Gulf, C. & S. F. Ry. Co. v. Green

• Decision Date: 01 November 1911
• Parties: GULF, C. & S. F. RY. CO. v. GREEN.
• Court: Texas Court of Appeals

141 S.W. 341

GULF, C. & S. F. RY. CO. v. GREEN.

Court of Civil Appeals of Texas. Austin.

November 1, 1911.

On Motion for Rehearing, November 29, 1911.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by Sanford Green, by W. J. Green, his next friend, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills and A. H. Culwell, for appellant.

RICE, J.

This suit was instituted to recover damages for the alleged wrongful ejectment of appellee Sanford Green from the cars by appellant's conductor, it being charged that he was carried by his station in the nighttime and ejected at a lonely place, and as a result thereof sustained serious and permanent injuries. Appellant answered by general and special exceptions, and, further, that the station of Cameron, which was the destination of the boy Sanford Green, was announced in the car in which he was riding just before the train reached that station, at which time the boy was asleep and failed to alight, owing to the fact that he was asleep; that he was ejected at a convenient place; and that the employés of the company, in so ejecting him, had no notice that he would suffer injury thereby. There was a jury trial, resulting in a verdict and judgment for plaintiff, from which appellant prosecutes this appeal.

It appears from the evidence that on the 13th of October, 1909, plaintiff's father purchased a ticket at Featherstone, Okl., for plaintiff, who was then a boy 13 or 14 years of age, for Cameron, Tex., and thereafter placed him on board of the cars for his destination. The train upon which he was riding arrived at Cameron some time after 2 o'clock on the morning of the 14th of October, at which time the boy was asleep, and did not hear the announcement of the name of the station which it is claimed was made by appellant's employé, and for which reason, it is presumed, he was carried beyond said station. After passing the station some 2½ miles, the conductor aroused and compelled the boy to alight from the train, telling him before he left the train that he had reached his station, and that the depot was only a short way back, but, after he had alighted from the car, he stated to him that it was some mile or such distance up the track, and immediately started the train, leaving the boy on the ground. The boy was not awakened at Cameron by the conductor or porter, and it appears that his hat check, indicating his destination, had not been taken up by the conductor. There was no demand on the part of the conductor that he should pay his fare to the next station, nor was anything said about it at the time he was ejected; but the boy testified that he would have been willing to pay his fare, if he had known that he was not at a station when he was put off. He was ejected in Little River bottom, about 2½ miles from Cameron. The night was very dark, and it is not shown that he was near any house. The boy was a stranger, never having been in the state. The evidence shows that this bottom was spanned by a long trestle and bridge, and that the boy undertook at once, as directed by the conductor, to go to the depot, encountering this trestle or bridge, which he undertook to cross by "cooning" it, and while so doing a rapidly approaching train from the south ran onto the trestle, whereby the boy was greatly frightened, though he escaped unhurt, reaching the opposite side of the bridge before the train passed. It is abundantly shown by the testimony that from this fright he experienced a great nervous shock, by reason of which his mind was affected, and he was unable to sleep or rest at night on account of nightmares and dreams, from which, when aroused, he would scream that the train was running over him. This condition was shown to have continued for a long while, and physicians testified that they were unable to say how long he might remain in this condition.

The chief contention on the part of appellant is that the court erred in refusing to grant a new trial on the ground that the evidence failed to sustain the judgment.

