I. & G. N. R'Y Co. v. Gilbert

• Decision Date: 23 October 1885
• Docket Number: Case No. 1851.
• Citation: 64 Tex. 536
• Court: Texas Supreme Court
• Parties: I. & G. N. R'Y CO. v. LYDIA R. GILBERT.

64 Tex. 536

I. & G. N. R'Y CO.

v.LYDIA R. GILBERT.

Case No. 1851.

Supreme Court of Texas.

Oct. 23, 1885.

APPEAL from Gregg. Tried below before the Hon. Wm. Steadman, Special Judge.

Suit against appellant for damages for having been, as appellee alleged, improperly put off of a train of defendant's cars a short distance from Longview Junction on the night of the 31st of December, 1881. Appellee alleged that she arrived at Longview Junction about dark on the 31st of December, 1881, from Decatur, Alabama, and had a first-class ticket authorizing her to travel over the railroads owned and operated by the Texas & Pacific Railway Company from Texarkana by way of Longview Junction to Terrell, Texas; that appellee was then an emigrant to, and an entire stranger in, Texas, and was traveling with no other companions than her sister and her sister's two small children; that the Texas & Pacific Railway formed a connection at Longview Junction with the defendant's railroad, and that the train on which appellee came from Texarkana to Longview Junction then and there became part of a passenger train of cars which was run from Longview Junction towards Palestine, Texas, over defendant's railroad; that appellee, upon her arrival at Longview Junction, fearing she might not be on the train which would carry her towards Terrell, as soon as she had an opportunity, inquired of the conductor, who at the Junction was an agent and employee of defendant, if she was on the right train, and was by him requested to keep her seat, which she did, believing she was on the train which ran to her destination; that being a stranger she did not know where she was, and that the conductor took charge of the train on which she had traveled from Texarkana to Longview Junction and caused the train to be moved off in the direction of Palestine, instead of towards Terrell; that it was dark when the train moved out from Longview Junction; that after it had proceeded some four or five miles, the conductor (being the same who had taken charge of the train at the Junction) came through the cars collecting fare, and called on appellee for her ticket, when she showed him the same one on which she had traveled from Alabama to Longview Junction; that he looked at the ticket, and in the presence of the passengers who were traveling on the train, in an insulting manner threw it down on the floor of the car, and for the first time informed plaintiff that she and her sister were not on the right train, and in an angry and insulting manner informed them that he would have to put them off, and that they must get off the train; that the conductor then caused the speed of the train to be slacked, called a brakeman or porter to assist him, and in a rough and angry manner put the appellee and her sister and children off the train while it was moving slowly. Appellee charges that the conductor assaulted her and that her life was endangered in being put off the train, and then sets forth at great length various grounds of damage, such as that the place where she was put off was not a usual stopping place; that it was an abandoned saw-mill site; that few people, and those principally, if not all, negroes, lived there; that the night was dark; that she and her sister and children had to walk back to Longview Junction, a distance of four or five miles, through the swamp of the Sabine river, over the railroad track and over a high railroad bridge; had to hire a negro man to pilot them, and that he became rude and insulting; that she suffered from fatigue and the damp night, and that her feet were swollen from walking; that she suffered much bodily pain and mental anxiety from fright, etc.

The appellant's answer consisted of a general demurrer and seven special exceptions (the four last of the special exceptions being mainly directed to the insufficiency of the grounds of damage alleged by appellee), a general denial, and special allegations setting up that appellee was not a passenger on appellant's cars, was not invited or misled into going there by appellant or the servants or agents of appellant; that she was not put off the cars, but voluntarily got off; that she was offered the opportunity to go on to Troupe and from there to Mineola (by paying passage only from Troupe to Mineola), where she would be again on the Texas & Pacific Railway, and could go to her destination, or to get off the train of defendant where she did, and wait a short time until the passenger train from Palestine to Longview Junction came up, when she could return on that train to the Junction without expense; that she voluntarily elected to get off the train and walk back to Longview Junction. The last paragraph of the answer alleged that if appellee was injured at all, her injuries were not caused by the acts of appellant or its servants, but resulted from the contributory negligence of appellee.

The case was tried February 3, 1885. The exceptions of appellant to appellee's petition were overruled. Verdict and judgment for appellee for $6,500.

Clements, a witness for defendant, was introduced to prove, by the custom of railroads in stamping tickets, the time when the tickets on which plaintiff traveled must have been sold, as indicated by the letters and figures stamped on them. The evidence when they were sold was positive, and this evidence of custom was excluded.

F. B. Sexton, for appellant, on negligence, cited: Pierce on American Railroad Law (ed. of 1867), pp. 274, 276; Field's Law of Damages, secs. 170 and 171, sec. 32, subd. 10; Sedgwick on Damages, pp. 56, 101, 534; 2 Redfield on the Law of Railways (4th ed.) sec. 193; H. & T. C. R. R. Co. v. Nixon, 52 Tex., 25; Penn. R. R. Co v. Vandever, 36 Penn. St., 298; Railroad Co. v. Le Gierse, 51 Tex., 189;Gulf, Colorado & Santa Fe Railway Company v. Greenlee, 62 Tex., 351;Western Union Tel. Co. v. Brown, 62 Tex., 540.

On damages, he cited: Field on Damages, p. 8, secs. 11, 12; Sedgwick on Measure of Damages, pp. 56, 101, 534; 2 Greenl. on Ev. (10th ed.), sec. 256; 1 Sutherland on Damages, pp. 56, 57, 67; 3 Sutherland, pp. 254-5; Indianapolis R. R. Co. v. Birney, 71 Ill., 391.

T. M. Campbell, W. B. Wynne, Jno. W Duncan and D. W. Grow, for appellee, on negligence, cited: H. & T. C. R'y Co. v. Devainy, 63 Tex., 174; T. & P. R'y Co. v. Casey, 52 Tex., 121.

On damages, they cited: R. S., art. 2246; Pollard v. T. & P. R'y Co., Willson's Ct. App. Civil Cases, vol. 2, 424.

WILLIE, CHIEF JUSTICE.

The general and special demurrers to the petition were properly overruled.

It is alleged that the plaintiff, before leaving Longview, inquired of the conductor of the defendant's train if she was in the right train, to which he replied by telling her to keep her seat. This was equivalent to saying that she was on the right train. It is objected that it does not appear that she informed the conductor as to where sh...