International & G. N. Ry. Co. v. Davis

• Decision Date: 24 November 1897
• Parties: INTERNATIONAL & G. N. RY. CO. v. DAVIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W. 540

INTERNATIONAL & G. N. RY. CO. v. DAVIS.¹

Court of Civil Appeals of Texas.

November 24, 1897.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Orin Davis against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Floyd McGown and F. C. Davis, for appellant. J. A. Buckler, for appellee.

NEILL, J.

This action was brought by the appellee to recover from appellant damages sustained by him by reason of appellant's negligent failure to have a car properly heated, upon which the appellee was traveling in the employment of the United States government as its postal clerk. As his cause of action, the appellee, among other things, alleged that on September 28, 1896, he was a duly-commissioned and regularly acting United States postal clerk or route agent, employed by the United States government, and by it assigned to the duty of accompanying mails carried upon the cars of defendant from the city of San Antonio to Longview, in the state of Texas; that under the law and its contract with the government, it was the duty of said defendant to carry said mails upon its cars, and also to carry some one in charge of said mails, free from any compensation other than it received from the United States government; that it was its further duty to provide sufficient cars, with suitable rooms therein, with proper fixtures and furniture, and properly heated and lighted, for the use of route agents or postal clerks, and to enable them comfortably to occupy said cars, and distribute the mails, without any specific charge therefor. The appellant answered (1) by general demurrer; (2) by specially excepting upon the ground that the allegations in the petition did not show that in September ordinary care required defendant to provide a heated car; (3) by general denial; (4) that appellee was a trespasser upon the car of defendant, and it owed no duty to him; and (5) contributory negligence, in that the appellee failed to provide himself with an overcoat or wrap to protect him from the cold, after he discovered that the car was not heated. The appellant (defendant below) demurred to plaintiff's evidence, and, the demurrer being overruled, the issue as to the amount of damages was alone submitted to the jury, who returned a verdict in favor of the appellee for $870, upon which the judgment was entered from which this appeal is prosecuted.

Conclusions of Fact.

The uncontradicted evidence shows: (1) That on the 28th day of September, 1896, the appellee was, and had been for two years prior thereto, in the service of the United States government as a postal clerk, employed in the discharge of his duties upon the trains of appellant, in carrying the mail from the city of San Antonio to Longview, Tex. (2) That upon said day, and for two years prior thereto, the appellee was recognized and received by appellant upon its mail coach running between the cities aforesaid, as a United States postal clerk, and was entitled to be carried as such in discharge of his duty on said train. (3) On the 28th day of September, 1896, the appellee was assigned by the United States government to the duty of accompanying the mails carried upon appellant's cars from the city of San Antonio to Longview, and to take care of said mail, and see that it was properly distributed at the various post offices on the line of said road between said points, and to perform generally all the duties required by law of United States postal clerks or route agents. (4) The 28th day of September, 1896, was a cold and damp day, and the car of appellant in which the appellee was riding in the discharge of his duties as postal clerk was not heated in any manner. The appellee notified the appellant that the car was unheated, and through its conductor in charge of the train, informed it that it was uncomfortable and disagreeable for him to ride in the car on account of its being so cold, and requested appellant to provide it...