Houston & T. C. R. Co. v. George

• Decision Date: 16 January 1901
• Citation: 60 S.W. 313
• Parties: HOUSTON & T. C. R. CO. v. GEORGE.
• Court: Texas Court of Appeals

60 S.W. 313

HOUSTON & T. C. R. CO. v. GEORGE.

Court of Civil Appeals of Texas.

January 16, 1901.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by Henry George against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett and Frank Andrews, for appellant. Henry Faulk and Fred Shelley, for appellee.

KEY, J.

Appellee sued appellant to recover damages for injuries alleged to have been sustained by his wife while a passenger on appellant's railroad. Verdict and judgment were rendered for appellee for $400, and the railroad company has appealed.

There being evidence in the record authorizing it, we find, in support of the verdict, the following facts: (1) Appellant was guilty of negligence in the manner charged in appellee's petition; (2) appellee's wife was not guilty of contributory negligence; and, (3) as a result of appellant's negligence, appellee's wife was injured to the extent of $400.

The court instructed the jury that it is the duty of a railroad company, in the management and operation of its trains, to exercise the highest degree of care for the safety of its passengers. This is complained of as being too onerous, and requiring appellant to exercise more care than is imposed by law. A charge requiring a carrier of passengers to use the "utmost care" to provide for the safety of passengers was approved by our supreme court in Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407. In the Welch Case, 86 Tex. 203, 24 S. W. 390, the same court condemned a charge requiring a carrier of passengers to use "all possible care"; but, while the opinion refers to Gallagher v. Bowie, that case is not overruled, the court holding that "all possible care" has a broader and more unlimited meaning than "utmost care," which is defined to mean "all the care and diligence possible in the nature of the case." The expression "highest degree of care" is synonymous with, and no broader, than "the utmost care"; and we believe a jury would understand the two phrases as meaning the same thing. We are aware of the fact that the court of civil appeals at Galveston, in McCarty v. Railway Co., 21 Tex. Civ. App. 575, 54 S. W. 421, has practically overruled Gallagher v. Bowie, supra; but the supreme court has not done so, and, giving to the words "utmost care" the meaning quoted and approved in the Welch Case, we do not think Gallagher v. Bowie ought to be...