398; Alexander v. Ry. Co., 33 Upper Canada (Q. B.) 474; Poucher v. Ry. Co., 49 N. Y. 263.

That a railroad company may, by contract with a free passenger, exempt itself from liability for all injury to such passenger, except such as may occur through the gross negligence of the company, or of its servants or agents, they cited: Ill. C. R'y v. Read, 37 Ill. 484;Boyce v. Anderson, 2 Peters 151; 2 Wood's R'y Law, 1440; Williams v. Taylor, 4 Porter (Ala.) 334; Arnold v. Ill. C. R'y, 83 Ill. 273; s. c. 25 Am. Rep. 383;Ind. C. R'y v. Munday, 21 Ind. 48.

Howard Finley and Hume & Shepard, for appellee, that a railway company is bound to exercise a very high degree of care in the carriage of passengers for hire, cited: H. & T. C. R'y Co. v. Gorbett, 49 Tex. 573;Tex. & St. L. R'y Co. v. Suggs, 62 Tex. 323; I. & G. N. R'y Co. v. Halloren, 53 Tex. 46; Railroad Co. v. Horst, 93 U. S. 291;Phila. & Reading R'y Co. v. Derby, 14 How. 486; Thompson's Law of Carriers, p. 200, secs. 4, 7, 9; Sherman & Redfield on Neg. sec. 266, et seq.; Louisville C. R'y Co. v. Weames, 8 A. & E. R'y Cases, 499, and authorities cited in note thereto; Lemon v. Chansler, 68 Mo. 340.

That public policy demands that the same degree of care shall be exercised in the carriage of free passengers as in the carriage of those for hire, they cited: Prince v. I. & G. N. R'y Co., 5 Tex. Law Rev. 303; T. & P. R'y Co. v. Garcia, 62 Tex. 285; H. & T. C. R'y Co. v. Hampton, 5 Tex. Law Rev. 579; Phila. & Reading R'y Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 How. 469; R'y Co. v. Lockwood, 17 Wall. 357;R'y Co. v. Stevens, 95 U. S. 655;Lemon v. Chansler, 68 Mo. 340;Todd v. Old Colony R'y Co., 3 Allen 18;Wilton v. Middlesex R'y Co., 107 Mass. 108; F. R'y Co. v Weir, 37 Mich. 111;Seybolt v. R'y Co., 95 N. Y. 562; s. c., 47 Am. Rep. 75;Indianapolis R'y Co. v. Beaver, 41 Ind. 493.

That contracts limiting the liability of carriers of passengers are contrary to public policy, and, if made, will not be enforced, they cited: R'y Co. v. Stevens, 95 U. S. 655, sup. 660; R'y Co. v. Lockwood, 17 Wallace 357; Cooley on Torts, 686; Sherman & Redfield on Neg. sec. 274, and notes; Lawson's Contracts of Carriers, p. 278, sec. 218; Id. 273, sec. 215; Id. 279, et seq.; Jacobus v St. P. & C. R'y Co., 20 Minn. 125; O. & M. R'y Co. v. Selby, 47 Ind. 472;Rose v. Des Moines Valley R'y Co., 39 Iowa 246;Mobile & O. R'y Co. v. Hopkins, 41 Ala. 486; R'y Co. v. Little, 71 Ala. 614; C., P. & A. R'y Co. v. Curran, 19 Ohio, St. 1; Knowlton v. Erie R'y Co., 19 Ohio St. 260; Penn. R'y Co. v. Butler, 57 Pa. St. 335; Kimball v. B., C. & M. R'y Co., 13 A. & E. R'y cases, 55, and note p. 58; Abell v. West Md. R'y Co., 20 A. & E. R'y cases, 503; L. B. R'y Co. v. Chenowith, 52 Pa. St. 382.

STAYTON, ASSOCIATE JUSTICE.

There was such evidence as to justify a verdict in favor of the plaintiff if he had been an ordinary, fare-paying passenger. The charge assumes that the same degree of care is incumbent upon a carrier of passengers in the case of one traveling on a free pass as in the case of a passenger paying full fare, and if this be not the law, the charge given was erroneous, and some of the charges asked and refused should have been given.

The appellee applied for and received a free pass from Galveston to Fort Worth, and to return from the latter to the former place, which on its face had the following words: “Good for one trip only, upon conditions endorsed hereon, when countersigned,” etc. On the back of the pass was the following: “Not transferable. If presented by any other person than the individual named hereon, the conductor will take up this ticket and collect fare. Free passengers assume all risks of accidents to their persons and property, without claims for damages upon the corporation. Good for passage only when signed by the person to whom issued.”

The appellee was traveling on this pass, which he presented to the conductor, who detached therefrom the coupon evidencing his right to travel from Galveston to Fort Worth, gave him a check and returned the pass to him, without requiring him to sign it. Under the evidence, the fact that he used the pass without signing it we deem a matter of no importance. Having received and used it to procure free passage, he must be held to have consented to its conditions as fully as though he had signed it.

Treating the pass as the evidence of a contract between the parties, and giving to it the most favorable construction for the appellant, the question in the case broadly stated is, can a public carrier of passengers so contract as to relieve itself from liability for an injury to a passenger, from the negligence of the carrier or its servants, in the course of their employment? That there are many cases which hold that a public carrier of passengers may so limit its liability, cannot be questioned. Such is the rule asserted in the following English cases: McCawley v. Furness Ry. Co., 8 Q. B. 59; Gallin v. Ry. Co., 10 Q. B. 215; Neale v. Ry. Co., 10 Q. B. 440.

In Wells v. Ry. Co., 24 N. Y. 181, it was held, by a divided court, that such contracts were valid, and that it was immaterial whether the negligence of the agents be slight or gross; that the carrier might thus protect itself from liability for an injury resulting from any degree of negligence of its agents. The opinion, in effect, however, holds that while an individual pursuing the business of passenger carrier cannot exempt himself, by contract, from liability for an injury that results from his gross negligence, yet, that a corporation pursuing that business is not liable for the gross negligence of its agents.

In Perkins v. Ry. Co., 24 N.Y. 196, it was held that while a railroad corporation cannot exempt itself from liability to a passenger for damage resulting from its own willful misconduct or recklessness, which alone is construed to constitute negligence, yet, in respect to gratuitous passengers, it may contract for exemption from liability for any degree of negligence in its servants, other than the board of directors or managers, who represent the corporation itself for all general...