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

• Decision Date: 24 April 1895
• Citation: 30 S.W. 719
• Parties: HOUSTON & T. C. R. CO. v. WASHINGTON.
• Court: Texas Court of Appeals

30 S.W. 719

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

Court of Civil Appeals of Texas.

April 24, 1895.

Error from district court, Travis county; James H. Robertson, Judge.

Action by Henry Washington by next friend, against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant brings error. Affirmed.

O. T. Holt, for plaintiff in error. Walton & Hill and L. A. Hill, for defendant in error.

KEY, J.

Henry Washington sued the Houston & Texas Central Railroad Company to recover damages for personal injuries, and on trial recovered a judgment for $750. The company submits the case on one assignment of error, which reads as follows: "The court erred in finding for the defendant in error and against the plaintiff in error, because the party who assaulted or illtreated Henry Washington was guilty of a tort or wrong for which the plaintiff in error was not liable, unless it was shown that the party so assaulting said Henry Washington was in the employ of the plaintiff in error, and was in the discharge of his duty when the assault was committed upon the said Henry Washington, and that he had authority to remove persons from the train when not entitled to ride thereon." The contention is that, although Washington was assaulted while on the company's train by one of its employés, it was not shown that the assault was committed under such circumstances as to render the company liable. According to the undisputed evidence of the plaintiff, he resided at his brother's house near the freight depot in East Austin, and, on the occasion in question, he desired to go to Manor, a station on appellant's road 12 miles east of Austin. A freight and passenger train on appellant's road left the passenger depot in Austin about 8 o'clock p. m., and the plaintiff went to the freight depot, and, the train having stopped there, he boarded it, and, as he was smoking, he remained on the platform of the passenger coach. He had sufficient money to pay his fare to Manor, and would have done so on demand of the conductor. Shortly after the train left the freight depot a brakeman on the train asked the plaintiff where he was going, and if he had a ticket. The plaintiff informed him where he was going, and told him that he had no ticket, but had the money to pay his fare. The brakeman told the plaintiff he could not ride without a ticket, violently assaulted him with a club, knocked him down, and caused him to fall off the train, thereby breaking one of...