Texas & P. Ry. Co. v. Baker

• Decision Date: 05 November 1919
• Docket Number: (No. 2926.)
• Citation: 215 S.W. 556
• Parties: TEXAS & P. RY. CO. v. BAKER.
• Court: Texas Supreme Court

Page 556

215 S.W. 556

TEXAS & P. RY. CO. v. BAKER.

(No. 2926.)

Commission of Appeals of Texas, Section A.

November 5, 1919.

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

Action by Archie Baker against the Texas & Pacific Railway Company. From a judgment of the Court of Civil Appeals (184 S. W. 664) affirming a judgment in favor of plaintiff, the defendant brings error. Reversed and remanded.

See, also, 158 S. W. 263.

George Thompson, of Ft. Worth, and Head, Dillard, Smith, Maxey & Head, of Sherman, for plaintiff in error.

Chambers & Black, of Clarksville, for defendant in error.

SONFIELD, P. J.

Action in damages by defendant in error for personal injuries sustained by his wife through the negligence of plaintiff in error. Trial to a jury resulted in a verdict and judgment in favor of defendant in error, which on appeal was affirmed by the Court of Civil Appeals. 184 S. W. 664.

Defendant in error's wife, a negress, while a passenger occupying a seat in the coach assigned to negroes on one of plaintiff in error's passenger trains, was assaulted and severely injured by one Melton, a white passenger, then in the coach assigned to negroes.

Defendant in error alleged as one of the grounds upon which recovery was sought that plaintiff in error was negligent in permitting Melton, a white man, to ride in the coach assigned to negroes in violation of law; that it was the duty of the conductor of plaintiff in error to remove Melton from the coach, which he failed to do, although he knew, or by the exercise of that degree of care required by law could have known, of his presence in said coach.

On the trial of the case the court instructed the jury, in part, as follows:

"If you believe from the evidence that plaintiff's wife, while she was a passenger on one of defendant's passenger trains at the time and place alleged in plaintiff's petition, was assaulted by a fellow passenger and injured as substantially set out in plaintiff's petition, and if you further believe that such assault was committed by a white passenger which defendant, its agents and servants, knew, or in the exercise of that high degree of care required by law might have known, was in the coach assigned to negroes, then, if you so find, you will find a verdict for the plaintiff and assess his damages in accordance with instructions hereinafter given you, unless you find for the defendant upon subsequent instructions contained in this charge.

"(4) On the other hand, if you find from the evidence that the defendant, its agents and employes, did not know of the presence of such white passengers in the coach assigned to negroes, and that by the exercise of the high degree of care required by law they could not know it, then you will return a verdict for the defendant."

Plaintiff in error complains that the instruction makes a violation of the separate coach law, as applied to a case of this character, negligence per se, and the proximate cause of the injuries of defendant in error's wife, without reference to whether or not plaintiff in error could have anticipated and prevented the assault; that the charge is based on the separate coach act, which is without application in this case, but, if applicable, the instruction places a greater burden on plaintiff in error than is warranted by the act.

Under what is known as the "Separate Coach Act," it is made the duty of railroad companies, under penalty, to provide separate coaches or compartments for the accommodation of white and negro passengers. The act imposes a penalty upon a passenger riding in any coach not designated for his race, after having been forbidden to do so by the conductor.

Section 9 of the original act, Acts 22d Legislature, p. 44, reads as follows:

"Conductors of passenger trains provided with separate coaches shall have the authority to refuse any passenger admittance to any coach in which he is not entitled to ride under the provisions of this act, and the conductor in charge of the train shall have the authority, and it shall be his duty to remove from a coach any passenger not entitled to ride therein under the provisions of this act. And upon his failure or refusal to do so, shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five, and not more than twenty-five dollars."

Section 9 of the Amendatory Act, Acts 30th Legislature, p. 58, with reference to railroads, in force now and at the date of the trial, reads as follows:

"Conductors of passenger trains * * * provided with separate coaches shall have the authority to refuse any passenger admittance to any coach or compartment in which they are not entitled to ride under the provisions of this law, and the conductor in charge of the train * * * shall have authority, and it shall be his duty, to remove from a coach * * * any passenger not entitled to ride therein under the provisions of this act, and upon his refusal to do so knowingly shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five or more than twenty-five dollars."

We cannot agree with plaintiff in error that the act is without application in this case, nor do we find ourselves in agreement with the majority of the Court of Civil Appeals in the construction of the act.

Under the common law the carrier is bound to exercise the established degree of care to guard its passengers against assaults and other unlawful acts of fellow passengers. Knowledge of the existence of the danger, or of facts or circumstances from which danger may be reasonably anticipated, is necessary to fix liability; because, unless and until there is this knowledge, the duty to exercise the requisite degree of care does not arise.

The act under consideration was intended for the protection of passengers, white and negro alike. The Legislature deemed the segregation and separation of the races necessary in order to the prevention of conditions likely to provoke unlawful acts. It can hardly be doubted that the statute rests upon "the necessity for the preservation of order and decorum and to prevent contact and collision arising from natural and well known repugnances." Note 11 L. R. A. (N. S.) 268; Quinn v. Ry., 98 Ky. 231, 32 S. W. 743.

A duty being imposed by statute, a breach thereof, resulting in an injury, of the character which the statute sought to prevent, to one for whose advantage it was enacted, itself constitutes negligence without reference to the degree of care exercised, or of reasonable anticipation of an injury. The performance of the duty does not depend upon, nor is it controlled by, surrounding circumstances. One breaching a statutory duty cannot be heard to say...