St. Louis, Southwestern Ry. Co. v. Preston

• Decision Date: 16 March 1921
• Docket Number: (No. 152-3115.)
• Citation: St. Louis, Southwestern Ry. Co. v. Preston, 228 S.W. 928 (Tex. 1921)
• Parties: ST. LOUIS, SOUTHWESTERN RY. CO. OF TEXAS v. PRESTON.
• Court: Texas Supreme Court

228 S.W. 928

ST. LOUIS, SOUTHWESTERN RY. CO. OF TEXAS v. PRESTON.

(No. 152-3115.)

Commission of Appeals of Texas, Section A.

March 16, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by W. E. Preston against St. Louis, Southwestern Railway Company of Texas. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (194 S. W. 1128), and defendant brings error. Affirmed.

E. B. Perkins, of Dallas, J. M. Burford and Butler Rolston, both of Mt. Pleasant, and L. W. Davidson, of Mt. Vernon, for plaintiff in error.

R. T. Wilkinson, of Mt. Vernon, Evans & Shields, of Greenville, and Chas. L. Black, of Austin, for defendant in error.

SONFIELD, P. J.

Action by W. E. Preston, plaintiff, against St. Louis, Southwestern Railway Company of Texas, defendant, for recovery of damages.

The cause was submitted to the jury on special issues, and upon the special verdict returned judgment was rendered for plaintiff, which on appeal was affirmed. 194 S. W. 1128.

Plaintiff was a passenger on defendant's train from Dallas to Winfield. He was seated in the coach next to the baggage car from the locomotive. The front end of this coach was equipped with a vestibule and divided into two compartments, the front one being for negro passengers and the other the "smoker" for white passengers. Plaintiff was seated in the "smoker." Defendant's depot at Winfield was situated on the north side of its track, and passengers from and to that station, in compliance with its rules and regulations, usually entered and left its trains on that side. Plaintiff had with him a box of whisky, weighing, with its contents, some 40 or 50 pounds. He testified that before the train reached Winfield he had an understanding with defendant's porter to assist him to alight on the opposite side of the train from the station at Winfield. When Winfield was announced, he took up his box of whisky, and went into the compartment for negroes, the porter opening the vestibule door for him, and he stepped down on the next to the bottom step. The porter set the box down close to the top step. Plaintiff stood there, waiting for the train to stop. When the train was within 25 or 30 yards from the station, the porter told him it was time for him to get off, and thereupon shoved the box of whisky from the step onto him, causing him to fall from and under the coach, the wheels of which ran over his leg, so injuring it as to necessitate its amputation. Plaintiff further testified that at the time he made the request of the porter he thought a compliance with it would be against defendant's rules and regulations, and for that reason he did not make it until after another porter and the conductor, who were in the coach as it approached Winfield, had left the coach.

The porter denied assisting or agreeing to assist the plaintiff off the train, and denied being present when the plaintiff fell; and he and the other members of the train crew denied any knowledge whatever of plaintiff's intention to get off the front end of the negro coach and on the side opposite from the passenger station.

The only negligence alleged was the act of the porter in shoving or pushing the box upon and against plaintiff, causing him to fall from the train and under the wheels of the car.

Defendant answered by general denial and general demurrer and special pleas, to the effect: (1) That at the time plaintiff claims to have been injured he was under the influence of intoxicating liquor; that before the train reached Winfield, and while it was in motion, he voluntarily and unnecessarily, and without using ordinary care for his own safety, left his seat in the smoking car, went through the negro coach and out on the front platform, and down on the steps of said coach, on the south side thereof, and opposite from defendant's depot, carrying with him, out on the platform and down on the steps, the box of liquor, and, through the failure to exercise ordinary care, either fell or jumped off the train while it was in motion, or attempted to get his box of liquor off the train after he himself got off, and thereby received the injury, if any, of which he complains, and thereby was guilty of negligence which caused and contributed to cause his injuries; (2) that plaintiff prior to his injury solicited and secured from different parties living around Winfield various sums of money, for the purpose of going to Dallas and purchasing intoxicating liquors, to be delivered to such parties in violation of the penal laws of this state; that plaintiff thereafter did go to Dallas, and at the time he was injured was transporting the liquor to Winfield to be so delivered by him; that in order to avoid detection and arrest by the officers, he undertook to get off the train before it stopped, on the side opposite from the station, when, in some way unknown to defendant, and without any negligence on its part, he fell off and under the train; that in attempting to get off the train in the time, place, and manner in which he did, he was guilty of negligence which caused and contributed to cause his injuries; (3) that if the porter made any of the agreements or promises, or committed any of the acts alleged by plaintiff, he was acting entirely without the scope or apparent scope of his authority, and in collusion with and for the personal accommodation of the plaintiff, and defendant is not liable in any way for the alleged acts and promises.

The questions submitted to the jury, and answers thereto, are as follows:

"(1) State whether or not you find from the evidence in this case that the defendant's train porter, as charged by plaintiff, undertook to open the vestibule door for plaintiff and to aid the plaintiff in alighting and taking his box of liquor from defendant's train at Winfield, Tex. Answer: Yes.

"(2) State whether or not you find from the evidence in this case that defendant's train porter negligently pushed or shoved or caused plaintiff's box of liquor to fall from the steps in the vestibule of defendant's train, down the steps thereof, onto or against the plaintiff, thereby knocking him from the said steps, as alleged by plaintiff, as negligence is defined to you in this charge. Answer: Yes.

"(3) If you find from the evidence that defendant's train porter did negligently push, shove, or cause plaintiff's box to fall from the steps in the vestibule of defendant's train, down the steps thereof, onto or against plaintiff, then state whether or not the said act of defendant's train porter, if any, was the proximate cause as defined to you herein. Answer: Yes.

"(4) State whether or not you find from the evidence in this case that the plaintiff, while a passenger on defendant's train, took his box of intoxicating liquor to the vestibule of defendant's train at the front end of the coach prepared for colored people, with the intention to alight from said train on the opposite side from the depot, for the purpose of avoiding detection and arrest by the officers. Answer: No.

"(5) State whether or not you find from the evidence in this case that the plaintiff, without the aid of defendant's employés, or either of them, opened the vestibule door of defendant's train on the opposite side from its station at Winfield, and negligently undertook to alight with his box of liquor from defendant's moving train. Answer: No.

"(6) If you find from the evidence that plaintiff took his box of liquor to the vestibule of defendant's train, and opened the door and undertook to negligently alight with his box of liquor from defendant's train without the aid of defendant's servants, or either of them, then state whether or not you find that the said act of the plaintiff was the proximate cause of his injury. Answer: No.

"(7) State the amount, if any, of damages the plaintiff has sustained and suffered by reason of his injuries. Answer: $5,000."

Defendant asserts that the evidence establishes that its porter, in the performance of the act complained of as negligent, was acting for and in behalf of plaintiff, and beyond the scope or apparent scope of his authority, and that the Court of Civil Appeals erred in holding it liable for the negligence of the porter under the circumstances. A carrier is responsible for any conduct of its servants, intrusted with the carriage of a passenger, which results either in his wanton or negligent injury at their hands, regardless of the authority for the specific act, or that the infliction of the wrong was by the servant while acting in his own interest and in violation of his own duty as the carrier's representative. This liability is predicated upon the proposition that such a breach of the contract of carriage, through act or omission by the servant, is the violation of a duty, primarily that of the carrier, by one who, as respects that duty, stands in the carrier's place, clothed with all the carrier's...