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

• Decision Date: 21 January 1890
• Citation: 13 S.W. 19
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> CAMPBELL.

13 S.W. 19

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

CAMPBELL.

Supreme Court of Texas.

January 21, 1890.

Commissioners' decision. Appeal from district court, Washington county; J. B. McFARLAND, Judge.

J. W. Terry, for appellant.

HOBBY, J.

This is a suit by the appellee, Campbell, who was plaintiff below, for damages for personal injuries received in a collision between two portions of a freight train, in the city of Brenham, upon which he alleged he had taken passage for the purpose of going to Kinney. He testified that he was in Brenham on the night of the 30th March, 1887, and expected to return to his home at or near Kinney. He had ridden on freight trains on several occasions to and from Brenham and Kinney. The freight train pulled into the depot at Brenham on the way to Kinney. He asked a man standing on the platform, with a lantern in his hand, if he had charge of the train, who answered affirmatively, and gave him permission to get on. Plaintiff took a seat in the caboose, and expected, and was prepared, to pay his fare. In a few moments the engine began to back the car. Plaintiff rose from his seat, and started to the door of the caboose, to ascertain the cause of the backing, when the collision occurred, and he was thrown out on the ground, and bruised. He did not recollect exactly how he was hurled out of the car. His coat caught on to the brake at the end of the caboose. There was testimony that some freight trains carried passengers and others did not. Martin, the engineer who was in charge of the train, testified that after the train arrived at Brenham he cut the engine loose from the main train, and attached the caboose to it, and pulled to the tank for water. While there plaintiff insisted on riding to Kinney, and got on the engine. After telling him he could not three times, he got off, and he saw no more of plaintiff until he commenced backing down towards the north end of the switch, when he saw the plaintiff standing on the platform of the caboose nearest the engine. Could see him distinctly, as the head-light shone directly in his face. Witness stopped the engine and caboose, waiting for orders from conductor, and while so waiting a portion of the main train of cars broke loose, and ran down with considerable force, struck the caboose, and drove it up on the pilot of the engine, and threw plaintiff from the platform. When witness saw the situation, he reversed his engine so as to give plaintiff a chance to jump off. The cars would not have broken loose and run back had the brakes been set on them. It was negligence not to have them set. Plaintiff was inside of the caboose. The train was not allowed to carry passengers. There was proof that he had stated to several persons, a few days after the injury, that he "got full while at Brenham. Was left by the passenger train. Tried to come home on a freight. Was put off by the engineer. Then went to the conductor, who refused to let him ride. Afterwards he met a man on the platform with a lantern, who told him to get on the train. He got on the rear end of the caboose, and could have jumped off, but he remained standing, and got hurt." The conductor testified that "plaintiff asked him to let him ride on the train to Kinney. He told him he could not ride on the train, as he had no authority to do so, and would not carry passengers. He gave no one permission to ride on the train. The brakemen had no authority to allow any one to ride. Both doors of the caboose were locked. Two brakemen were inside, both of whom had lanterns. There were 14 cars in the collision. The brakeman on the north end of the cars failed to set the brakes, and this caused the collision." Plaintiff denied telling any one that he was on the platform of the caboose at the time of the accident. It was admitted that the conductor and brakemen were discharged on account of the accident. The jury returned a verdict for $150 actual and $350 punitory damages. No exemplary damages were claimed in the petition, and judgment was rendered for the former, the latter having been remitted. The case is before us on appeal, but there is no appearance for appellee.

The refusal of the court below to give the following charges requested, is assigned as error: "(1) If you believe from the evidence that the freight train in question was prohibited from carrying passengers, and that when plaintiff applied to the conductor for passage on said train he was informed by the conductor that he could not ride on that train, then you will find for the defendant, although you may believe that a brakeman or some other person afterwards told the plaintiff to get on the train. (...