Gulf, C. & S. F. Ry. Co. v. Green ( 1911 )

RICE, J.

This suit was instituted to recover damages for the alleged wrongful ejectment of appellee Sanford Green from the ears by appellant’s conductor, it being charged that he was carried by his station in the nighttime and ejected at a lonely place, and as a result thereof sustained serious and permanent Injuries. Appellant answered by general and special exceptions, and, further, that the station of Cameron, which was the destination of the boy Sanford Green, was announced in the car in which he was riding just before the train reached that station, at which time the boy was asleep and failed to alight, owing to the fact that he was asleep; that he was ejected at a convenient place; and that the employes of the company, in so ejecting him, had no notice that he would suffer injury thereby. There was a jury trial, resulting in a verdict and judgment for plaintiff, from which appellant prosecutes this appeal.

It appears from the evidence that on the 13th of October, 1909, plaintiff’s father purchased a ticket at Featherstone, Okl., for plaintiff, who was then a boy 13 or 14 years of age, for Cameron, Tex., and thereafter placed him on board of the cars for his destination. The train upon which he was riding arrived at Cameron some time after 2 o’clock on the morning of the 14th of October, at which time the boy was asleep, and did not hear the announcement of the name of the station which it is claimed was made by appellant’s employe, and for which reason, it is presumed, he was carried beyond said station. After passing the station some 2yz miles, the conductor aroused and compelled the boy to alight from the train, telling him before he left the train that he had reached his station, and that the depot was only a short way back, but, after he had alighted from the car, he stated to him that it was some mile or such distance up the track, and immediately started the train, leaving the boy on the ground. The boy was not awakened at Cameron by the conductor or porter, and it appears that his hat check, indicating his destination, had not been taken up by the conductor. There was no demand on the part of the conductor that he should pay his fare to the next station, nor was anything said about it at the time he was ejected; but the boy testified that he would have been willing to pay his fare, if he had known that he was not at a station when he was put off. He was ejected in Little River bottom, about 2% miles from Cameron. The night was very dark, and it is not shown that he was near any house. The boy was a stranger, never having been in the state. The evidence shows that this bottom was spanned by a long trestle and bridge, and that the boy undertook at once, as directed by the conductor, to go to the depot, encountering this trestle or bridge, which he undertook to cross by “cooning” it, and while so doing a rapidly approaching train from the south ran onto the trestle, whereby the boy was greatly frightened, though he escaped unhurt, reaching the opposite side of the bridge before the train passed. It is abundantly shown by the testimony that from this fright he experienced a great nervous shock, by reason of which his mind was affected, and he was unable to sleep or rest at night on account of nightmares and dreams, from which, when aroused, he would scream that the train was running over him. This condition was shown to have continued for a long-while, and physicians testified that they were unable to say how long he might remain in this condition.

The chief contention on the part of appellant is that the court erred in refusing to grant a new trial on the ground that the evidence failed to sustain the judgment.

[1] The only issue submitted for the consideration of the jury by the charge of the court was whether or not the appellant was guilty of negligence in compelling the boy to disembark from the train at the time and place under the circumstances indicated, telling the jury that he, after leaving Cameron, had ceased to be a passenger, and if they believed that the company was guilty of negligence in causing him to disembark, and that the same was the direct and proximate cause of his leaving the car and being injured, then to find for the plaintiff. It is the contention of appellant that it was not its duty to awaken appellee, but was only required to announce the station before reaching Cameron, and to stop a sufficient length of time to allow passengers to disembark from the train, all of which it did, whereby appellee, on account of his failure to leave the train at Cameron, became a trespasser, and it had the unrestricted right to compel him to leave the train at any point after passing Cameron without being liable therefor. Counsel for appellant has cited us to cases announcing the doctrine that it is not the duty of a railway company under such circumstances to awaken a sleeping passenger, and that it is not required, without payment of additional fare, to carry the passenger to the next station, and also to cases which establish the doctrine that the company under such circumstances would not ordinarily be liable in damages for the expulsion of a passenger between stations. But, while this we concede to he the true rule, yet it is not without limitation or exception. We think that, notwithstanding the right thus to expel a traveler who has been carried beyond his destination on account of his own fault, still the railroad company rests under the duty of not putting him off at an unsafe, insecure, or dangerous place, which might jeopardize the health or likely injure the life of the passenger. In several of the states statutes have been enacted forbidding railway companies from ejecting passengers between stations, but requiring them to proceed to the usual and customary stopping point before doing so. See note to Burch v. Baltimore & Potomac R. R., 26 L. R. A. 129, for a collation of such statutes and decisions thereunder.