The only issue submitted for the consideration of the jury by the charge of the court was whether or not the appellant was guilty of negligence in compelling the boy to disembark from the train at the time and place under the circumstances indicated, telling the jury that he, after leaving Cameron, had ceased to be a passenger, and if they believed that the company was guilty of negligence in causing him to disembark, and that the same was the direct and proximate cause of his leaving the car and being injured, then to find for the plaintiff. It is the contention of appellant that it was not its duty to awaken appellee, but was only required to announce the station before reaching Cameron, and to stop a sufficient length of time to allow passengers to disembark from the train, all of which it did, whereby appellee, on account of his failure to leave the train at Cameron, became a trespasser, and it had the unrestricted right to compel him to leave the train at any point after passing Cameron without being liable therefor. Counsel for appellant has cited us to cases announcing the doctrine that it is not the duty of a railway company under such circumstances to awaken a sleeping passenger, and that it is not required, without payment of additional fare, to carry the passenger to the next station, and also to cases which establish the doctrine that the company under such circumstances would not ordinarily be liable in damages for the expulsion of a passenger between stations. But, while this we concede to be the true rule, yet it is not without limitation or exception. We think that, notwithstanding the right thus to expel a traveler who has been carried beyond his destination on account of his own fault, still the railroad company rests under the duty of not putting him off at an unsafe, insecure, or dangerous place, which might jeopardize the health or likely injure the life of the passenger. In several of the states statutes have been enacted forbidding railway companies from ejecting passengers between stations, but requiring them to proceed to the usual and customary stopping point before doing so. See note to Burch v. Baltimore & Potomac R. R., 26 L. R. A. 129, for a collation of such statutes and decisions thereunder.

There was formerly such a statute in Texas (Paschal's Dig. art. 4892), but this provision was omitted in the revision of the statutes and has not been re-enacted, and is therefore no longer a law in this state. See, also, T. & P. Ry. Co. v. Casey, 52 Tex. 112. And, in states where there is such a statute, recoveries have been allowed where passengers were put off between stations, irrespective of the manner of their ejectment, or the character of the place at which they were expelled; but, in the absence of such statutory provision, it seems that the company is only liable in the event that such expulsion is accompanied by unnecessary force or violence, or the ejectment was made at an improper place, such as would jeopardize the life or health of the passenger, and injury was proximately caused therefrom. See note to Burch v. B. & P. Ry. Co., supra; the question of liability being one of fact for the jury, under all the circumstances of the case. T. & P. R. R. Co. v. McDonald, 2 Willson Civ. Cas Ct. App. § 164; I. & G. N. R. R. Co. v. Gilbert, 64 Tex. 536; International & G. N. R. Co. v. Smith (Sup.) 1 S. W. 565 (Oct. 19, 1886); Malone v. Pittsburg & L. F. R. R. 152 Pa. 393, 25 Atl. 638; Hall v. S. C. R. F. Co., 28 S. C. 261, 5 S. E. 623; Ill. Cent R. R. v. Latimer, 28 Ill. App. 552. In Burch v. Baltimore & Potomac R. R., supra, it was said, in discussing the right of the company to eject a person wrongfully upon its train: "It may not eject him with undue violence It may not eject him at an unsafe or dangerous place, upon a trestlework, for example or in a marsh or in a desert, or upon a bank of snow. Then again, when such trespasser is a person more or less incapable of taking care of himself—a child, a lunatic, an imbecile, a person under the influence of intoxicating liquor—consideration of humanity will demand that they receive different treatment from that awarded to the ordinary adult man, in full possession of all of his faculties, as was the plaintiff in this case." See Louisville, C. & L. R. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186. In Moore on Carriers, § 11, p. 749, where this question is discussed, it is said: "In the absence of a statute providing at what places the carrier may lawfully eject persons from its cars or trains, the passenger who has forfeited his right to travel may be ejected at any point where he will not be subjected to or reasonably liable to peril; but he may not be ejected at any place on the road where he is likely to be injured, such as in a pond of water, on a high trestle or in a dangerous swamp or other place of danger. Where a passenger is carried beyond his station through no fault of his own, he may not be arbitrarily and violently put off where there is no dwelling and remote from any station; and, if he is put off under such circumstances, he may recover substantial damages. The question as to whether the place where the passenger was ejected was a proper place or an improper one in such cases has been usually held to be one of fact for the jury, under the circumstances of each case" —citing numerous authorities in support of the text. See, likewise, 6 Cyc. 563, where it is said: "The servants of the carrier should not expel a passenger (or even a trespasser) at a time or place which is dangerous; and the carrier will be liable in such case, not only for injuries directly suffered in connection with such expulsion, but also for subsequent injuries proximately due thereto, such as injury from other trains, which the ejected person could not reasonably avoid, the probable...