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

• Decision Date: 31 March 1897
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Williams, 40 S.W. 350 (Tex. App. 1897)
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.<SMALL><SUP>1</SUP></SMALL>

40 S.W. 350

MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.¹

Court of Civil Appeals of Texas.

March 31, 1897.

Appeal from district court, McLennan county; S. R. Scott, Judge.

Action by W. B. Williams, for the use of a minor son, against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Clark & Bolinger, for appellant. Jas. A. Harrison, for appellee.

KEY, J.

Appellee brought this suit for the use and benefit of his minor son, Eaton Williams, to recover damages for personal injuries. The testimony shows that Eaton Williams was in the town of Bruceville, on the line of appellant's railroad; that he desired to return to Waco; that he was not at the depot when the train going to Waco arrived, but, hearing it approach, he 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, and located immediately behind the engine and tender. He testified that he got on there because he had no time to get on elsewhere; the train going down grade, and at an accelerated rate of speed. He also testified (and in support of the verdict we find) that he had the money with which to pay his fare to Waco, and intended to do so. He 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 and keep down the dust, began throwing hot water on said Williams, and continued to do so until he jumped off the train. The jump caused the injuries complained of, and for which the jury returned a verdict in his behalf for $2,000. It is strenuously contended by appellant that this case is analogous to Railroad Co. v. Cooper, 88 Tex. 607, 32 S. W. 517, in which it was held by the supreme court that Cooper, who was riding on the engine when the fireman turned a hot-water hose upon and injured him, had no cause of action against the railroad company. In that case Cooper was not shown to be a passenger, and it is stated in the opinion that, if he had been a passenger, the rule of liability would have been different. If Eaton Williams was a passenger on appellant's train, then the doctrine announced by the supreme court in the Cooper Case does not apply. In Railroad Co. v. Washington, 30 S. W. 719, this court held: "By article 4258b, § 9, Sayles' Civ. St., the rate of passenger fare on railroads is fixed at three cents per mile; but it is therein provided that, by paying four cents per mile, passengers may pay their fare to the conductor. It must, therefore, be held that any one who, in good faith, boards a train carrying passengers, prepared and intending to pay his fare to the conductor, is a passenger, and that the railroad company owes him the same protection that it does any other passenger." And it was there held that, although Washington had not paid his fare, inasmuch as he had the means and intention to do so, he was a passenger, and the railroad company was liable for an assault made upon him by one of its employés, although said employé may not have been acting within the scope of his authority. Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139; Thomp. Carr. 352. Counsel for appellant make the argument that, in order for one not holding a ticket to become a passenger on a railway train, he must not only have the means and intention to pay his fare, but he must also get in a passenger coach,—the place provided for passengers, —and that when he gets on the train at some other place, and especially, as in this case, when he locates himself at a place that cannot be reached by the conductor without...