Texas & P. Ry. Co. v. Mangum

• Decision Date: 27 May 1887
• Citation: 4 S.W. 617
• Parties: TEXAS & P. RY. CO. and others v. MANGUM.
• Court: Texas Supreme Court

Page 617

4 S.W. 617

TEXAS & P. RY. CO. and others v. MANGUM.

Supreme Court of Texas.

May 27, 1887.

Appeal from Tarrant county.

W. H. Pope and Davis, Beall & Rogers, for appellants. Furman & Stedman and Stine & Stine, for appellee.

STAYTON, J.

This action was brought by the appellee to recover from the railway company, and its co-defendant, Ginocchio, on account of an injury alleged to have been received by him by reason of a defective door step which was placed at the entrance of an eating-house owned and kept by Ginocchio. The house in which Ginocchio was keeping a hotel or restaurant was on ground leased to him by the railway company for the period of 20 years, with a view to have thereon a house erected for the accommodation of the traveling public; and the house was erected by Ginocchio under plans furnished by the company, which are not claimed to have been in any way defective. The house belonged to Ginocchio, who erected it at his own expense. The lease contained provisions which gave the company the right to purchase the house, and terminate the lease, if Ginocchio failed to keep a first-class establishment of the kind contemplated. The land leased was contiguous to the platform of the railway company, and only 38 feet distant from its track. In front of the house of Ginocchio was a small platform erected by him, which connected with the platform erected by the company. It becoming necessary to elevate the house erected by Ginocchio, this was done; and, to furnish a step from the platform erected by Ginocchio to the house, he caused a piece of timber about 10 by 12 inches thick, and extending in front of several doors, to be placed on the platform erected by himself. It is claimed that this was placed so far from the house as to leave a space between it and the house so wide that the plaintiff's foot, in leaving the house, came between the step and the house, and that thus his leg was broken. It is not averred that any part of the platform erected by the company was defective, nor that the platform erected by Ginocchio was defective otherwise than as the step may be considered a part of the platform, nor that the injury resulted from any other cause than the defective step and the want of proper lights. The petition contains many general averments of negligence on the part of the railway company, without specification of the facts which constitute such negligence further than that the railway platform was not well lighted; but the inference is sought to be drawn from the terms of the lease that it was the duty of the company to cause the leased premises to be kept in safe condition.

The plaintiff had come to the company's depot, in the night, to take passage on the expected train, and, while waiting, entered the restaurant. It is further alleged that it was necessary for persons coming to take the train to use the platform erected by Ginocchio as well as that erected by the company, but there is not evidence that this was so.

It is alleged that, after the lease was made, Ginocchio, in accordance with specifications furnished by the company, built a good and substantial house, in which he kept a first-class hotel and restaurant, which was intended by the company, and was used by Ginocchio, "as an accommodation and convenience to the traveling public, and especially to the passengers of said company who were soon to take passage on, or had just departed from, the trains of said company at said city of Fort Worth; that the traveling public, and particularly the passengers of said company, commonly and frequently resorted to said restaurant, eating-house, and hotel at and before and subsequent to said December 5, 1883, which fact was well known to said Ginocchio and to said company, its agents and servants; that the object and design of said railway company in leasing said land to said Ginocchio, to have said building erected thereon as aforesaid, was to make the use of said building for the purposes mentioned a valuable auxiliary to its business as a common carrier of freights and passengers, and the purpose of said Ginocchio was his private gain; and by the use of said building for the purposes mentioned the object of both parties has been effected." Ginocchio was alleged to be a resident of Harrison county, Texas, and the railway company to have its road and an agency in Tarrant county. Ginocchio filed a sworn plea in abatement, in which he set up the continuous residence of himself in Harrison county; and, further, that the railway company had no interest whatever in the business conducted by him on the ground which he had leased from it, but "that he leased the ground upon which the building is erected, and was erected at the time plaintiff claims to have received his injuries, in which said building said lunch-stand, eating-house, and drinking saloon was then and is now kept, from the said railroad company, for the purpose of carrying on said business for his own benefit, and not for the benefit and profit of said railway company, and that said railway company has no interest in or concern in the same, except to collect the rent for said ground as aforesaid." The...