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

• Decision Date: 20 June 1917
• Docket Number: (No. 1193.)
• Citation: 197 S.W. 482
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. GENTRY.

197 S.W. 482

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

(No. 1193.)

Court of Civil Appeals of Texas. Amarillo.

June 20, 1917.

Rehearing Denied October 3, 1917.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by Mrs. Jessie Gentry against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, E. M. Browder, of Dallas, and Lee, Lomax & Smith, of Ft. Worth, for appellant. Adams & Stennis, of Dallas, for appellee.

BOYCE, J.

This suit was brought by Mrs. Gentry against the appellant railway company to recover damages alleged to have resulted from the negligence of the railway company in putting her off its train at the wrong station, and this appeal is from a judgment rendered on a general verdict of the jury for the plaintiff.

Giving the verdict its proper effect on the conflicts in the evidence we find: That Mrs. Gentry, riding on a ticket over appellant's road entitling her to go to Justin, was, on account of the negligence of the employés of the railway company in informing her that she had reached Justin, caused to get off at Haslet, a small station nine miles from Justin, at about 9 o'clock p. m., January 19, 1915. Appellee was employed by a theatrical company, and had been directed by the manager to be at Justin at 9 o'clock the next morning for rehearsal, though no performance was to be given until that evening, and appellee testified that she feared that she would be discharged if she did not report as directed. Upon learning that she was not at Justin, and that there would be no train to Justin until 11 o'clock the next morning, that the roads were impassable for any kind of vehicle, and that the only available means of conveyance that would enable her to reach Justin in time to keep her engagement was by horseback, appellee secured horses and accompanied by a man who brought the horses back to Haslet rode through the country to Justin. The roads were very rough so that they were about five hours on the way; the night was cold, became cold, and appellee was chilled from the cold and made sick by the ride. She was about three months advanced in pregnancy, and a few hours after reaching Justin suffered a miscarriage, and the damages sought to be recovered are on this account. Appellee knew that it was not advisable for her to subject herself to any unusual strain or exertion; she learned that she could probably secure a place to stay at Haslet for the night; she was unacquainted at either place, and the trip was taken because, as she expressed it, "she had to be at Justin by 9 o'clock" on account of her engagement.

Appellant by the first and second assignments asserts that the court erred in not peremptorily instructing a verdict for it because the facts recited conclusively show that Mrs. Gentry was guilty of contributory negligence, and because the ills suffered by her were not the proximate result of the negligence of the appellant. These assignments present question of considerable difficulty, and a holding either way on them can be supported by respectable authority. If the act of appellee in riding across the country on horseback is to be judged with reference to a care for her physical comfort and well-being alone, there could be but one answer to the question as to whether it was prudent, but if we are to take into consideration necessities other than the physical comfort and health that might justify one in taking the risk of exposure, a different question is presented. Circumstances can be conceived where the conclusion would be clear that a person of ordinary prudence would take the risk of such a trip; on the other hand, if the purpose of the traveler was only to make a social visit, it would be equally clear that such a trip would not be undertaken by a person of ordinary prudence in Mrs. Gentry's physical condition. We are of the opinion that the facts of this case place it in that middle ground where reasonable minds might differ as to the conclusion, and the question of negligence under such circumstances thus becomes one for the jury.

The injury to appellee was not of course the immediate result of the wrong of the railway company in putting her off at Haslet instead of Justin, but of the trip taken by her of her own volition which she was impelled to take, not in an effort to reach a safe and secure shelter, but by the business necessity which she considered herself to be under. If a carrier negligently puts a passenger off at a place where there is no shelter available, the exposure incident to an attempt to reach a safe lodging place would be clearly the direct and proximate result of the wrong, and could have been reasonably anticipated by the carrier. But when the person is discharged at a place where there is safe and comfortable shelter to be had and where a person of ordinary prudence would remain but for some urgency of his particular situation, the injury resulting from exposure attendant upon an effort to reach the destination by other means becomes so remote that a conclusion as to liability under such circumstances is more difficult. In the earlier cases the cause of action was treated as being based on a breach of the contract of carriage, and recovery was denied on the ground that the carrier had no notice of the special damages likely to result from a breach thereof. Later cases, however, have allowed recovery to be had in tort, and the rule in the earlier cases has been considerably relaxed. The theory of recovery in such cases must evidently be based on the assumption that the carrier is bound to know that it is carrying passengers in all conditions and who are traveling on various missions of more or less urgency, and that it is natural for a traveler put off at the wrong place to attempt to reach his destination even at some risk from exposure. The Supreme Court, in the case of St. L. & S. W. Ry. v. Ricketts, 96 Tex. 68, 70 S. W. 315, states the rule applicable to such cases as follows:

"Since Ricketts and wife were destined for Clinton, appellant, if it wrongfully carried them beyond that point, ought to have foreseen that they would do that which it was prudent for them to do under the circumstances, and to have contemplated any exposure to which they would have been subjected in a natural and prudent effort to return. * * * It was their right to go back, and the question is whether or not, in choosing the means of transportation, and in their other conduct they acted as persons of ordinary prudence; and this was a question for the jury."

The present case is an extreme one, going further than any we have been referred to, but we have concluded that the application of the rule announced above requires us to hold that in this case the question as to whether the negligence alleged was the proximate cause of the injury, and as to whether Mrs. Gentry was guilty of contributory negligence, was for the jury to decide. The following authorities tend directly to support this conclusion: St. L. &. S. W. Ry. Co. v. Ricketts, 96 Tex. 68, 70 S. W. 315; St. L. & S. W. Ry. Co. v. Foster, 46 Tex. Civ. App. 517, 103 S. W. 194; St. L. & S. W. Ry. Co. v. Franks, 52 Tex. Civ. App. 614, 114 S. W. 875; writ of error denied, G., C. & S. F. Ry. Co. v. Cleveland, 33 S. W. 687; recovery was denied but reference was made to the fact that plaintiff was under no pressing necessity to reach his destination. Cook v. Beaumont S. I., & S. W. Ry. Co., 160 S. W. 123; recovery was also denied in this case, but again reference was made to the fact that there was no pressing necessity for the presence of the passenger at the place of his destination prior to the time he could have reached there by another train; Pittsburgh, C., C. & St. L. Ry. v. Klitch, 11 Ind. App. 290, 37 N. E. 560; C., H. & I. Ry. Co. v. Eaton, 94 Ind. 475, 48 Am. Rep. 179. A general discussion of the questions involved and citations of numerous authorities may be found by reference to the following citations: Sutherland on Damages (4th Ed.) §§ 49, 938-940; Sedgwick on Damages (9th Ed.) §§ 150, 867-872; notes to 7 L. R. A. (N. S.) 1180; 17 L. R. A. (N. S.) 1226; 41 L. R. A. (N. S.) 745; R. C. L. vol. 5, p. 102, § 738. An examination of these last authorities show that there is considerable conflict and confusion on this subject. The following authorities in this state tend to support appellant's position to some extent at least: I. & G. N. Ry. Co. v. Addison, 100 Tex. 240, 97 S. W. 1037, 8 L. R. A. (N. S.) 880; T. & P. Ry. Co. v. Cole, ...