Lyons v. Texas & P. Ry. Co.

• Decision Date: 30 May 1896
• Citation: 36 S.W. 1007
• Parties: LYONS v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

36 S.W. 1007

LYONS v. TEXAS & P. RY. CO.

Court of Civil Appeals of Texas.

May 30, 1896.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by William Lyons against the Texas & Pacific Railway Company. From a refusal to permit a reinstatement after a voluntary nonsuit, plaintiff appeals. Reversed.

W. L. McDonald, for appellant. Alexander, Clark & Hall, for appellee.

LIGHTFOOT, C. J.

This suit was brought by appellant against the railway company to recover damages caused by the wrongful act of a brakeman on defendant's line in wrongfully and forcibly ejecting him from a local freight train in Louisiana while such train was in motion. It was alleged in the petition that the train from which he was ejected was a common carrier of freight and passengers, and that plaintiff was a passenger ready and willing to pay his fare, and offering to do so; that in forcing plaintiff from such train the brakeman was acting under the order and direction of the conductor. Upon the trial of the case, plaintiff offered evidence tending to show, substantially, that on February 19, 1894, he boarded defendant's local freight train at Wear's Spur to go to Alexandria, intending to pay the usual fare, which he was able to do; that such train habitually carried passengers; and that the brakeman on the train, while it was running at a rapid rate of speed, presented a pistol and forced him to jump from the train, whereby he was injured as alleged.

Plaintiff, while on the stand, offered to prove by his own testimony the declarations of the brakeman, which were excluded, and the question is thus presented in the bill of exceptions: "Plaintiff, as a witness on the stand, and while being interrogated by his counsel, undertook to state to the jury a remark alleged to have been made to him by the negro brakeman, when, as he testified, the latter forced him to leave the train, viz. `The boss ordered me to put you off,' which was offered for the purpose of showing that plaintiff was put off by orders of the conductor. Defendant objected to the alleged declarations of the brakeman as not being competent evidence to bind defendant. The court sustained the objection," etc. The rule in regard to admitting declarations of parties at the time of the transaction, as a part of the res gestæ, is broad and liberal. The theory upon which they are admitted is that they are a part of the acts done by the parties, and tend to throw light on the transaction itself. But it would be straining this rule beyond all reasonable proportion to admit the declarations of the brakeman for the purpose of showing that the plaintiff was put off by the order and direction of the conductor. The main fact, that plaintiff was ejected, was clearly shown, and the declarations of the brakeman could not have made that clearer. For the purpose of showing that he acted under the authority of the conductor,—the only purpose for which it was offered,—it was not admissible. The declarations of a party assuming to act for another are not admissible to prove agency. It was not shown that the conductor knew anything of the acts of the brakeman or that he was present or gave any directions in the matter. Railway Co. v. Sherwood, 84 Tex. 135, 19 S. W. 455; Noel v. Denman, 76 Tex. 306, 13 S. W. 318; Blum v. Gaines, 57 Tex. 142; Latham v. Pledger, 11 Tex. 445; Blain v. Express Co., 69 Tex. 78, 6 S. W. 679; Harker v. Dement, 9 Gill, 7; Hatch v. Squires, 11 Mich. 185; French v. Wade, 35 Kan. 391, 11 Pac. 138; Maxey v. Heckethorn, 44 Ill. 438; Machine Co. v. Crow, 70 Iowa, 340, 30 N. W. 609; Mechem, Ag. § 100, note, and authorities cited; 2 Greenl. Ev. § 63, note b, and authorities there cited. While the above proposition is regarded as well settled, still, if appellant was a passenger on the train, and was rightfully there as such, the company owed him the duty of protection, and the question of the brakeman's authority would not be important in the case. Appellant alleged in his pleading that the relation of passenger and carrier existed, and introduced evidence tending to prove it.

Under the second assignment of error, appellant complains that "the court erred in ruling that the allegations in the amended petition were insufficient, under the Louisiana Code, pleaded herein, when not specially excepted to, to admit proof of a general practice among brakemen on railroads, including defendant's railroad, in both Louisiana, where the injury occurred, and Texas, to order trespassers off the trains. * * *" This assignment seems to be made on the theory that appellant was a trespasser. It is always more or less embarrassing for the courts of our state to...