Missouri, K. & T. Ry. Co. v. Cook

• Decision Date: 03 October 1894
• Citation: 27 S.W. 769
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. et al. v. COOK.

Page 769

27 S.W. 769

MISSOURI, K. & T. RY. CO. et al. v. COOK.

Court of Civil Appeals of Texas.

October 3, 1894.

Appeal from district court, Williamson county; F. G. Morris, Judge.

Action by R. L. Cook against the Missouri, Kansas & Texas Railway Company and another for the value of a horse killed, and for personal injuries received in a collision. Judgment for plaintiff, and defendants appeal. Reversed.

This is an action for damages, brought by the appellee, R.L. Cook, against the Missouri, Kansas & Texas Railway Company and the Missouri, Kansas & Texas Railway Company of Texas, for the value of a horse killed, and personal injuries sustained by plaintiff, in a collision between two sections of a freight train, caused by the negligence of defendant the Missouri, Kansas & Texas Railway Company. Plaintiff owned a race horse, and defendant the Missouri, Kansas & Texas Railway Company received the horse from him at Dallas, Tex., under a written contract with him to ship the same to Taylor, Tex. The contract contained a stipulation that the owner was to load and unload, feed, water, and attend to the animal, at his own expense and risk, while in the car and yards of the company. To do this, the owner or person in charge was to ride on the train carrying his horse, the contract providing as follows: "For the consideration aforesaid the second party [plaintiff] further agrees that the said person in charge of said stock under this contract shall remain in the caboose car attached to the train while the same is in motion, and that whenever such person or persons shall leave the caboose car, or pass over or along the cars or track, they shall do so at their own risk of personal injury from any cause whatever," etc. By permission of the conductor, and according to a custom on the road, plaintiff rode in the car in which his horse was shipped, which was the second car in front of the caboose on section 1 of the train. Section 2 followed section 1, and the two sections were to run within five minutes of each other, or about two miles apart. The train was so running between Alvarado and Taylor, when, about 2 a. m. on November 4, 1891, the air-brakes on section 1 got out of order, commenced setting, causing the train to slow up and stop. The conductor immediately dispatched a brakeman to signal the other section of the train, coming on behind. The conductor waked up a deadhead brakeman in the caboose, got off, and went forward towards the "air cars," which extended back six or seven cars from the engine. He got to about the third air car, "bled" two to see if the air-brakes could be released, and while bleeding a car he heard the engineer say, "There they come, and they are going to hit us," and in a quarter of a minute the collision occurred. Section 1 was composed of 19 cars, besides the engine and tender. A man in the caboose got off after the collision unhurt. No one in the caboose was hurt, but it was knocked off both trucks. In the next car in front were a negro boy and four tramps, none of whom were hurt; but the car, and the one next in front, in which plaintiff was riding, "were torn all to pieces." Plaintiff's horse was killed, and he was severely injured, and three men and a boy who were in the car with him were killed. The brakeman sent back by the conductor to signal section 2 ran back for the purpose, but only got back the distance of 10 telegraph poles. He fell down an embankment and through a bridge on the way. Probably five or six minutes elapsed from the time the air-brakes began to stop the train before the collision.

Defendant set up the clause in the contract above quoted, requiring plaintiff to ride in the caboose, and that he would assume risk of personal injury of any kind if he should leave the caboose, claiming that he willfully violated this provision of the contract, and placed himself in the car with his horse without authority of the company; that he was a trespasser, and so was guilty of contributory negligence, without which he would not have been hurt. Plaintiff replied that defendant had waived the provision of the contract relied on to prevent a recovery; that the agent of defendant who had executed the contract, having authority to so act, authorized plaintiff to ride in the car with his horse and that it was the custom of conductors of defendant to waive the provision, well known to defendant; that the conductor, being duly authorized, permitted plaintiff to ride in the car, and that the provision was waived; that the provision was not violated, as the car was not in motion at the time of the injury; and, further, that after the train stopped he was in great peril from the collision by the other section, which was well known to the conductor, and of which plaintiff was ignorant; that the conductor had ample time in which to warn him, and that, had he done so, plaintiff would not have been injured, but that the conductor negligently failed to warn him, and so caused the injury. The trial resulted in a verdict for plaintiff for $500, value of the horse, and $15,000 for personal injuries and expenses of plaintiff. Defendants appealed.

Fisher & Townes, for appellants. J. W. Parker, for appellee.

COLLARD, J. (after stating the facts).

1. At the time the contract was executed, plaintiff had in his possession a first-class passenger ticket of defendant from Dallas to Taylor, purchased some time before. The contract was signed in duplicate, and plaintiff had folded his copy, and put it in his pocket. He then produced his passenger ticket, showed it to the agent who executed the contract for the company, and asked him if it entitled him to ride in the car with his horse, and the agent told him that "it did." This testimony was admitted by the court, over objections of defendant, and is the subject of assignment of error, upon the ground, as stated in the bill of exception, that it was an attempt to alter the express written agreement; that no authority of the station agent was shown to waive the provision of the contract requiring plaintiff to ride in the caboose; that the statement of the agent did not prove a waiver, but was only his construction of the contract; and that the waiver was without consideration. We are not prepared to say that the statement of the agent was a contemporaneous parol agreement with the written contract, intended to vary or contradict it, and therefore inadmissible under the rule. The facts seem to indicate that it was made after the written agreement was executed, and related to subsequent matters, and information subsequently furnished the agent. We think plaintiff could have relied upon the statement of the agent as a waiver of the contract stipulation, and that the latter had authority to waive. The company could have waived the provision after the contract was executed, and such waiver would be valid, whether in writing or by parol, and to make it valid it needed no additional consideration. Insurance Co. v. Norton, 96 U. S. 240; Hutch. Carr. 267-269; Hull v. Railway Co., 66 Tex. 620, 2 S. W. 831. What the company could do in this respect it could do by its agents. Generally, in the conduct of its business, a railway company must act by agents. They are placed in the various offices of the company to represent it, to transact its business, and are held out by the company as its legally-authorized agents; and persons dealing with them may presume that they are authorized to exercise powers necessary to be exercised at such places in the conduct and direction of the company's affairs. In this case the agent had just executed the contract of shipment with plaintiff,—a power which it is not denied he possessed. No one else was present, or would be expected to be on the ground, to inform plaintiff of his rights. The agent had the apparent authority to act, upon which the plaintiff might legally act. We think the testimony was admissible.

2. We think, for much more cogent reasons, that the conversations of plaintiff with the conductor of the train, informing him that he could ride in the car with his horse, and the acts of the conductor taking up his ticket while in the car, were admissible. These were the facts of the case, the events showing that he was in the stock car, and the authority by which he was there, the acts of the conductor in placing him in the car, and were res gestae. Whether the conductor had power to permit him to ride in the car is another question.

3. In order to show that the conductor had such power, plaintiff offered testimony of several witnesses, to the effect that it was a custom of conductors of this company to allow shippers of race animals and fine stock to ride in the car with them. The testimony was admitted by the court over the objections of the defendant. The testimony was not let in to allow a custom to supersede and annul the contract, but to show that the conductor had authority to do as he did, — to waive the stipulation in the contract requiring plaintiff to ride in the caboose. For this purpose the testimony was clearly admissible. The principle has been frequently recognized by the supreme court of this state. In Hull v. Railway Co., 66 Tex. 620, 2 S. W. 831, the court said: "To make a contract of a conductor binding on his principal, he must have...