Southern Kansas Ry. Co. of Texas v. Wallace

• Decision Date: 21 December 1912
• Citation: 152 S.W. 873
• Parties: SOUTHERN KANSAS RY. CO. OF TEXAS v. WALLACE.
• Court: Texas Court of Appeals

152 S.W. 873

SOUTHERN KANSAS RY. CO. OF TEXAS v. WALLACE.

Court of Civil Appeals of Texas. Amarillo.

December 21, 1912.

Rehearing Denied January 18, 1913.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by C. H. Wallace against the Southern Kansas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellant. J. L. Penry and R. E. Underwood, both of Amarillo, for appellee.

HUFF, C. J.

This is an action in the district court of Potter county, Tex., by C. H. Wallace, plaintiff, against the Southern Kansas Railway Company of Texas, defendant, to recover damages on account of the alleged ejection of plaintiff's wife from defendant's train May 4, 1910. Plaintiff alleged that on the morning of May 4, 1910, he took his wife and two children, together with his wife's brother, a boy of about 16 years of age, to defendant's station at Amarillo, Tex., for the purpose of embarking on defendant's train to Kansas City, Mo.; that, upon his assisting his wife and children upon the train, he was informed by defendant's agent that it would be necessary to check a certain go-cart; that he took his wife's ticket to check the go-cart and returned to the baggage room for that purpose, then returned, boarded the train to give his wife the baggage check, and in the rush incident to so doing, and while the train was beginning to move out, he delivered the check to his wife, forgetting to give her the tickets; that thereafter defendant's conductor requested tickets, and plaintiff's wife for the first time discovered that plaintiff had not returned them to her; that thereupon she asked if she could not wire for her tickets or pay her fare to Panhandle, which request was refused by the conductor, and plaintiff's wife and children were ejected from defendant's train about three miles from Amarillo, and were required to walk back to defendant's station in the rain and mud, causing plaintiff's wife and children to become sick and suffer humiliation, shame, etc. The petition further alleged she then requested the conductor to accept money according to the usual rate of transportation of herself and brother until her husband could have time after discovering his failure to deliver to her the tickets, as he would probably do, and would then telegraph the transportation to her or make other satisfactory arrangements with the defendant for her transportation, which request again being refused by said conductor, she requested him to accept money from her for transportation into some town along defendant's line of railroad, where she could receive for herself and children protection from the weather, and be saved from the humiliation of being put off the train in the presence of passengers and without protection, all of which requests were refused by the conductor, and the petition asks for damages in the sum of $10,000. Defendant answered to the merits by general denial and by plea of contributory negligence upon the part of the plaintiff in putting his wife and children on board said train without furnishing them tickets, and that said wife and children were negligent in failing to take proper steps to minimize their damages; that said persons not being in possession of tickets or other means of transportation, and without offering to pay cash fare, had no right to ride upon defendant's train, and defendant's conductor had the right and authority, and it was his duty under the law, to stop said train and to request plaintiff's wife and the persons accompanying her to alight therefrom, and that the defendant's conductor exercised ordinary care in so doing.

Trial was had before a jury, resulting in a verdict and judgment for the plaintiff in the sum of $1,000. We find in accordance with the verdict of the jury that the facts established that the wife of plaintiff, Mrs. Wallace, offered to pay railroad fare to Panhandle City on defendant's line of railway for herself and children and brother, and that the conductor in charge of the train refused to accept the same, and told her that all she could do was to get off. We also find the verdict of the jury establishes that the language used by the conductor was angry and harsh, and in the presence of the passengers then on the train was calculated to mortify and wound the feelings of the wife, and did do so, and that he did not use ordinary care in selecting a suitable place for the wife and her children to alight, and that, by reason of his negligence, the wife was damaged in the sum found by the jury. We find that the ground was wet and muddy from rains then falling and which had fallen the night and day previous, and that her garments were bedraggled and wet as contended by her, and that the train was at least a mile and a half from the depot to the point where she was put off of the train. We conclude that she was a passenger on the train and entitled to protection as such, and that the servants of appellant were negligent in putting her off at the point they did with her children and baggage, and that the injury was the proximate cause of such negligent acts on the part of defendant's servants.