[2] There was formerly such a statute in Texas (Paschal’s Dig. art. 4892), but this provision was omitted in the revision of the statutes and has not been re-enacted, and is therefore no longer a law in this state. See, also, T. & P. Ry. Co. v. Casey, 52 Tex. 112. And, in states where there is such a statute, recoveries have been allowed where passengers were put off between stations,- irrespective of the manner of their ejectment, or the character of the place at which they were expelled; but, in the absence of such statutory provision, it seems that the company is only liable in the event that such expulsion is accompanied by unnecessary force or violence, or the ejectment was made at an improper place, such as would jeopardize the life or health of the passenger, and injury was proximately caused therefrom. See note to Burch v. B. & P. Ry. Co., supra; the question of liability being one of fact for the jury, under all the circumstances of the case. T. & P. R. R. Co. v. McDonald, 2 Willson Civ. Cas Ct. App. § 164; I. & G. N. R. R. Co. v. Gilbert, 64 Tex. 536; International & G. N. R Co. v. Smith (Sup.) 1 S. W. 565 (Oct. 19 1886); Malone v. Pittsburg & L. F R. R. 152 Pa. 393, 25 Atl. 638; Hall v. S. C R. R Co., 28 S. C. 261, 5 S. E. 623; Ill. Cent. R R. v. Latimer, 28 Ill. App. 552. In Burch v. Baltimore & Potomac R. R., supra, it wav said, in discussing the right of the company to eject a person wrongfully upon its train - “It may not eject him with undue violence. It may not eject him at an unsafe or dangerous place, upon a trestlework, for example, or in a marsh or in a desert, or upon a bank of snow. Then again, when such trespasser is a person more or less incapable of taking care of himself — a child, a lunatic, an imbecile, a person under the influence of intoxicating liquor — consideration of humanity will demand that they receive different treatment from that awarded to the ordinary adult man, in full possession of all of his faculties, as was the plaintiff in this case.” See Louisville, C. & L. R. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186. In Moore on Carriers, § 11, p. 749, where this question is discussed, it is said: “In the absence of a statute providing at what places the carrier may lawfully eject persons from its cars or trains, the passenger who has forfeited his right to travel may he ejected at any point where he will not be subjected to or reasonably liable to peril; but he may not be ejected at any place on the road where he is likely to be injured, such as in a pond of water, on a high trestle or in a dangerous swamp or other place of danger. Where a passenger is carried beyond his station through no fault of his own, he may not be arbitrarily and violently put off where there is no dwelling and remote from any station; and, if he is put off under such circumstances, he may recover substantial damages. The question as to whether the place where the passenger was ejected was a proper place or an improper one in such cases has been usually held to be one of fact for the jury, under the circumstances of each case” —citing numerous authorities in support of the text. See, likewise, 6 Cyc. 563, where it is said: “The servants of the carrier should not expel a passenger (or even a trespasser) at a time or place which is dangerous; and the carrier will be liable in such case, not only for injuries directly suffered in connection with such expulsion, but also for subsequent injuries proximately due thereto, such as injury from other trains, which the ejected person could not reasonably avoid, the probable consequences of improper exposure, and the like. And it will be no answer that the person was injured by reason of his helplessness due to intoxication, or like cause, if his condition was known to the servant of the carrier, and the consequent injury resulting from the expulsion could have been reasonably anticipated.”

[3] So that it seems the question is one of fact for the determination of the jury under a proper charge as to whether, under all the circumstances, the expulsion in the present case was rightful or not. This question has been resolved by the jury in favor of the appellee and against the appellant, and we think the evidence abundantly justifies such finding, for which reason the several assignments presenting this question are overruled.

[4] The third assignment insists that a new trial should have been granted, for the reason that appellant was not responsible for the injuries which occurred to the boy after leaving the train and on his way to Cameron. The rule seems to be well settled that the company would be responsible for all injuries proximately resulting from their wrongful act in ejecting a passenger under such circumstances which could have been reasonably anticipated, and, if in attempting to reach his station the boy encountered dangers from a passing train, it seems to us that the company would be liable therefor, provided the jury should believe that such dangers could have reasonably been anticipated to ensue from the wrongful conduct. 6 Cyc. 563; I. & G. N. R. R. v. Terry, 62 Tex. 380, 50 Am. Rep. 529.

[5] Three special charges asked by appellant, made the basis of the fourth, fifth, and seventh assignments of error, were refused, each of which was predicated upon the theory that if the company made the usual announcement of the station in a manner loud enough to be heard by the passengers, and that they stopped a reasonable length of time at Cameron for passengers to alight, and that plaintiff failed to alight therefrom on account of being asleep and was carried beyond the station, then he became a trespasser, and the company had the right to eject him, and it was the duty of the jury to find, under such circumstances, in favor of the defendant. These charges were properly refused, because they required a finding in favor of the defendant, irrespective of whether it was guilty of negligence in ejecting the plaintiff at an improper place, and because the same failed to submit the question of negligence vel non to the jury.

