Texas & P. Ry. Co. v. Black

• Decision Date: 18 June 1894
• Citation: 27 S.W. 118
• Court: Texas Supreme Court
• Parties: TEXAS & P. RY. CO. v. BLACK.

27 S.W. 118

TEXAS & P. RY. CO. v. BLACK.

Supreme Court of Texas.

June 18, 1894.

Error from court of civil appeals of fifth supreme judicial district.

Action by James Black against the Texas & Pacific Railway Company. To a judgment of the court of civil appeals affirming a district court judgment for plaintiff, defendant brings error. Reversed.

The following are the conclusions of law of the court of civil appeals (Rainey, J.):

"1. James Black having received Frank Black into his family upon his marriage with Frank's mother, and having assumed the burden of his support, he `stands in loco parentis, with the rights and obligations of a parent;' and, as such, he is entitled to the services of Frank, and has the right to sue and recover for the loss thereof. Gorman v. State, 42 Tex. 221; Mulhern v. McDavitt, 16 Gray, 406; Gerdes v. Weiser, 54 Iowa, 593, 7 N. W. 42.

"2. In the light of the evidence in this case, Frank Black must be considered a passenger, and, being such, appellant is liable for the injury sustained, although the brakeman, at the time he caused the injury, may have been acting beyond the scope of his actual or implied authority.

"3. There being no error in the judgment, the same is affirmed."

F. H. Prendergast, for plaintiff in error. P. A. Turner and J. M. Talbot, for defendant in error.

BROWN, J.

The court of civil appeals filed the following conclusions of fact in the above cause, in which judgment had been rendered by the district court against the plaintiff in error: "In 1887, Frank Black, a boy about 12 years of age, and stepson of appellee, James Black, boarded a freight train of appellant, at the T. C. Junction, five miles west of Texarkana, after obtaining permission from a brakeman, to whom he paid fifteen cents for the privilege. The train was composed of an engine, flat cars, and a caboose. When the train was nearing Texarkana and while running, the brakeman came out of the caboose, and told Frank to get off, which Frank refused to do. The brakeman then picked up a lump of coal. threw it at Frank, struck him above the eye, and knocked him off. The car ran over his feet, crushing them so they had to be amputated. There was no testimony as to whether or not passengers were allowed to ride on freight trains, further than the testimony of Frank Black, who testified as follows: `I had no ticket. Knew I did not need one, and had no reason to get one. I get ticket to ride on a freight train when I am going any distance. Some people buy tickets to ride on freight trains, and some do not. I have seen lots of them do it.' In the absence of other testimony, we conclude that he was a passenger, and was rightfully on the train. The appellee James Black, when he married Frank's mother, received Frank as one of his family, and provided for him as one of his own children. The service of Frank is worth the sum of $800." If the railroad company had a regulation prohibiting passengers riding on freight trains, and Frank Black knew of the regulation, he would not be entitled to the protection of a passenger. It would in such case rest upon the plaintiff to prove such facts as would show that the railroad company had permitted the use of its freight trains by passengers to such extent as would authorize one entering such train to believe that the rule had been abrogated by the company. Railway Co. v. Moore, 49 Tex. 47; Railway Co. v. Cock, 68 Tex. 717, 5 S. W. 635; Railway Co. v. Campbell, 76 Tex. 174, 13 S. W. 19. A railroad company has the right to carry passengers and freight by different trains, and, when such provision is made, the conductor and brakemen have no implied authority to receive passengers upon freight trains. It is not within the scope of their authority. When one gets on a train made up exclusively of cars appropriate alone to the carrying of freight and the the employes on such train, he must take notice of the fact that the train is not provided for passengers. Hutch. Carr. § 554; Patt. Ry. Acc. Law, § 215, 379; Waterbury v. Railway Co., 17 Fed. 671; Eaton v. Railway Co., 57 N. Y. 382; Robertson v. Railroad Co., 22 Barb. 91; Railway Co. v. Moore, 49 Tex. 47; Railway Co. v. Cock, 68 Tex. 717, 5 S. W. 635. In Eaton v. Railway Co., supra, the court said: "The presumption is that a person riding on a freight train is not legally a passenger; and it lies with him who claims to be one to take the burden of proof to show that, under the special circumstances of the case, the presumption has been rebutted. So if a stagecoach proprietor should regularly carry his passengers in a stage, and their baggage in a wagon, there would be a fair presumption that the wagon was not intended for passengers, though, under special circumstances, it might be used in that manner. A person asserting that he was a passenger, though riding in the baggage wagon, would be bound to prove it. In both these cases the distinction between the passenger and freight business would be so marked by external signs of classification that any person of ordinary prudence would take notice of it. This would be equivalent to actual notice, and the burden of proof would devolve upon him to show that the carrier had relaxed his rule." This case was referred to by Judge Moore in Railway Co. v. Moore, with seeming approval. Substantially the same doctrine is asserted by Judge Maltbie in Railway Co. v. Cock, supra. He said: "The servants of appellant, who gave appellee permission to ride on the car, are not shown to have had the power to abrogate or suspend rules promulgated by the proper authority for the operation of the road; and the court below could not assume that said servants, in so doing, were acting within the apparent scope of their authority."

There is a line of authority holding that where a person enters the caboose of a freight train, and is permitted by the conductor to remain, and fare is paid, he is to be considered as a passenger. The leading case seems to be Dunn v. Railway Co., 58 Me. 187. This case was referred to by Judge Moore in Railway Co. v. Moore, noting the criticism of Mr. Redfield, and in the same connection he referred to the case of Eaton v. Railway Co., cited above. Much is said in Dunn v. Railway Co. which is in conflict with well-settled principles of law, but it is to be observed that in that case the decision is consistent with the doctrine of Eaton v. Railway Co. That railroad company had before that time carried passengers on its freight trains, and had but a short time before changed that rule, of which change the injured party had no notice. The case of Dunn v. Railway Co....