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

• Decision Date: 04 April 1894
• Parties: MISSOURI, K. & T. RY. CO. OF KANSAS v. CHILTON.
• Court: Texas Court of Appeals

27 S.W. 272

MISSOURI, K. & T. RY. CO. OF KANSAS v. CHILTON.

Court of Civil Appeals of Texas.

April 4, 1894.

Appeal from district court, Dallas county; Charles Frederick Tucker, Judge.

Action by R. E. Chilton against the Missouri, Kansas & Texas Railway Company of Kansas and others for damages. From a judgment for plaintiff, defendant railway company appeals. Affirmed.

Alexander & Clark, for appellant. Chas. F. Clint and Harris & Knight, for appellee.

LIGHTFOOT, C. J.

The following statement is substantially correct:

Appellee, R. E. Chilton, plaintiff below, sues H. C. Cross and George A. Eddy, receivers, the Missouri, Kansas & Texas Railway Company of Kansas, and the Missouri, Kansas & Texas Railway Company of Texas. He alleges: That on June 16, 1889, plaintiff desired to send his wife, Susan N. Chilton, and his two little girls, to visit relatives near Newton Creek, on the line of the Dallas & Waco Railway, in Dallas county, at which he alleges that passenger trains of said receivers customarily stopped. That plaintiff relied upon the representations of appellants, and upon the custom of said receivers to stop their train at said Newton Creek, and purchased of said receivers, through their said agent, the necessary tickets for his family from Dallas to Lancaster. That thereupon plaintiff's wife and two daughters took passage on one of said receivers' trains, and exhibited to the conductor of said train said tickets, and the plaintiff's wife explained to said conductor her desire to be put off at Newton Creek, instead of going on to Lancaster; and said conductor having authority to do so, in pursuance of said custom, agreed to stop the train at Newton Creek, which was a well-known point on said railway, and to suffer plaintiff's wife and children to alight. That, when said train reached a point about two miles north of Newton Creek, said conductor stopped the train, and in a rude and boisterous manner, and over the protestations of plaintiff's wife, rudely, willfully, and maliciously, compelled her to leave the train with her little girls, two miles from Newton Creek as aforesaid, in the midst of a swamp, and in the darkness of night, several miles from human habitation. And plaintiff's wife undertook, in the exercise of due care and caution, to reach a public road leading to Newton Creek by cutting across the country; but that after wandering around the swamp for several hours, she at last found herself again on said railway track, and being then reduced to extremities, she followed the railway, crossing several bridges and trestles, being all the time in great fear, and at last, late at night, completely exhausted from fatigue, exposure, and fright, reached her relatives. That the exposure and excitement brought on as aforesaid caused plaintiff's wife to contract a severe cold and high fever, which confined her to her bed for two weeks, and left her enfeebled for several weeks; and in consequence of said injuries she sustained great physical injuries and distress of mind, to plaintiff's damage $3,000. That after the injuries aforesaid, and after the filing of this suit, on, to wit, June 13, 1891, the receivers were, by the judgment of the said circuit court of the United States, ordered to return all of the lines of the said railway and other effects in their hands, without sale, back to the Missouri, Kansas & Texas Railway Company of Kansas, which they did, on, to wit, July 1, 1891. Further, that said judgment provided that the property of said corporation, including said Dallas & Waco Railway Company, should become liable for all claims and demands accrued or to accrue against said receivers, growing out of their possession of said property; that said corporation should receive said property subject to said demands. That the property so returned to the Missouri, Kansas & Texas Railway Company of Kansas by said receivers exceeded the sum of $50,000,000, and that out of the current earnings of said roads the receivers had, during their administration, made permanent and valuable betterments and improvements thereon, and supplied rolling stock to the value of over $2,000,000. That by reason of said judgment returning said property to said railway company, and by reason of the statute in such cases made and provided, and the facts above set forth, the said Missouri, Kansas & Texas Railway Company of Kansas is liable for said damages. That from July 1, 1891, at noon, when said property was delivered to it by said receivers, said Missouri, Kansas & Texas Railway Company of Kansas operated the same until June 1, 1892, when, pursuant to an act of the 22d legislature of the state of Texas, approved April 16, 1891, in relation to the sale and conveyance of the Missouri, Kansas & Texas lines of railway in Texas, including said Dallas & Waco Railway Company, said Missouri, Kansas & Texas Railway Company of Kansas sold and conveyed all of its lines of railway in Texas, including said Dallas & Waco Railway, of the value of $30,000,000, to a corporation created under the laws of Texas, the same being the defendant the Missouri, Kansas & Texas Railway Company of Texas. That by the terms of said sale, as well as by reason of the provisions of the aforesaid judgment, said last-named company became liable and promised to pay said damages, and holds all of said lines and property expressly subject to such payment. Plaintiff asked judgment against Eddy and Cross, receivers, and against the Missouri, Kansas & Texas Railway Company of Kansas and the Missouri, Kansas & Texas Railway Company of Texas.

