Tex. & Pac. Ry. Co. v. Murphy

• Decision Date: 01 January 1876
• Parties: THE TEXAS & PACIFIC RAILWAY COMPANY v. JAMES MURPHY.
• Court: Texas Supreme Court

46 Tex. 356

THE TEXAS & PACIFIC RAILWAY COMPANY

v.JAMES MURPHY.

Supreme Court of Texas.

1876.

APPEAL from Harrison. Tried below before the Hon. M. D. Ector.

This suit was brought by James Murphy, to recover $20,000 damages, alleged to be due on account of the negligence and gross misconduct of the conductor on a passenger train of the Southern Pacific Railroad Company. The petition alleged, that plaintiff had a ticket from Jonesville to Hallsville, on the company's line; that on the 26th day of May, 1871, he was waiting for the train at Jonesville when it arrived; that during its stoppage he was at a convenient distance from the train, waiting for the signal to be given to start; that when the signal was given, he proceeded to get on board at the usual entrance, but that the cars started at the same instant in which the signal was given, and in the attempt to get on board, he was violently thrown from the train by reason of the rapidity with which the train was moving, and his right arm falling on the iron rail, was cut off before he could remove it; that said injury was caused by the gross negligence and mismanagement of plaintiff in not stopping five minutes at Jonosville, as required by the statute. Amended petitions were filed, which are noticed in the opinion, in which a consolidation of the Texas and Pacific Railway Company with the Southern Pacific Company is alleged.

The answer of the company consisted of a general denial, and, by amendment, it was alleged that defendant was not a passenger; that he was drunk, and attempted to get on the train when it was in motion, and while another was in the gangway, with whom he was struggling when he fell; that his injury was not caused by the negligence of the company's agents; that the train did not leave the station until after the usual signal, and that plaintiff had paid nothing as a passenger.

The jury returned a verdict for $7,000 against the company, for which judgment was rendered. The charge of the court is too lengthy for insertion, but those parts of it to which the opinion chiefly refers are sufficiently indicated by the opinion itself.

Stedman and Sexton, for appellant, contended--

1. That not a case can be found, where, upon a sale by one corporation to another, the purchaser has been held bound to answer in unliquidated damages for the torts of the vendor.

2. On the proposition that a passenger who attempts to get on a moving train of cars is guilty of contributory negligence, they cited Garrett v. Manchester and Lawrence R. R. Co., 16 Gray, 501;55 Ill., 379; and Phillips v. The Rennselaer and Saratoga R. Co., 49 N. Y., 177.

3. On the proposition that it was the duty of the court below to instruct the jury what facts would constitute contributory negligence, they cited R. R. Co. v. Aspel, 23 Penn., 145; Van Schaick v. Hudson River R. R. Co., 43 N. Y., 530;Garrett v. Manchester and Lawrence R. R. Co., 16 Gray, 501;53 Penn., 250;Deyo v. New York Central R. R. Co., 34 N. Y., 9;24 Vt., 487; and 11 Minn., 296.

They also referred, on the question of negligence generally, to 6 Coldwell, (Tenn.,) 45; 2 Bosworth, (N. Y.,) 374; 43 Mo., 405;9 Wis., 202;21 Wis., 372;44 Miss., 466; 23 La. An., 264, 462, 492; 3 Vroom, (N. J.,) 88; 26 Ind., 228; 4 Bush, (Ky.,) 593; 40 Miss., 374.George L. Hill, for appellee.

I. Where two companies are consolidated into one, the new company is liable to pay all the debts and obligations of both companies existing before the consolidation. See cases cited in Lacey's Digest of Railway Decisions, page 134, secs. 347-8, and page 135, secs. 24, 25. (I. B. & W. R. Co. v. Carr, 35 Indiana; Prouty v. L. S. & M. R. Co., 52 N. Y.; C. C. & I. C. R. Co. v. Powell, Administrator, 40 Indiana; Stevenson v. S. P. R. R. Co., decided by this court, at Tyler, October, 1874.

II. The defendant was guilty of violation of law and of gross negligence in the management of the train, 1st, in not stopping at Jonesville station five minutes, (see Paschal's Dig., art. 6532, act of November 6th, 1866;) 2d, in not giving notice of intended departure, by the usual signal. It cannot be imputed to plaintiff as negligence that he did not anticipate culpable negligence on the part of defendant. He had a right to presume that the defendant would obey the law, and exercise all proper care and diligence, and act on that belief. (Shearman & Redfield on Negligence, sec. 31; P. and T. R. Co. v. Hagan, 47 Penn., 244;Beisiegel v. N. Y. C. R. R. Co., 34 N. Y., 622;Penn. R. R. Co. v. Ogier, 35 Penn., 60;Ernst v. H. R. R. Co., 35 N. Y., 9.)

