Galaviz v. International & G. N. R. Co.

• Decision Date: 02 December 1896
• Citation: 38 S.W. 234
• Parties: GALAVIZ v. INTERNATIONAL & G. N. R. CO.
• Court: Texas Court of Appeals

38 S.W. 234

GALAVIZ v. INTERNATIONAL & G. N. R. CO.

Court of Civil Appeals of Texas.

December 2, 1896.

Appeal from district court, Hays county; H. Teichmueller, Judge.

Action for personal injuries by Francisco Galaviz against the International & Great Northern Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Cook & McBride, for appellant. Hogg & Robertson, for appellee.

KEY, J.

The plaintiff sued for damages for injuries caused while disembarking from a freight train. He alleged and testified that a brakeman on the train gave him permission to ride thereon from Taylor to San Marcos; that, when the train was nearing San Marcos, the brakeman unlawfully and negligently compelled him to get off the train while it was in motion; and that, while attempting to do so, his foot was caught between two cars, and injured. There was no evidence tending to show any misconduct or negligence on the part of any one connected with the train except the brakeman. It was shown by uncontroverted testimony that the defendant had a rule, promulgated and in force ever since 1890, prohibiting all persons except its employés from riding on freight trains, and that conductors and brakeman had no power to suspend the rule. The services which a brakeman is expected to render, and the authority conferred upon such an employé, were not shown. In fact, in that regard the record is silent, beyond what may be implied from the fact that the man of whose alleged negligence complaint is made was a brakeman.

Under the doctrine established in Railway Co. v. Black, 87 Tex. 161, 27 S. W. 118, the plaintiff was not a passenger; and under the rule announced in Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, there was no evidence to show that the brakeman, in compelling the plaintiff to get off the train, was acting within the apparent scope of his authority, which was necessary to render the defendant liable for his wrongful conduct. See, also, Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; Receivers v. Armstrong, 4 Tex. Civ. App. 154, 23 S. W. 236. Hence we conclude that the court properly directed a verdict for the defendant, and the judgment will be affirmed. Affirmed.