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

• Decision Date: 22 November 1897
• Citation: 42 S.W. 855
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.
• Court: Texas Supreme Court

42 S.W. 855

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

Supreme Court of Texas.

November 22, 1897.

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

Action by W. B. Williams, for use of Eaton Williams, against the Missouri, Kansas & Texas Railway Company of Texas, to recover for personal injury sustained by said Eaton. A judgment for plaintiff was affirmed by the court of civil appeals (40 S. W. 350), and defendant brings error. Reversed.

Clark & Bolinger, for plaintiff in error. Jas. A. Harrison, for defendant in error.

BROWN, J.

Eaton Williams, a minor, was in the town of Bruceville, on the line of railroad which belonged to plaintiff in error, and desired to return to Waco. He was not at the depot when the train going to Waco arrived, but, hearing it approach, ran, and got on it as it was leaving the depot. He got on the front end of the first car that came by him, which was the baggage car, located immediately behind the tender, because he had not time to get on elsewhere, the train being then in motion, going down grade at a rapid speed. He had the money with which to pay his fare to Waco, and intended to do so, but had no ticket. When the train had gone about 200 yards, the fireman, using a hose that was on the engine, and used by the engineer and fireman to dampen the coal to keep down the dust, began throwing hot water on said Williams, and continued to do so until he jumped off the train, by which he broke his leg. The plaintiff below recovered a judgment for $2,000, which was affirmed by the court of civil appeals. This suit was brought by the next friend of the injured party to recover damages of the railroad company in favor of the boy Eaton Williams. Upon the trial the district judge charged the jury as follows: "And by a `passenger,' as herein used, is meant that any person who in good faith boards a train carrying passengers, prepared and intending to pay his fare to the conductor, is a passenger, and it makes no difference what part of the train he boards, provided, of course, he occupies a safe place." Error is assigned upon this charge, which presents the only question that we deem it necessary to discuss.

The relation of passenger and carrier depends upon the existence of a contract, either express or implied. It is not claimed in this case that there was any express contract between the railroad company and Eaton Williams, but it is claimed that an implied contract arose under the law when Eaton...