Hardin v. Ft. Worth & D. C. Ry. Co.

• Decision Date: 07 November 1903
• Citation: 77 S.W. 431
• Parties: HARDIN v. FT. WORTH & D. C. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 431

HARDIN v. FT. WORTH & D. C. RY. CO.^*

Court of Civil Appeals of Texas.

November 7, 1903.

Appeal from District Court, Clay County; A. H. Carrigan, Judge.

Action by A. D. Hardin against the Ft. Worth & Denver City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

L. C. Barrett, Geo. A. Watts, and W. T. Allen, for appellant. Stanley, Spoonts & Thompson, for appellee.

SPEER, J.

On July 11, 1902, one Toney shipped his household goods, hogs, chickens, etc., over the appellee's line of road from Avondale, Tex., to Henrietta, Tex. Under the contract of shipment with the company, the appellant rode in the car to look after and care for the property. The car reached Henrietta late in the afternoon of the day— too late to be unloaded—and was cut out of the train and left on a side track until the return of the train from Wichita Falls on the next morning, when it was coupled onto and spotted at the platform where it could be unloaded. Appellant left the car that night, and slept on the depot platform until about daylight, when it began to rain, and he and his son then went into the car. Some time about 8 a. m. or 9 a. m., while the appellant was yet in the car, "fixing to feed the hogs and chickens," the train crew made the coupling which is alleged to have resulted in the injuries sued for.

The trial judge evidently considered that the relation of carrier and passenger had ceased to exist between appellee and appellant at the time of the injuries, for he defined negligence as the failure to do that which an ordinarily prudent person would do under all the circumstances of the case, or doing that which an ordinarily prudent person would not have done under all the circumstances of the case, and refused the special charge correctly embodying a statement of the law applicable to that relation. His action in this particular is presented as error by appropriate assignments, which we think must be sustained. Arrington v. T. & P. Ry. Co., 70 S. W. 551, 6 Tex. Ct. Rep. 69; Knauff v. San Antonio Traction Co., 70 S. W. 1011, 6 Tex. Ct. Rep. 240; C. T. & N. W. Ry. Co. v. Smith, 73 S. W. 537, 7 Tex. Ct. Rep. 349. It has been repeatedly held in this state that common carriers must exercise the "utmost care" for the safety of their passengers. Gallagher v. Bowie, 66 Tex. 266, 17 S. W. 407; Railway v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; Railway v. Kennedy, 12 Tex. Civ. App. 654, 35 S. W. 335. And although the expression is sometimes varied, and a different phraseology employed, this is the measure of care in most, if not all, the other states of the Union. Hutchinson on Carriers, § 501; 9 Cent. Dig. col. 1014. It can make no difference that the vehicle is a freight car rather than the usual passenger coach; the degree of care is the same. Mexican C. Ry. Co. v. Lauricella (Tex. Civ. App.) 26 S. W. 301; Id., 87 Tex. 277, 28 S. W. 277, 47 Am. St. Rep. 103; Hutchinson on Carriers, § 538a. Naturally there are risks assumed by the passenger when he accepts passage on a freight train that would not be incident to travel upon a passenger train, but this does not lessen the degree of care to be exercised by the carrier in the operation of such freight train. It follows from what we have said that we are of opinion the evidence was not such as to authorize the trial court to assume in his charge that the appellant had ceased to be a passenger, and that he should at least have submitted that question to the jury, as requested.

In Ormond v. Hayes, 60 Tex. 180, it is said "The evidence shows that the deceased was received as a passenger on defendant's train, and that his wife, infant child, and nurse, who were under his charge, were also so received as passengers. The proof also discloses the fact that the defendant's servants, without objection, received from him, at the same time, as baggage to be by them transported, a considerable number of bulky articles of furniture, bedding, and clothing, which they agreed and bound themselves to deliver to him at his point of destination. It does not appear that for this considerable amount of baggage, consisting of a number of articles, the defendant gave him any check, receipt, or any kind of evidence or token of their possession of it. Under all the circumstances disclosed in evidence, when we consider the nature and quantity of the baggage and the absence of any baggage checks or receipt to the deceased, we think he, as such passenger, had a right to go to the baggage car for the purpose of identifying and claiming his property, and receiving it from the employés of defendants, and, if he did...