[6] There was no error in refusing special charge No. 4, which directed a finding in favor of the defendant if the jury believed that the plaintiff was expelled on account of his failure to pay his fare to the next station, provided the conductor had no reason to believe that putting him off at the particular place would result in injury. In the first place, there was no evidence that raised any issue whatever relative to the payment of fare; and, besides this, the conductor, upon the nonpayment of fare, is not authorized to expel a trespasser at an improper place, and he would have the right to recover if he had been put off at such improper place, notwithstanding the conductor had no reason to believe that the place at which he was ejected was an improper place, if in fact it was such.

[7] Nor do we think that the court erred in refusing special charge No. 6, which instructed the jury, in effect, that it would have been unlawful under the circumstances for the company, in the absence of payment of fare on the part of plaintiff, to carry him to the next station, as it is contended that to do so would contravene the anti-free pass law (Acts of the 30th Leg. c. 42, p. 93), citing in support of its contention Trinity & B. V. R. R. Co. v. Carpenter, 132 S. W. 837. We do not believe this act was intended to prevent railway companies under such circumstances as shown by this record from carrying a passenger free to the next station. To have refused, it seems to us, would have been contrary at least to the spirit of said act. In the case last cited, which was an action brought against the company for rudely threatening to expel plaintiff’s wife from the cars, unless she paid fare for her child, which was over five years of age, but who, it seems had taken the child aboard under the belief that it had the right to ride free, it was held that it was improper to refuse a charge, in effect telling the jury that the conductor had the right to state to plaintiff’s wife that it was unlawful for him to carry the child without the payment of fare, provided that in so doing no rude or insulting language was used towards her. Certainly that case is not authority for the contention made here. The spirit of the statute would not have been violated by carrying the boy free to the next station, even if its letter could be held to uphold the conduct on the part of the conductor, which we very much doubt. In Waldstein v. State, 29 Tex. App. 82, 14 S. W. 394, where a saloon keeper was prosecuted for unlawfully selling liquor to a minor, it was held that the spirit of the law was not violated where it was shown that the minor falsely represented to the defendant that his father had sent him in a hurry to get whisky for his sick mother; the court holding that whenever a thing done is not within the mischief evidently intended by the statute, though within its words, the deed is not punishable, citing in illustration a technical violation of the ancient law which provided that whoever drew blood in the street should be punished. This statute was construed as not being applicable to a surgeon who opened the veins of a person who fell down in the street in a fit.

[8] The thirteenth and fourteenth' assignments complain of the argument of counsel on behalf of appellee, who was allowed 'to read to the jury certain of appellant’s exceptions, and to comment thereon in connection with the testimony of the conductor, as well as certain other testimony in the case. These exceptions were couched in a humorous vein, and seemingly were intended to make light of plaintiff’s case. The conductor had testified that he did not remember having ejected plaintiff from the train. Counsel for appellee in commenting on the testimony of the conductor said that he did not blame him for failing to remember that he had put the boy off the car, and then took up and read said special exceptions, and, commenting thereon, said: “That is the way the company feels about this thing. It is immaterial that you take a young farmer boy, and carry him out here, and wreck his mind and memory, and destroy his usefulness for life, it is a matter that the attorney for the corporation makes sport of and light of, to laugh it out of court.” Counsel, continuing, said: “A railroad owes a care to its passengers, and it owes to its passengers the highest degree of care, but it does not owe to every passenger the same degree of care. It is not true that you owe to me the same degree of care that you owe to a little child. The child fell off to sleep. They knew he was on the train. They took his ticket up. They knew he was a child. His physical appearance showed that. They knew he was alone, because they got his ticket from him, and they were charged with the duty to bring that boy safely to Cameron, and to afford him an opportunity to alight safely from that train, and that very duty itself which the law imposed upon them includes with it, under the circumstances in this case, the duty to wake him up at that station, and give him an opportunity to alight. It would not do it to me or you. It would not be included in the railroad’s duty to me or to you.” These last remarks were objected to on the ground that they were not a correct statement of the obligation of the defendant to the plaintiff, and that the company owed him no such duty as contended for in said argument. While we are not prepared to say that it was proper practice for counsel to read appellant’s exceptions to the jury, and while we do not hold that his statement of the law as applied to the duty of the defendant was correct, still we have been cited to no case where it has been held that the mere reading to the jury of the exceptions of the adverse party and commenting thereon was reversible error. Nor do we think that simply because counsel in their zeal may have made a misstatement of the law of the case should be held ground for reversal. No complaint is made here that the verdict is excessive, nor does it seem that the language used was calculated to arouse the prejudices of the jury against the defendant. It is held in I. & G. N. R. R. Co. v. Irvin, 64 Tex. 535, that the use of improper language in course of argument by adverse counsel, within itself furnished no sufficient reason for reversing a judgment, and it is only in cases in which the preponderance of the evidence seems to be against the verdict, and in eases in which the verdict seems to be excessive, and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal, for which reasons we overrule these assignments.

The remaining assignments have been duly considered, and are regarded without merit.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.