III. Contributory negligence is a question for the jury, being one of fact. (Beisiegel v. N. Y. C. R. R., 34 N. Y., 622;Johnson v. H. R. R. Co., 20 N. Y., 66;Phila. and T. R. Co. v. Hagan, 47 Penn., 244; Feler v. N. Y. R. R. Co., 49 N. Y., 47;Ernst v. H. R. R. Co., 35 N. Y., 38.)

IV. An attempt to get upon a train in motion is necessarily negligence. (Shearman & Redfield on Negligence, sec. 282; Evansville and C. R. Co. v. Duncan, 28 Ind., 441.)

V. Where a party by the wrongful act of another has been placed in circumstances calling for an election between leaving or boarding a train in motion, or submitting to an inconvenience and a further wrong, the defendant cannot avoid the consequences of its own wrong by charging negligence on the plaintiff. (Filer v. N. Y. C. R. R. Co., 49 N. Y., 47;Penn. R. R. Co. v. Kilgore, 32 Penn., 292; Foy v. London B. and S. C. R. R. Co., 18 C. B. R., N. S., 225; Siner v. G. W. R. Co., L. B., 3 Exch., 150; Penn. R. Co. v. Ogier, 35 Penn., 60; Biesiegel v. N. Y. C. R. R. Co., 34 N. Y., 622;Fero v. B. S. L. R. R. Co., 22 N. Y., 213;Johnson v. W. C. and P. R. R. Co., 70 Penn., 357.)

ROBERTS, CHIEF JUSTICE.

The appellee brought a suit in 1871 against the Southern Pacific Railroad Company, for damages, for an injury to his person by the negligence and misconduct of the conductor of one of its trains, in running the same upon the road; and during the pendency of the suit, alleged in an amended petition, that the Southern Pacific Railroad Company and the Texas and Pacific Railway Company had been consolidated, and that said latter company was liable for the said damages. It was proved on the trial by Hall, who had been vice president of the former company, that the consolidation took place on the 21st of March, 1872. Appellee also alleged and read in evidence the several acts of the Legislature of the State of Texas, in relation to said consolidation of the two companies.

The appellant excepted to the petition, because the Texas and Pacific Railway Company was not liable for such damages so incurred, which was overruled.

The same question was raised by a charge, asked by the appellant, and refused by the court, upon the trial of the cause.

So far as anything appears in the pleadings of the parties and in the evidence upon the trial, we are of opinion that the court did not err.

The correctness of his rulings is deducible substantially from the decision of this court, in reference to the effect of said consolidation, in the case of Stephenson v. Texas and Pacific Railway Company, 42 Tex., 162.

Appellant contends that the petition is defective, in not having averred that the injury was inflicted upon him without any fault on his part in the transaction.

The petition, so far as it is necessary to be stated on this subject, alleged that appellee had procured a ticket as a passenger; was waiting at the Jonesville station; was at a convenient distance from the cars, where they had stopped, awaiting the signal to be given by the conductor; said conductor neglectfully, and in utter disregard of the convenience and safety of the passengers traveling and wishing to travel on said train, gave the said signal of departure, and at the same instant of giving said signal, caused said train to move, and your petitioner, immediately upon the giving of said signal, proceeded to get aboard of said train, by the means and at the usual entrance of the cars of said train, and your petitioner, in attempting to get aboard of said train as aforesaid, was thrown from said train “by reason of the great rapidity with which the said train was then moving,” and fell with his arm upon the rail of the track; and before he could remove it, it was run over and cut nearly off by the wheel of the car, so that it had to be amputated. It is further alleged, that the defendant, by the negligence and gross misconduct of said conductor of said train, crippled and maimed the petitioner by the loss of his hand and arm, as aforesaid, to his damage twenty thousand dollars.

The petition is amended by stating that the train was not stopped at said station five minutes, as was the duty of the conductor to do; and if it had been, he would have had time to get on the train without injury.

Again, by amendment, it is alleged that petitioner “was standing in about thirty feet of said station, where the said train stopped; that he started to said train, with the view of going aboard of the same, and that the said train moved off without giving any signal before starting; that he got to said train as soon as possible, and in endeavoring to get aboard of same as aforesaid was thrown from said train by reason of the movement of the same, and was injured as set out in the original petition.”

The negligence of the defendant, by which the injury upon plaintiff was produced, is repeated in the several amendments to the petition.

The petition sufficiently alleges that, by the negligence of the defendant, the injury was produced which entitled him to recover damages for it. Inasmuch as the petition does not aver that he, in doing as he did, was not guilty of negligence, the question upon this point is, do the facts as stated in the petition show that he also was guilty of negligence in the effort to get upon the car under the circumstances stated in the petition. If so, he makes the defense of contributive negligence for the defendant in stating his...