Receivers International & G. N. Ry. Co. v. Armstrong

• Decision Date: 20 September 1893
• Citation: 23 S.W. 236
• Parties: RECEIVERS INTERNATIONAL & G. N. RY. CO. v. ARMSTRONG.
• Court: Texas Court of Appeals

23 S.W. 236

RECEIVERS INTERNATIONAL & G. N. RY. CO. v. ARMSTRONG.

Court of Civil Appeals of Texas.

September 20, 1893.

Appeal from district court, Williamson county; W. M. Key, Judge.

Action by J. E. Armstrong against the receivers of the International & Great Northern Railway Company for personal injuries. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

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

FISHER, C. J.

Appellee was a passenger upon appellants' freight train, by virtue of a stock shipper's contract, wherein it was provided that he should look after and feed and water his car load of horses en route from Taylor, Tex., to Memphis, Tenn. While the train had stopped at Rockdale, in the night, he, in an effort to get up one of his horses that was down in the car, got upon the drawhead of the cars between the caboose and the car in front, in which his horses were confined; and, when in such position, the train was, without warning or signal, backed, and thereby caused his foot to become fastened between the deadwood and the drawhead of the cars, and severely crushed. For the damages resulting from the injuries sustained, he brings this suit, and, upon trial, verdict and judgment were in his favor.

The first assignment of error goes to the ruling of the court in overruling the demurrers addressed to the petition. No error was committed in this ruling, and we dismiss the question without discussion.

The fourth subdivision of the charge of the trial court instructs the jury that, "under the contract of shipment, the plaintiff was a passenger on defendants' freight train on the occasion in question, having the right and privilege, when said train was not moving, of leaving the caboose, (in which it was his duty to remain while the train was in motion,) to see about and attend to his said car load of horses, being transported on said train. Such right and privilege, however, did not relieve plaintiff from the duty of avoiding apparent danger, and the exercise of care and caution to protect himself from injury. The law requires him to exercise such care while attending to said live stock as a man of ordinary prudence would have exercised under such circumstances." Appellants contend that it was error to give this charge, for the reasons, substantially, that the provision in the contract of shipment requiring the appellee to feed and water and to generally look after his stock was void, and could not be enforced as the duty, in such case, rested upon the carrier, and that it could not shift it by a contract to that effect, and that the appellee was under no obligation or duty to look after his stock, and when he did so he attempted the exercise of a right not ordinarily given a passenger, and that the charge quoted permits him to exercise such a right free of the risks and burdens he assumed as an employe by virtue of his conduct. It is held that provisions in contracts of this character, making it the duty of the shipper to feed and water and care for his stock, will not be given effect, so as to relieve the carrier of its duty to the shipper as a passenger traveling upon a drover's pass, and will not relieve the carrier from its negligence in failing to exercise the proper degree of care in the general exercise of its duty that it, as a carrier, owes to stock placed in its possession for transportation. Railway Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Ivy, 71 Tex. 414, 9 S. W. Rep. 346; Railway Co. v. Smith, (Tex. Sup.) 16 S. W. Rep. 803. The primary reason why a carrier cannot, in this respect, shift its responsibility and duty, is that it is not just and reasonable, in the eye of the law, to permit it by contract to relieve itself from responsibility for the negligence of itself or servants, and to permit it by contract to shift a duty and responsibility that it, as a common carrier, owes to the shipper, and to the preservation and care of the thing confided to its custody for shipment. But do these rules of law necessarily result in denying the privilege to the shipper to look after his stock, when so agreed to by the carrier? It is true the carrier cannot, by contract, relieve itself of this duty by placing its performance upon the shipper, nor can it, by contract, relieve itself of its duty to the shipper as a passenger, when accompanying the shipment, but it may grant the privilege or license to the shipper to look after his stock, holding him liable for his negligence in the exercise of it. The shipper, in looking after his stock under such a grant of privilege or license from the carrier, does not lose his status as a passenger, and the duty of the carrier in the exercise of proper caution and care towards him still exists; and if the shipper, under such circumstances, exercises due care and caution, the carrier will be liable for the results of its negligence in inflicting injury upon him. But if when exercising this privilege, granted by the carrier, the shipper fails in the exercise of proper care and caution, such consequences rest upon his shoulders, and the carrier is not responsible for injury received under such circumstances. The law does not deny the privilege of the shipper to look after his stock, if he so desires, under a license from the carrier, provided he does so in a prudent manner. What it does deny is the right of the carrier to contract away its duty in this respect. Granting the privilege to the shipper to look after his stock, and his doing so, is not necessarily the exercise of authority, or the performance of an act that is in conflict with the duty of the carrier in that respect. Doing this thing by the shipper does not relieve the carrier of its duty in the premises. If the shipper, in the exercise of that privilege, places himself in a position of peril and danger that does not ordinarily exist to passengers generally in traveling upon freight trains, he assumes what extra risk may exist by reason of such acts, but performing the act that places him in such extra hazardous or dangerous position does not relieve the carrier from the exercise of proper care in its conduct towards him. This reduces the questions to simply those of care, caution, and negligence, which are properly matters to be considered by the jury, and which are left to their determination by the charge quoted.

It appears that, when the freight train upon which the appellee was injured arrived at Rockdale, one of the brakemen told him to get up and look after his stock, that the train would be there some little time, and that they would wait for a train to pass, or words to that effect. The appellee, after this statement was made, went out of the caboose for the purpose of looking after his stock, which was in the car immediately in front of the caboose, and found one of his horses down, in the end of the car next to the caboose. In order to get up the horse, he stood on the drawhead between the caboose and the car, and prodded the horse with a stick or pole; and, while in such position, the train, within a few minutes after it had stopped, without signal, backed, and appellee's foot was caught and crushed between the drawhead and the deadwood of the cars. The principal fact in the case, upon which the appellee bases his right to recover, is the authority given him by the brakeman to look after his stock, claiming that such authority from the brakeman is binding upon his employers, the appellants, he being at the time one of their servants employed in operating the train. The appellee contends that he placed himself in the position he occupied when injured — that is, upon the drawhead between the cars — by reason of the statement made to him by the brakeman, authorizing him to look after his stock, and that the train would remain stationary for some time; believing that the effect of such statement was an invitation to that extent, and that he could rely upon the servants of the appellants not moving the train without a timely warning to him, contending that the authority coming from the appellants through the brakeman to him, to look after his stock, implied the right for him to assume any position on or about the car that was necessary for him to occupy in order to get up the horse that was down, although such position may have been one of extra hazard or danger, and the effect of such invitation, coming from the brakeman, was notice to appellants that he might assume such dangerous position in his effort to look after his horses, and they were guilty of negligence in moving the train before giving him timely notice of their purpose. It is not denied that the position upon the drawhead, between two cars of a moving train, or one likely to move at any moment, is one of danger. Such is virtually admitted by the appellee, for when he was asked the question, "Would you have put yourself in the position you did, but for the statement of the brakeman?" he replied, "I would not, for the whole road," — thus recognizing the peril he assumed by reason of placing himself in that position, his excuse for so doing being the authority from the brakeman. The evidence shows that there was a conductor in charge of the train, and that he was not present when the statement was made by the brakeman, and knew nothing of it, and that at the time he was towards the front of the train, and that he knew nothing of the matter until after the appellee was injured. It also appears that when the brakeman made the statement he immediately left the caboose, and went towards the front of the train, and that neither he, nor any...