Mills v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 17 December 1900
• Citation: 59 S.W. 874
• Court: Texas Supreme Court
• Parties: MILLS v. MISSOURI, K. & T. RY. CO. OF TEXAS.

59 S.W. 874

MILLS v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Supreme Court of Texas.

December 17, 1900.

Error to court of civil appeals of the Third supreme judicial district.

Action by Seth P. Mills against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment of the court of civil appeals (57 S. W. 291) affirming a judgment in favor of defendant, plaintiff brings error. Reversed.

A. C. Prendergast and Jones & Sleeper, for plaintiff in error. T. S. Miller and Clark & Bolinger, for defendant in error.

WILLIAMS, J.

This writ of error was granted from a judgment of the court of civil appeals affirming a judgment of the district court in favor of defendant in error in a suit brought against it by plaintiff in error to recover damages for personal injuries. The injuries were received in the town of Granger while plaintiff in error was attempting to get upon a moving passenger train of defendant in error for the purpose of taking passage thereon, and the district judge, before whom the case was tried by jury, after the conclusion of the evidence directed a verdict for defendant; the reason for such action not being stated of record. At the time when plaintiff so attempted to enter the cars there was in force in Granger the following ordinance: "Be it ordained by the town council of the town of Granger, Texas, any person or persons who shall be found jumping or swinging on or off of any moving train who is not in the employ of the railroad company within the corporate limits of the town, shall be deemed guilty of a misdemeanor and upon conviction in the mayor's court, shall be fined not less than one nor more than ten dollars." The court of civil appeals held that this ordinance applied to plaintiff's act in attempting to jump on the train while it was in motion, although he did so intending in good faith to become a passenger thereon; that, as thus applied, the ordinance was valid, and that plaintiff's violation of it constituted negligence per se, which precluded him from recovering; and that hence the trial court was justified in directing the verdict against him. To this view we have been unable to agree. We shall not enter into a discussion of the broad question suggested by counsel for plaintiff in error,—whether an ordinance prohibiting the doing of a given act may have the effect of determining the civil rights and liabilities of a person for an act done in violation of it. Some authorities hold that the extent of the power of the municipal corporation, where the ordinance is valid, is to enforce the penalty, and that the civil rights and liabilities of the party are to be determined by the general laws of the state, which the municipal body has no power to change. But a consideration of this question is wholly unnecessary, for the reason that, if the ordinance in question is to be held to apply to such acts as that of plaintiff in error, it would, in our opinion, be unreasonable and void. By article 593, Rev. St., the power of corporations such as Granger to pass ordinances is thus defined: "To enact such by-laws and ordinances not inconsistent with the laws and constitution of the state as shall be deemed proper for the government of the corporation." And by article 602 it is made the duty of the mayor to enforce such by-laws and ordinances "not inconsistent with the laws of the land as the board of aldermen may enact for the better regulation of the police of the corporation." It may be true that there is no provision of the statute or constitution directly prohibiting the passage of such an ordinance as that in question, but it is a part of the common law of the state that ordinances not expressly authorized must be reasonable and not against common right. Milliken v. City Council, 54 Tex. 388, and authorities there cited; Napman v. People, 19 Mich. 352. The ordinance, if taken as prohibiting persons from getting on trains, when they otherwise would have had the right to do so, cannot in any just sense be deemed one "for the government of the corporation," or "for the better regulation of the police of the corporation." On the contrary, it would simply be a regulation of the rights of the passenger and the carrier, in which the corporation had no concern. Not only would it be an attempt to regulate the exercise of the right of the passenger to take passage, and of the carrier to receive him, but a practical denial of it, assuming that the circumstances existed to give the passenger the right to get upon the train while moving. If the circumstances did not give the right under the law, then the ordinance adds nothing. We are to be understood as holding only that the interpretation sought to be put upon the ordinance would render it void, without determining whether or not that interpretation is correct. Its language most naturally applies to acts of a different character from that of plaintiff now in question, and it may be that its operation should be restricted to mischiefs over which the corporation had power; and the question whether or not, when properly interpreted, it is valid, is not before us.

But it is contended that the evidence, without the ordinance, was such as to authorize the trial judge to direct a verdict for defendant. The evidence is voluminous, but it is only necessary to state such facts as the testimony most favorable to plaintiff tended to establish, and consider them in connection with the facts the existence of which is undisputed. The defendant had adopted a regulation that passengers who had not purchased tickets should not be admitted to its trains, and had equipped its cars with vestibules having doors, or with gates, closing the entrances to the platforms, and had instructed its servants to open certain ones of the doors or vestibules at stations for the egress and ingress of passengers, and to keep the others closed, and to admit no one who had no ticket, allowing to passengers unprovided with tickets reasonable time to get them, without unreasonably delaying trains. These rules also required that the gates or doors to the vestibules be kept securely fastened while the trains were running, and that servants exercise the greatest care to see that passengers did not get on or off trains in motion. Plaintiff knew of the regulation requiring of passengers the purchase of tickets, and had observed the practice of the gatemen on the trains in opening and closing the gates. At Granger two passenger trains were accustomed to meet and pass each other. The station there stood between the main track west and a side track east of it. On the west side was a low platform along the main track, provided for and suitable to the use of passengers in getting on and off the trains. On the east side was a high platform, generally used for loading and unloading freight on and from trains, and not well adapted to the use of passengers. The south-bound train usually arrived at Granger before the north-bound train, and entered upon the siding east of the station, and there awaited the arrival of the north-bound train, which followed the main track. Sometimes the south-bound train would wait until the other had proceeded north, leaving the main track open, and would then back upon that track and pull down it to the west side of the station, and stop there for passengers to get on; and at other times it would proceed southward over the side track, and onto the main track, south of the station, in which event passengers were expected to get on while the train stood upon the side track. The practice in this particular was so uncertain that it could not be known in advance which course would be taken on any occasion, the agent sometimes having to move to the east platform matter which he had placed on the west platform to be loaded upon the train. Plaintiff, who did not reside at Granger, had frequently traveled on the road; and on every occasion the south-bound train, after the departure of the other, had gone upon the main track and stopped for passengers at the passenger platform, and he had no reason to believe that this was not the uniform practice. On the occasion in question, being at Granger on a visit, and desiring to take the south-bound train, he went to the station, and into the waiting room, to get a ticket, some 10 minutes before train time. He looked at the ticket window, and made some inquiry for the ticket agent, and, not seeing him, went out upon the west platform, where he stood conversing until and for some time after his train arrived and stopped upon the side track, supposing that his train would be brought around to the platform as before. But when he saw the other train coming he made inquiry, and, getting some information, he proceeded to the ticket office again to get a ticket; but the agent was then out to attend to his business in connection with the north-bound train, which reached the station about the time plaintiff reached the office. A bystander pointed out the agent, who was then on the passenger platform, north of the station, and plaintiff, after having waited two or three minutes, went towards him for the purpose of asking for a ticket; but as he passed the north end of the station he saw that the south-bound train was in motion, and realizing that he had not time to get a ticket and board it, and seeing the platform at the north end of the station obstructed by machinery, so that he could not cross it, he moved in a fast walk south along the west platform and around the south end of the station to the east platform, and in attempting to get upon the train was thrown or fell to the ground, and was injured. The speed of the train had gradually increased while plaintiff was passing around the station, but some of the evidence tends to show that it was still moving very slowly; and to plaintiff, as well as to some of the bystanders, it appeared easy to step upon it. While the conductor and a number of bystanders saw plaintiff about to enter...