Galveston, H. & S. A. Ry. Co. v. Long

• Citation: 36 S.W. 485
• Parties: GALVESTON, H. & S. A. RY. CO. v. LONG.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 20 May 1896
• Court: Court of Appeals of Texas

36 S.W. 485

GALVESTON, H. & S. A. RY. CO. v. LONG.¹

Court of Civil Appeals of Texas.

May 20, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by W. C. Long against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Upson & Bergstrom, for appellant. Simpson & Onion, for appellee.

FLY, J.

Appellee sued appellant for damages in the sum of $10,220, arising from a wound in the foot. It was alleged that appellee and his wife in October, 1894, entered a passenger coach of appellant, in the city of Houston, to be transported to San Antonio; that a person named Emmett Townsend also boarded the train at Houston, while in a drunken condition; that the employés, knowing that said Townsend was intoxicated, permitted him to stagger up and down through the train and jostle the passengers; that the employés of appellant also knew that Townsend carried a 45-caliber six-shooter, and while he was passing through the car in which appellee was seated the pistol fell to the floor and was discharged, the bullet inflicting a serious wound on the foot of appellee. There was a verdict for $4,320 in favor of appellee.

The carrier of passengers is held to the exercise of a high degree of care in providing for the comfort and convenience of its passengers, and, incidental to this duty, the power is given to repress and prohibit all disorderly conduct on its means of transportation, and to expel or exclude therefrom any person whose conduct or condition is such as to render acts of impropriety, rudeness, indecency, or disturbance either inevitable or reasonably probable. Sullivan v. Railroad Co. (Mass.) 18 N. E. 678; Putnam v. Railroad Co., 55 N. Y. 108; Ray, Neg. Imp. Dut. § 53. In all of the cases to which our attention has been called, where damages have been allowed on account of the acts of one passenger towards another, the liability of the carrier has been made to depend upon the conduct or condition of the offending passenger being such as to place a prudent person upon notice that interference with other passengers was reasonably to be anticipated. In other words, the carrier will be held liable when, by the exercise of proper care, the acts of violence might have been foreseen and prevented. Britton v. Railway Co., 88 N. C. 544; King v. Railway Co. (Ind.) 18 Am. & Eng. R. Cas. 386; Putnam v. Railroad Co., 55 N. Y. 108; Weeks v. Railroad Co., 72 N. Y. 50; Felton v. Railway Co., 69 Iowa, 580, 29 N. W. 618; Mullan v. Railroad Co., 46 Minn. 474, 49 N. W. 249. A railway company has the power, as above stated, of refusing to receive as a passenger, or to expel, any one who is drunk or disorderly, or whose conduct is such "as to endanger the safety or interfere with the reasonable comfort and convenience of the other passengers, and may exert all necessary power and means to eject from the cars any one so imperiling the safety or annoying others. * * * If this duty is neglected without good cause, and a passenger receives injury, which might have been reasonably anticipated or naturally expected, from one who is improperly received or permitted to continue as a passenger, the carrier is responsible." Meyer v. Railway Co., 4 C. C. A. 221, 54 Fed. 116; Railway Co. v. Hinds (Pa.) 91 Am. Dec. 224; Flint v. Transportation Co., 34 Conn. 554. In the last-cited case a passenger was wounded by the discharge of a gun which fell from the hands of one of a number of drunken soldiers who were engaged in an affray on a boat, and the liability of the carrier was put upon the ground that the passenger was allowed to pass without warning to the part of the boat where the affray was going on, and no effort whatever was made to quell the disturbance. The following charge given by the trial court was commended: "The defendants were bound to exercise the utmost vigilance in maintaining order and guarding the passenger against violence, from whatever source arising, which might reasonably be anticipated or naturally be expected to occur, in view of all the circumstances, and of the number and character of the persons on board." The facts in the case of Putnam v. Railroad Co., above cited, are more nearly similar to the case before us than any we have seen, and in passing upon it the New York court of appeals said: "It may be conceded that Foster, the individual who inflicted the injury resulting in the death of the plaintiff's intestate, was drunk when he came on the car; but so long as he remained quietly by the driver on the platform, neither entering the car nor molesting or annoying passengers in any way, the conductor would not have been justified in refusing to permit him to remain as a passenger. The fact that an individual may have drunk to excess will not, in every case, justify his expulsion from a public conveyance. It is rather the degree of the intoxication, and its effect upon the individual, and the fact that by reason of the intoxication he is dangerous or...