Appellant's first and second assignments of error complain at the action of the court in overruling its first and second special exceptions to plaintiff's petition, wherein it is alleged that defendant was negligent in refusing to accept the baggage checks in the hands of the wife of the plaintiff as evidence of her right to transportation, and to the allegation therein that defendant knew according to usage and custom of business that baggage checks would not have been issued if the holder had not exhibited a ticket to the destination indicated in said baggage check as being insufficient to show negligence.

The only grounds of negligence submitted by the court were that, if plaintiff was a passenger on said train by reason of an offer by her to pay fare to Panhandle, then it was negligent to require her to leave the train, and, if she was not a passenger on said train, then whether or not appellants used ordinary care in ejecting her therefrom in a proper manner, and in selecting a proper place for her to leave the same. The court did not submit the question of negligence alleged to the effect that the conductor failed to accept the baggage check as evidence of transportation, or that it knew of the custom so alleged and negligently refused said check. If there was any error in overruling the exceptions to the petition, it was harmless, and it is not shown in any way to have injured the appellant. Railway Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622; Bolton v. Prather, 35 Tex. Civ. App. 295, 80 S. W. 666; Railway Co. v. Beene, 47 Tex. Civ. App. 585, 106 S. W. 456; Railway Co. v. Pate, 113 S. W. 994.

The third and fourth assignments complain at the action of the court in permitting the witness, Mrs. C. H. Wallace, to testify, over the objection of appellant, that the conductor did not ask her if she had any money, and did not ask her about any money at all, and to answer the question: "State whether or not he (the conductor) made any inquiries or what, if any, inquiries did he make about your paying or your ability to pay fare and continue on your journey?" To which she answered: "He did not ask any question at all." It was objected that the testimony was immaterial and irrelevant, and because it was not the duty of the conductor to request fare, since fare must be tendered to give a passenger the right to ride in the absence of a ticket. Mrs. Wallace had on direct examination testified she had $20 with her, and that her brother had $25. The testimony complained of appears to have been brought out on redirect examination, in which she was asked as to what the conductor had said to her about the transportation. She had said to the conductor: "Can I pay my way to Panhandle, and pay you for sending a telegram back, and certainly we can manage some way out of this." The conductor said all he knew was to get off. He had previous to this signaled to stop the train. After the train stopped and she had been informed that the only thing to do was to get off, she testified she again asked if there was not some way to manage so that she could go on, and not be put off in the rain, and that she again told the conductor that she would pay for a telegram, and asked him if he could not send one back. While it was not the duty of appellant to carry appellee's wife to the station without paying fare or offering to do so, she evidenced a willingness to do so and had money with which to pay the fare, if her testimony is to be believed, and the jury appears to have done so. The conductor stated to her all he knew was for her to get off. If this was true, she did not have to make an actual tender of the money, nor perhaps make a specific offer. The testimony tended to show that the conductor was hasty in the matter, and did not act with that consideration which the relation of the parties at the time and under the circumstances demanded. The testimony was explanatory of his act and conduct and the transaction itself, to which the jury was entitled. Railway Co. v. James, 82 Tex. 306, 18 S. W. 589, 15 L. R. A. 347; Railway Co. v. Bunn, 41 Tex. Civ. App. 503, 95 S. W. 640; Railway Co. v. Bond, 62 Tex. 446, 50 Am. Rep. 532; Railway Co. v. Patterson, 7 Tex. Civ. App. 451, 27 S. W. 197; M., K. & T. Ry. Co. v. Brown, 135 S. W. 1076.

The fifth assignment of error is to paragraph No. 1 of the court's charge, because, as it is asserted, the court instructed the jury that the plaintiff's wife was a passenger if she offered to pay fare without regard to her ability to pay fare and without regard to her willingness to do so. The court charged the jury that if plaintiff's wife "then and there offered to pay to the agents, servants, and employés of defendant...