Texas & P. Ry. Co. v. Mother

• Decision Date: 29 November 1893
• Citation: 24 S.W. 79
• Court: Texas Court of Appeals
• Parties: TEXAS & P. RY. CO. v. MOTHER et al.

24 S.W. 79

TEXAS & P. RY. CO. v. MOTHER et al.

Court of Civil Appeals of Texas.

November 29, 1893.

Appeal from district court, Denton county; D. E. Barrett, Judge.

Action by Mary C. Mother and another against the Texas & Pacific Railway Company for the death of plaintiffs' intestate. From a judgment in plaintiffs' favor, defendant appeals.

The other facts fully appear in the following statement by HEAD, J.:

On June 29, 1890, Joseph C. Mother, a youth about 17 years of age, was a trespasser upon one of defendant's freight trains, attempting to ride thereon without paying his fare, by concealing himself in one of the cars, in known violation of the rules of the company. At Pilot Point, one of the brakemen on said train, in the employ of defendant, by abusive and threatening language and gestures, caused Mother to attempt to leave the car he was in, while in motion, by crawling through a small window, called a "cuddy hole," in the end thereof, near the top, in doing which, he fell, and was run over by the car, and killed. The brakeman had no express authority, either from the company or the conductor in charge of the train, to put trespassers off the cars if they refused to obey his orders; but the evidence is sufficient to sustain the finding that it was within the scope of his authority to order them off, and if they refused to obey he should report to the conductor, who would use the necessary force. Appellees prosecute this suit to recover damages sustained by them, as parents of said Mother, by his death, caused as above set forth, and in the court below were given judgment for $2,700, from which this appeal is taken.

R. C. Foster and A. E. Wilkinson, for appellant. A. C. Owsley, W. O. Davis, and J. L. Harris, for appellees.

HEAD, J.

It has been several times decided in this state that the court has no right to charge the jury that a brakeman has either express or implied authority to eject trespassers from the train upon which he is employed; this being, prima facie, the business of the conductor. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039; Railway Co. v. Armstrong, 23 S. W. 236. It has not, however, been intimated that the company could not, as a matter of fact, confer this authority upon its brakeman, should it see proper to do so. If, then, one wrongfully thereon be injured by being improperly expelled from the cars by a brakeman, and seeks to hold the company liable therefor, it devolves upon him to show that the acts of the brakeman were within the scope of the authority in fact conferred upon him. Railway Co. v. Kirkbride, 79 Tex. 457, 15 S. W. 495. As to what will be sufficient evidence of such authority, and its extent, no definite rule can be prescribed, and each case must depend upon its own facts. Mr. Wood, in his work on the Law of Master and Servant, (page 584,) says: "While the nature of the employment, and the means and methods usually employed in its prosecution, are legitimate subjects to consider in determining whether an act of the servant is within the scope of his employment, yet they are by no means decisive; and an act that is unusual, extraordinary, uncommon, entirely novel, even, may as equally be within the range of his implied authority as the former. No decisive test can be given, but in all cases the act must have been done while in the prosecution of some business for the master, and that business must have been such as the servant had authority from the master to do; that is, he must have been authorized, either expressly or impliedly, to do the act in some manner, which he has improperly or wrongfully performed, and the fact that he was only authorized to do the act in a certain way does not save the master from liability. If he was authorized to do the act at all, the master is liable for the consequences of his doing it in a different manner, if the mode adopted by him is so far incident to the employment that it comes within its scope; for, having given the servant any authority in the premises, he alone must suffer for its abuse. He has set the wrong in motion, and must abide the consequences, as against innocent parties. In all cases the question as to whether the act was authorized is one for the jury, in view of all the circumstances, and unless there is an entire absence of authority, the master will be held chargeable. The question is whether there is any authority at all." Also, see Pierce, R. R. 277; Echols v. Dodd, 20 Tex. 191.

In this case no actual violence was used by the brakeman, in compelling young Mother to leave the car, but the latter yielded to abusive language, threatening gestures, and threats of arrest upon arrival in Ft. Worth; and, if it be conceded that this is sufficient to render appellant liable, the question will be, not whether the brakeman had authority to use physical force in expelling trespassers from the cars, but did he have authority to use words? That is, was it within the scope of his authority to order trespassers from the train about which he was employed? If so, appellant must be held liable for the terms in which the order is given. That words of the kind used in this instance are sufficient seems to be settled by the Kirkbride Case, cited above from 79 Tex. and 15 S. W. The question then recurs, did the brakeman in question have express or implied authority to order trespassers from appellant's cars? The conductor in charge of this train, as a witness for appellant, testified: "The Texas & Pacific Railway Company had given no orders nor authority to its brakemen to eject trespassers from its cars or trains. It is common for brakemen, finding trespassers on the train, to tell them to get off; but they have no orders to put them off, nor is it any part of their duty to put them off if they refuse to go. The brakeman's duty, if a trespasser refuses to go, would be to report the matter to the conductor, so that he might take the proper action in regard to ejecting him." The brakeman who gave the orders in this case, also a witness for appellant, testified: "It is usual for brakemen to put trespassers off the train, when they find them there. It is customary for them to do so, on every railroad I ever worked on. It is a general practice among railroad brakemen to put trespassers off the trains. I considered that I was discharging my duty to the railway company, in ordering the boys off the train." As stated in the findings of fact, no express authority was shown from the company to its brakemen in the premises, but no witness was introduced to show that it was not fully aware of the common practice for them to give these orders, nor was the testimony of these witnesses in any manner contradicted or called in question. Under the circumstances, we think the...