Prince v. I. & G. N. R'Y Co.

• Citation: 64 Tex. 144
• Decision Date: 12 May 1885
• Docket Number: Case No. 5481.
• Court: Supreme Court of Texas
• Parties: T. M. PRINCE v. I. & G. N. R'Y CO.

64 Tex. 144

T. M. PRINCE

v.I. & G. N. R'Y CO.

Case No. 5481.

Supreme Court of Texas.

May 12, 1885.

APPEAL from Hayes. Tried below before the Hon. H. Teichmuller.

Suit by appellant to recover damages for personal injuries sustained through the alleged negligence of appellee while appellant was being transported by appellee as a passenger upon its railroad.

The petition alleged in effect that through the negligence of the employees of the company, plaintiff sustained injuries while riding on a hand-car on which he was invited to ride, and on which he was received as a passenger, and that the company sometimes used said hand-car for the transportation of passengers invited to travel on it by the proper agents of the company free of charge.

A demurrer to the petition was sustained, on which judgment for defendant was entered, from which this appeal was taken.

O. T. Brown, for appellant.

Hutchison & Rose, for appellee, cited: Hoar v. Maine Cent. R'y Co., 35 Am. Rep., 299;Chevallier v. Strahan, 2 Tex., 121;Haynie v. Baylor, 18 Tex., 507; Redf. on Carriers, 15; Hutchinson on Carriers, sec. 47; Mo. Pac. R'y v. Douglas, 2 Tex. Law Rev., 281.

WILLIE, CHIEF JUSTICE.

In sustaining the special demurrer to the petition, the court below in effect held, that as the railroad company did not commonly transport passengers upon hand-cars, and the appellant was injured whilst being transported gratuitously, at the invitation of the company's agents, upon one of these cars, he could not recover though the injury happened through the negligence of the company's employees in charge of the car.

The duty of a railroad company to transport passengers safely, and its consequent liability for a breach of this duty, arising from the negligence of its servants, does not result alone from the consideration paid for the service. “It is imposed by the law even when the service is gratuitous. ‘The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.’ Coggs v. Bernard, 1 Smith's Leading Cases, 282.” Phil. & R. R'y Co. v. Derby, 14 How., 486.

A gratuitous bailee must answer for goods left in his charge, if lost through his gross negligence. A railroad company receiving passengers upon its cars cannot, through indifference to their safety, allow them to be injured in life or limb, without accounting in damages, though they have paid no passage money. It is enough that the passenger is lawfully upon the cars of the company at the time he is injured. Whether he is lawfully or unlawfully upon the cars does not depend upon his having paid fare for his transportation. One may pay fare and yet be unlawfully upon the train, as in case of a passenger upon a freight train when the rules of the company positively forbid the carrying of passengers upon such trains. Railway Co. v. Moore, 49 Tex., 31.

On the other hand one may be lawfully upon the cars without paying fare, when he is there by invitation or permission of the officers having authority to allow him to ride free of charge.

Nor does the question of whether or not a passenger is lawfully upon a train depend necessarily upon the purposes to which the train is usually devoted. If usually employed in the transportation of passengers, a person who has paid his fare, or has been invited to ride free of charge, is presumed to be lawfully upon the train. If, by the rules of the company, passengers are expressly forbidden to be carried upon a particular train, the presumption is that any one claiming to be a passenger upon such a train is an intruder and without lawful right to be there. This presumption may be rebutted by showing that, whilst the rules forbid the transportation of passengers upon these trains, yet, with the knowledge of...