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

• Decision Date: 22 March 1911
• Citation: 135 S.W. 1076
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. BROWN.
• Court: Texas Court of Appeals

135 S.W. 1076

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. BROWN.

Court of Civil Appeals of Texas.

March 22, 1911.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by Mark Brown against the Missouri, Kansas & Texas Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Spivey & Carter, for appellants. Nat Lewellyn, for appellee.

JENKINS, J.

Spencer Brown, a negro boy about 18 years of age, either fell from appellant's passenger train, as it approached Lorena, a station on appellant's road, or was knocked or shoved from same by a porter on appellant's train, and received injuries from which he died on the following day. The father of the deceased, appellee herein, brought suit and recovered judgment against appellant for $1,000.

The theory of appellee is that the deceased boarded the train at Bruceville, a station five miles south of Lorena, without a ticket, but with money intending to pay his fare, and that he did so or would have done so had he been furnished an opportunity to pay the same. The court correctly instructed the jury that, if such were the facts, the deceased was a passenger on said train. The evidence relied upon to support this theory is that of Claude Elliott, who testified that he was a passenger on the negro coach, and that, just before the train got to Lorena, he saw the negro porter and another negro standing on the front platform of the passenger coach, and that the porter shoved the other negro off, and also the declarations of the deceased, made upon recovering consciousness, that he had money and paid his fare, and was pushed off by the porter. These declarations of the deceased, as testified to by Dr. Gordon, who was called to see him in 30 minutes after he was picked up, and by John Boldon, who assisted in picking him up a few minutes after he fell, were objected to by appellant, and error is assigned as to their admission. We think that they were properly admitted as res gestæ, and also that the deceased at the time of making the same had recovered consciousness sufficiently to comprehend what he was saying. The theory of appellant is that deceased was not a passenger, but was a trespasser, and that he was not pushed off but fell from the train. The evidence in support of this theory is that of the engineer who saw several persons running towards the train as it pulled out of Bruceville, but, on account of the darkness, he could not tell whether or not they were negroes, and that of another witness who testified that he saw two negroes board the train as it pulled out of Bruceville, and one of them got on the "blind" behind the tender, and the other whose name he knew to be Brown, but did not know his given name, got on the "blind" between the baggage and the mail coach. The porter denies pushing any one off of the train, or knowing anything about the occurrence. The conductor did not hear about any one either falling or being pushed from the train until he reached Waco.

The court instructed the jury to find for appellee if they found that the deceased was a passenger, and that he was pushed from the train by the porter, and that the porter was acting "within the apparent scope of his authority." Appellant assigns error as to this instruction upon the ground that the uncontradicted evidence shows that it was no part of the porter's duty, express or implied, to collect fares or put parties off of the train. We concur in this view of the testimony. Under the facts of this case, it was error to give this charge, but it was error in favor of appellant. If the deceased was a passenger on appellant's train and was wrongfully pushed therefrom by the porter or any other servant of appellant, the appellant would be responsible for such wrongful act, without reference to the authority of such servant, real or apparent. Railway Co. v. Washington, 30 S. W. 719; Dillingham v. Russell, 73 Tex. 41, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Railway Co. v. Edmond, 29 S. W. 518; Railway Co. v. McMonigal, 25 S. W. 341. Upon this question we make the following excerpt from the able opinion of the Supreme Court of Alabama in the well-considered case of Railway Co. v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43: "There appears to be some...