Pullman Palace-Car Co. v. Nelson

• Decision Date: 04 December 1899
• Citation: 54 S.W. 624
• Parties: PULLMAN PALACE-CAR CO. v. NELSON et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 624

PULLMAN PALACE-CAR CO. v. NELSON et ux.¹

Court of Civil Appeals of Texas.

December 4, 1899.

Appeal from Nacogdoches county court; V. E. Middlebrook, Judge.

Action by A. A. and Mattie L. Nelson against the Pullman Palace-Car Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

McCormick & Spence, for appellant. Branch, Garrison & Blount, for appellees.

GILL, J.

The appellees, A. A. and Mattie L. Nelson, brought this suit against appellant, the Pullman Palace-Car Company, for damages for personal injuries; and, upon trial before the court without a jury, judgment was rendered in favor of appellees for $900. The allegations in the petition are to the effect that Mattie L. Nelson, wife of A. A. Nelson, being an invalid, and it becoming necessary to take her to Galveston, that she might undergo a grave surgical operation, A. A. Nelson procured the railroad agent at Nacogdoches to wire to the agent of appellant at Shreveport to reserve a lower berth in appellant's sleeping car, and that appellant's agent at Shreveport, whose name is averred to have been W. L. Stout, replied by wire to the effect that a lower berth would be reserved for appellee as requested; that said agent was advised of the illness of Mrs. Nelson in the message requesting the berth; that by reason of these facts the appellant agreed and contracted to furnish appellees with a lower berth from Nacogdoches to Galveston on the date in question; that, relying upon the agreement, appellees, after procuring first-class railway tickets from that point to Galveston, boarded the train at Nacogdoches fully expecting to find a berth reserved for their use; that they found the door of the sleeper locked, but upon their final admission they found that no lower berth had been reserved for them; that lower 9, which had been promised them, had been let to another person, and all the other lower berths had been taken; that on account of Mrs. Nelson's condition she could not use an upper berth; that upon ascertaining the situation the request was made that the train be stopped, and appellees be let off, as she (Mrs. Nelson) apprehended grave injury to herself if compelled to sit up all night; that this was refused, but the agents of the appellant in charge of the car offered to make down a bed for them in the smoking compartment of the car, which was a place not adapted to the purpose, was where the trainmen usually slept, and was a place in which she could not have the privacy and comfort which would have been afforded her in a lower berth, such as she had contracted for; that under the circumstances they were forced to accept the accommodations offered, for which was demanded two dollars, which sum they paid; that as a result of the poor accommodation so furnished she suffered great physical pain and mental distress; that all during the night the apartment was being entered by the porter and other trainmen; that persons were permitted to congregate at the door of the apartment and use loud, vulgar, and profane language, which greatly disturbed and humiliated her; that several passengers were permitted to enter the apartment during the night, but seeing a lady they retired; that no effort was made on the part of the appellant's employés to prevent these intrusions and unseemly noise and language; that as a result of all this her rest was so disturbed, and she was so shocked and humiliated and endured so much physical pain, that it was some time after she reached Galveston before she was sufficiently recovered to undergo the operation, for all of which they asked damages. Appellant answered, after exceptions by general denial, by sworn plea of non est factum, denying that it or any person authorized so to do had made the alleged contract to reserve the berth, and that the only contract made with appellees was the one whereby they were furnished a berth in the waiting room, which they took with notice of the facts, and that all the lower berths were then occupied. The evidence supports the allegations of failure to reserve lower berth. Shows that appellees were compelled to accept accommodations offered them in the smoking room; that this was greatly inferior in comfort and privacy to a regular lower berth; that it was not designed for the accommodation of passengers, but was, when occupied at all as a sleeping apartment, occupied by the porter of the car; that the privacy of appellees was intruded upon many times during the night both by the porter and other persons; that appellee Mrs. Nelson was so sick she had to be carried on and off the train in her husband's arms; that as a result of the poor accommodations and the intrusions, and profane and vulgar language uttered in her hearing at the door of her apartment by other passengers, she was kept awake all night, and she endured great physical pain and mental distress and humiliation during the entire night; that appellees had first-class railway tickets, and, being refused the privilege of getting off the train, accepted the inferior accommodation offered, and paid appellant two dollars therefor, she lying on the bed prepared therein for her, and her husband sitting by her on a seat; that appellant was negligent in permitting the intrusion upon the privacy of appellees by the porter and others, and negligent in permitting them to be disturbed by the loud, profane, and obscene language uttered at the door, no effort being made by appellant to prevent it; that the necessity for accepting the inferior accommodations was the proximate result of their failure to secure a lower berth. And these facts are found in substance by the trial court.

The court also found that W. L. Stout was shown to have been the agent of appellant in the making of the contract whereby the lower berth is alleged to have been reserved, and that such agent was apprised of the condition of Mrs. Nelson, and the necessity that appellees should know in advance whether the lower berth could be reserved for them. This latter...