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

• Decision Date: 23 March 1904
• Citation: 80 S.W. 426
• Parties: GULF, C. & S. F. RY. CO. v. MOORE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 426

80 S.W. 426

GULF, C. & S. F. RY. CO. v. MOORE.^*

Court of Civil Appeals of Texas.

March 23, 1904.

Appeal from District Court, Johnson County; W. Poindexter, Judge.

Action by W. Z. Moore against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

Ramsey & Odell, for appellant. Ward & Plummer, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover damages for being ejected from one of its trains at Alvarado, Tex., it being contended by appellee that he had a ticket, sold him by appellant, which entitled him to a continuous passage over its road from Berwyn, Ind. T., to Venus, a station on its road beyond Alvarado. There was a judgment rendered on a verdict in favor of appellee for $1,000, from which this appeal was prosecuted.

The evidence shows that Berwyn, a station on a line of appellant's road, is in the Indian Territory, about 50 miles beyond the Texas state line; that one line of its road extends from Cleburne, Tex., to Berwyn, and another from Cleburne, via the town of Venus, in Johnson county, to Dallas, Tex. On and prior to the 7th and 8th of June, 1902, there were three daily trains of appellant scheduled to leave Cleburne and run to and by Venus. They were Nos. 67, 63, and 65, scheduled, respectively, to leave Cleburne at 6:35 a. m., 9:45 a. m., and 7:15 p. m., and to arrive at Venus, respectively, at 7:18 a. m., 10:32 a. m., and 8:04 p. m. Train 67 was not scheduled to stop and put off passengers at Venus. The other two trains were. Train 67 originates under that number at Cleburne, and was what is known as the "Galveston and St. Louis Train," and was the fast mail train, which, without special orders from the office of the general manager of the road, did not, on and prior to June 8, 1902, stop at small stations like Venus, unless it was to put off passengers from foreign lines of railroads. It was the general rule of the company to stop at Venus, as well as at other small stations, to discharge passengers from foreign and connecting lines; but no difference was made between passengers holding tickets issued at Berwyn, Ind. T., and those tickets issued at Gainesville, Tex., destined for Venus. Train No. 67 did not stop there to discharge any of them. All were treated alike. The reason for not stopping this train at Venus and other small stations was that it was operated on a fast schedule for the benefit of through passengers, for carrying the United States mail, and express delivered by connecting lines at Cleburne. On the 4th day of June, 1902, the appellee, who was then living at Berwyn, was bitten by a rattlesnake on his index finger. With the purpose of going to Venus, Tex., for medical treatment, where his parents resided, on the evening of the 7th of that month he purchased a ticket from appellant's agent at Berwyn, entitling him to a continuous passage thence to Venus. At the time he purchased the ticket his hand and arm were much swollen from the snake bite, of which the agent was cognizant when appellee purchased the ticket, and, upon inquiry, told him that he could get a train out of Cleburne the next morning. After purchasing the ticket, appellee boarded the train, and arrived at Cleburne at about 11 o'clock that night, where he remained until about 6:35 next morning, when he got on board of train No. 67 (the fast mail train, above described), which was going in the direction of Venus. When the conductor, in taking up the passengers' tickets, was handed appellee's, he told him that the train did not stop at Venus, and that he would have to get off at Alvarado, the next station, which was about seven miles from appellee's destination. The appellee told the conductor his condition, and importuned him to carry him on his train to Venus, and put him off there, which the conductor declined to do, upon the ground that he had no right, under the rules of the company, to accede to his request. When the train reached Alvarado the conductor, according to appellee's testimony took him by the arm and led him off the train. The conductor denied taking hold of appellee and ejecting him from the train, and his testimony is strongly corroborated by that of a number of witnesses who were present. However, it is undisputed that appellee left the train when it reached Alvarado. And as he does not claim to have suffered any injury at the hands of the conductor, or any humiliation at being compelled to leave it, it may be regarded as immaterial whether he was led off by the conductor or not. Almost immediately after he left the train he was carried by a young gentleman, who noticed him at the depot, in a hack, uptown, to a restaurant, where he got plenty of whisky to drink, and ice water to bathe his swollen arm. He remained in Alvarado until train No. 63, which arrived at 9:45 a. m., which he took, and was safely carried to Venus. He then went to his parents' house, where a physician was sent for, who treated his wounds, and, in about a week afterwards, amputated his index finger, which had been snake-bitten.

These are substantially the facts, and are practically undisputed. If it should be conceded that appellee was wrongfully ejected from the train, we are at a loss to see how a jury could conscientiously find that he had sustained $1,000...