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

Decision Date09 June 1906
Citation96 S.W. 102
PartiesGULF, C. & S. F. RY. CO. v. COOPWOOD.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by Mrs. M. J. Coopwood against the Gulf, Colorado and Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwill, for appellant. S. C. Padelford, for appellee.

TALBOT, J.

This is a suit instituted by appellee against appellant to recover damages for physical pain and mental anguish suffered by her on account of the alleged negligence and wrongful treatment of herself and her daughter, Minnie Coopwood, while appellant's passengers going from Brownwood, Tex., to San Angelo, Tex. Appellant answered by general demurrer and general denial. A jury trial resulted in a verdict and judgment for appellee in the sum of $1,250, from which appellant has appealed.

The testimony is conflicting, but sufficient to warrant the following conclusions of fact: The appellee, Mrs. M. J. Coopwood, was a widow, and her family on January 1, 1903, consisted of herself, her unmarried daughter, Minnie Coopwood, her widowed daughter, Mrs. Ellis Overton, and little granddaughter, Gladys. Miss Minnie Coopwood was afflicted with consumption, and the family had been residing in Wichita Falls for the benefit of her health. Her condition became so serious in December, 1902, it was decided to take her to San Angelo, Tex., with the hope that her health would be restored or benefited by the climate there. With this object in view appellee, with her two daughters, Miss Minnie Coopwood and Mrs. Overton, and her little granddaughter, Gladys, started from Wichita Falls to San Angelo on the evening of December 31, 1902, and reached appellant's depot at Brownwood about sundown January 1, 1903. Miss Minnie had a chill en route at Ft. Worth, and when she arrived at appellant's depot at Brownwood was very sick, unable to walk, and practically helpless. She was placed in a chair in appellant's depot house at Brownwood where she, appellee, and Mrs. Overton and little daughter remained until the arrival of appellant's passenger train going to San Angelo, which was probably between 9 and 10 o'clock that night. In the meantime appellee purchased tickets for herself and daughters over appellant's road for San Angelo, paying the amount charged therefor. When the train reached Brownwood the porter and brakeman went into the waiting room of the depot, and appellee told them that her daughter could not walk and asked them if they would carry her on the train, to which they replied they would. About this time Mrs. Overton stated, in the presence of the porter and brakeman, that she would go and secure a seat in the train for her sister. The porter and brakeman picked up the chair Miss Minnie Coopwood was in and carried her out towards the engine and baggage car with the intention of putting her in the baggage car. Miss Minnie Coopwood asked them not to put her in the baggage car, and cried out to her mother to stop the porter and brakeman and not let them put her in the baggage car. Appellee called to them and asked them not to put her daughter in the baggage car, but they proceeded towards the baggage car, and said that was the place for her if she was sick. Miss Minnie Coopwood begged not to be put on the baggage car, and about this time some man, a stranger, walked up and told the porter and brakeman to stop and not put her in the baggage car, to which one of them replied: "Boss, there ain't enough room in the other car for her"—and the stranger remarked: "Make the passengers make room for her." Miss Minnie was then put into a day coach, where she remained in the care of her mother until San Angelo was reached. Shortly before the train got to San Angelo appellee told the conductor that she wanted him to help them off just as soon as the depot was reached, and the conductor said he would when he got through helping the other passengers off the train. As the train was running into San Angelo, Miss Coopwood said to the conductor: "Please help me off now. I am very sick and suffering." And appellee also called to him before he got to the car door and asked him to help them off. To which the conductor made no reply, or, if so, it was not heard by appellee. When the train stopped at San Angelo, and while the conductor was assisting other passengers off, appellee asked him to help her daughter off the train, that she was suffering excruciating pain in her lungs, and that she wanted to get her to a house where she could have her taken care of and give her medical aid. The conductor said that, when he got through helping the passengers off, he would help her off; but, according to appellee's statement, she did not see him any more, and after all the passengers were off the train, except herself and daughters, the brakeman came in the coach and said the conductor had gone home and the train would have to be switched down into the yards. After this a negro porter came in the car and she asked him to tell the conductor to help them off the train, and he made no reply, but shut the door and left. John Abney, a coach cleaner in the employ of appellant, with whom appellee was acquainted, next came into the car, and he said they would have to switch the coach off of that track. The coaches were then switched down into the yards probably 100 yards distant from the depot, and John Abney ordered a carriage, and appellee and her daughters were put in it, and they left seeking a hotel. The principal hotel of San Angelo had been previously burned, a fact known to appellant's conductor at this time. The passengers who disembarked from the train before appellee and daughters, who were able to do so, had secured lodging in the hotels, and appellee and her daughters were compelled to drive to three different places before accommodations could be secured. Appellee and her daughters remained in the car after the train reached San Angelo, before they secured a carriage and left it, probably a half hour or longer. She and her daughter, Mrs. Overton, were physically unable to carry Miss Coopwood on and off the train, and this fact, as well also as the helpless condition of Miss Coopwood, was well known to appellant's conductor and other employés in charge of the train upon which they were traveling. The relationship existing between appellee and Miss Coopwood was also known to said employés. Appellee sustained damages by reason of the physical and mental pain suffered by her as a result of the acts charged against appellant's servants in the amount awarded by the jury.

Complaint is made of that portion of paragraph 8 of the court's charge in which the jury were instructed: "That it was the duty of the defendant's servants in charge of said train to exercise such a degree of care as would reasonably insure the safety of such passengers in view of their physical condition, and a failure on the part of the defendant through its said servants to discharge said duty was negligence." The objections urged to this charge are: That it is in effect an instruction that the defendant was held to be an insurer of the safety of its passengers and imposed upon the defendant a higher degree of care than that required by law; that under the peculiar circumstances of this case, and the theory upon which a recovery is sought, the failure of the railway company to use even a very high degree of care towards the plaintiff's daughter, Miss Coopwood, would not be negligence towards the plaintiff. We are inclined to the opinion that neither of these objections are well taken. The clause of the charge complained of correctly defines the duty of railway companies, under decisions of this and other states, towards sick and helpless passengers, and it is not believed that the form of expression misled the jury into the belief that, in accepting appellee and her daughters as passengers, appellant thereby became an insurer of their safety in the sense as contended by its counsel. In the case of Railway Co. v. Miss Willie Gilmer, 18 Tex. Civ. App. 680, 45 S. W. 1028, appellee, on account of physical disabilities, was unable to walk, and, while being removed from the train by the conductor, was, through his negligence, injured. The Court of Civil Appeals at San Antonio quotes with approval from Croom v. Railway (Minn.) 53 N. W. 1128, 18 L. R. A. 602, 38 Am. St. Rep. 557, this language: "But if the company voluntarily accepts a person as a passenger unattended by a servant capable of taking care of and rendering him necessary assistance, whose inability to care for himself is apparent or made known to its servants when he is accepted as a passenger, and renders special care and assistance necessary, the company is negligent if such assistance is not afforded. In such case it must exercise a degree of care commensurate with the responsibility which is thus voluntarily assumed, and such care must be such as will reasonably insure the safety of the passenger in view of his physical condition. This is the duty required by law as well as the dictates of humanity." Weightman v. Railway (Miss.) 12 South. 586, 19 L. R. A. 671, 35 Am. St. Rep. 660; Railway Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387. Appellant, in this case, accepted appellee and her daughters as passengers knowing the relationship existing between them and the helpless condition of the daughter. It knew through its servants in charge of the train that the mother was incapable of carrying her daughter on and off the train, and of the natural affection she bore her. Under the circumstances, appellant assumed the duty of exercising such care as would reasonably insure or secure ap...

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