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

• Decision Date: 11 November 1884
• Docket Number: Case No. 1598.
• Court: Texas Supreme Court
• Parties: I. & G. N. R'Y CO. v. W. W. TERRY.

62 Tex. 380

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

v.W. W. TERRY.

Case No. 1598.

Supreme Court of Texas.

Nov. 11, 1884.

APPEAL from Milam. Tried below before the Hon. W. E. Collard.

The appellee brought this suit in the district court of Milam county, alleging that he attained his majority on the 27th day of August, 1881, and that before that time he labored under the disability of minority, to recover of the appellant's railway company damages for the violation of his rights as a passenger on one of its freight trains, and upon which plaintiff had paid his fare from Rockdale to the depot of Milano Junction, by wrongfully carrying him beyond his destination a distance of three miles to a water tank, without his consent, and requiring him to leave the cars in the darkness of the early morning, about daylight, in bad, inclement weather, causing great physical and mental pain and discomfort; and after daylight to return through such inclement weather to Milano Junction without covering or protection, thereby causing plaintiff to contract disease, to his actual compensatory damage in the sum of $10,000.

Defendant answered by exceptions, statute of limitations of one year, contributory negligence and general denial.

The demurrer of defendant being sustained by the court, the plaintiff filed a trial amendment, setting up that, by reason of the wrongful acts of defendant in compelling plaintiff to leave the cars in bad and inclement weather, he contracted pneumonia, was confined to his bed after reaching home about ten days, suffered great pain, and was detained from his business for a long time, put to great expense in physicians' and drug bills in the necessary treatment of the disease, to his damage as alleged in his first amended petition.

The verdict was for the plaintiff for $500 damages.

The defendant made a motion for a new trial, which was overruled.

The court charged the jury on the subject of damages as follows:

“If you further find that plaintiff was required to get off the cars in rainy, cold or inclement weather, and defendant's conductor refused to carry plaintiff on to a regular station without further pay as consideration therefor, and if you further find that such acts on the part of defendant's servants and agents under the circumstances constituted negligence on their part, then you will find for plaintiff such actual damages as the evidence shows will be a fair and reasonable compensation to him for the inconvenience, loss of time, expenses and personal injury occasioned directly and proximately by such negligence, and no more.

If defendants were guilty of negligence to plaintiff's damage, and plaintiff was also guilty of negligence which contributed to the injury or damage, defendant would not be liable for such damage or injury unless it has been shown that the negligence of defendant's servants was the direct and proximate cause of the damage; nor would plaintiff be entitled to recover for injury or special damage on account of defendant's negligence if he could have avoided the consequences of such negligence by the exercise of reasonable care and prudence on his part, that is, such care and prudence as an ordinarily careful and intelligent person would have used under the circumstances. But if defendant negligently carried plaintiff beyond his destination, and the station passed was a regular station where they received and discharged passengers, or if it was a junction of two roads in operation, and if defendant required plaintiff to get off the train at the tank, after he had paid his fare to the station passed, then he would be entitled to recover some damages, even though he has not shown any special damages resulting to him from the negligence of defendant, as the proximate cause. Yet if you find from the evidence that defendants were guilty of negligence, and carried plaintiff beyond his destination, after he had paid his fare, and the conductor required him to get off at the tank, not a usual stopping place to discharge passengers, and if you find that the plaintiff voluntarily exposed himself to inclement weather, which caused him to be sick, when by use of ordinary care he might have avoided the exposure, you cannot find any damages for plaintiff on account of sickness, expense, or loss of time incurred. It was the duty of plaintiff, after he was required to get off the cars (if you find that he was), to use ordinary care to avoid the consequences complained of, and if he might have done so by such care he cannot recover for the expense and sickness and loss of time, but in this case he would be entitled to his actual expense in getting home. If, however, you find that plaintiff was a passenger on defendant's cars, was carried beyond his destination where defendant ought to have stopped to discharge him, and after arriving at the tank he was negligently required to get off in the rain and expose himself to inclement weather, and he proceeded home in the rain, and if you find that he used ordinary care to avoid such exposure, and of this you are to judge from the circumstances, you will find for plaintiff his actual expenses in going home and a reasonable compensation for such exposure; and if you further find that such exposure caused him to be sick as alleged, and the sickness was the proximate cause or the natural and necessary consequence of the exposure, you will also find for plaintiff such other and further amount, as damages, as he may be entitled to by way of pecuniary compensation for his pain and suffering, physical and mental, attending and incident to his sickness, and also such other amount as he necessarily incurred for medical bills and for loss of time.”

Davis & Beall, for appellant, on the measure of damages, cited: Railroad Co. v. Le Gierse, 51 Tex., 189; Thompson on Negligence, vol. 2, pp. 1154-1160; Hobbs v. London R'y Co., 44 L. J. (Q. B.), 49; Indianapolis R'y Co. v. Birney, 71 Ill., 391; Huntsman v. G. W. R'y Co., 20 Upper Canada (Q. B.), 24; Sutherland on Damages, vol. 3, pp. 254-5 and notes; Johnson v. Wells, 6 Nev., 224-232; Williamson v. G. T. R'y Co., 17 Upper Canada, C. P., 615; Hobbs v. The London R'y Co., L. R., 10 Q. B., 111; Turner v. Strange, 56 Tex., 141; R. R. Co. v. Leslie, 57 Tex., 83.

E. L. Antony, for appellee, on measure of damages, cited: White & Willson's Civil Cases, sec. 255; Weed v. R. R., 17 N. Y., 362;Williams v. Vanderbilt, 28 N. Y., 217; M. & C. R. R. v. Whitfield, 44 Miss., 466; M. & O. R. R. v. McArthur, 43 Miss., 180;Thompson v. R. R., 50 Miss., 315;Brown v. R. R., 54 Wis., 342;Heirn v. McCaughan, 32 Miss., 17.

WEST, ASSOCIATE JUSTICE.

Time will not permit of our entering into an extended consideration, discussion and comparison of the many authorities bearing on the interesting question now before us, with a view of determining with entire precision what, under the facts of this particular case, is the true rule by which the jury should be guided in ascertaining the amount of damage (if any)...