Defendants pleaded: (1) Demurrer. (2) General denial. (3) Defendants admitted that H. C. Cross and George A. Eddy were appointed receivers as alleged by plaintiff, on the 4th day of June, 1888, and were such receivers on the 16th day of June, 1889, when the cause of action herein is alleged to have accrued, and as such they had the control and operated the Missouri, Kansas & Texas Railway Company of Kansas, including the Dallas & Waco Railway, subject to the orders of the court appointing them. Defendants admitted that said receivers were duly and legally discharged by the court appointing them, on, to wit, the 1st day of July, 1891, since which time they have ceased to exist in said capacity. (4) That on June 16, 1889, there was no way or flag station, switch or stopping place, on the Dallas & Waco Railway, at Newton Creek, or near Newton Creek. That said receivers sold no tickets to Newton Creek, nor contracted or agreed to let passengers on at or near Newton Creek. That defendants had stations at which to stop for passengers to get off and on its trains, — regular stations located by the railroad. That otherwise trains could not run without great danger to the traveling public from collisions of trains. Defendants expressly deny that they, or either of them, or their agent or agents authorized to do so, contracted with plaintiff to transport his wife and two daughters to Newton Creek if he would buy for them a ticket from Dallas to Lancaster. That if said agent, or any other agent, sold said tickets to plaintiff, and contracted for the train to stop at or near Newton Creek, his contract was without authority, and does not bind these defendants, or either of them. That upon their representations, and at the special instance and request of plaintiff, without authority, the conductor of said receivers agreed to let them off at Newton Creek, and did stop at the place, which he thought was the proper place, and did let them off there. Defendants denied that Mrs. Chilton and her two daughters were ejected from the train. They allege that they could have ridden on to Lancaster, had they so desired, but they got off the train of their own free will and accord, without injury or force, or occasion for injury or force, from the conductor or other employees of the defendants. (5) That if Mrs. Chilton and her daughters suffered any inconvenience, exposure, or sickness on account of their getting off near Newton Creek, they alone are responsible. (6) That if Mrs. Chilton was exposed as alleged, and made sick, it was the result of her own contributory negligence.

Upon the trial of the cause, on February 15, 1892, plaintiff dismissed his suit as to the Missouri, Kansas & Texas Railway of Texas, whereupon the trial of the cause resulted in a verdict and judgment in favor of the plaintiff against the Missouri, Kansas & Texas Railway Company of Kansas for $1,160, and in favor of Eddy and Cross, receivers: the suit having abated, as to them, upon their discharge by the federal court. Appellant duly perfected its appeal.

The facts were, substantially, as alleged by plaintiff: That about June 16, 1889 (the railway company being in the hands of Eddy and Cross, receivers, appointed by the United States circuit court), appellee, desiring to send his wife, Susan N. Chilton, and two little girls (Ella and Etta, aged about 4 and 11 years, respectively), to visit relatives near Newton Creek (a way station on said line of railway, between Dallas and Lancaster), bought tickets for them from the agent of the receivers, from Dallas to Lancaster, and upon such tickets the conductor in charge of the train, and who had the management and control of the same, agreed to put them off at Newton Creek Crossing, — a few hundred yards from where their relatives lived. That Mrs. Chilton and the children boarded the train, expecting, under the agreement with the conductor, to be put off at Newton Creek Crossing. When the train reached Five-Mile bottom, — a point about two miles from Newton Creek, — the train was stopped in a muddy swamp, in the nighttime, several miles from any human habitation, and Mrs. Chilton and the children put off, against their protest. After wandering around in the mud and darkness for several hours, until about midnight, they finally reached the house of their friends. That by reason of fright, exposure, and fatigue caused from...