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

• Decision Date: 17 April 1895
• Citation: 30 S.W. 574
• Parties: GULF, C. & S. F. RY. CO. v. MOODY.
• Court: Texas Court of Appeals

30 S.W. 574

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

Court of Civil Appeals of Texas.

April 17, 1895.

Appeal from district court, Tom Green county; J. W. Timmins, Judge.

Action by Frank Moody against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry and Jos. Spence, Jr., for appellant. D. D. Wallace and Cochran & Hill, for appellee.

KEY, J.

This is a suit for damages for an alleged unlawful ejection from a railway train. We sustain the fourth assignment of error, and reverse the judgment, because the court excluded the depositions of the witnesses E. Garlick, Con Sullivan, and J. E. Jack, tending to show that a regulation had been adopted by appellant, and was in force at the time in question, restricting passengers to the use of one seat if the cars were not crowded, and to half a seat if they were crowded, and not allowing the backs of seats to be turned so as to make two seats face each other, and not allowing passengers to place baggage on the seats in front of them. It is true that the conductor and brakeman operating the train in question had testified substantially that such were the regulations, but they were not so clearly proved as to justify the court in excluding the other testimony tending to show their existence. Besides, the bill of exception does not show that the evidence was objected to because unnecessary, as the regulations were already proved and not controverted, and appellee thereafter introduced testimony tending to disprove the existence of such regulations. The objection that appellee was not shown to have had notice of the existence of the regulations affords no reason for excluding the testimony. The rights of railway and telegraph companies in this respect are similar, and it was held by our supreme court in Telegraph Co. v. Neel, 86 Tex. 368, 25 S. W. 15, that telegraph companies could make reasonable regulations for the conduct of their business, and that, in the absence of an express contract to the contrary, such regulations are binding upon those who patronize and contract with telegraph companies, although the existence of the regulations may not be known to the person contracting with the telegraph company.

In view of another trial, some observations on other questions are deemed pertinent. If appellee eliminates from both his pleading and evidence the issue of malicious prosecution, and confines his case to the alleged tortious violation of his...