165 S.W. 1 | Tex. App. | 1914
This is a suit for damages arising from injuries inflicted by a gunshot wound on Eliza Bell while a passenger on a train of appellant instituted by Eliza Bell, joined by her husband, Billie Bell, against appellant. It was alleged by appellees that one Louis Willis was permitted in the car in which Eliza Bell was riding while he was in a drunken condition, and that he provoked a difficulty with one Banks, during which the said Louis Willis was killed, and Eliza Bell shot through one of her legs. The cause was tried by jury, and resulted in a verdict and judgment for appellees in the sum of $1,500.
The facts show that while in an intoxicated condition Louis Willis, a negro, at Marion, Tex., entered a car reserved for negroes, and in which Eliza Bell was riding, on her way from Seguin to San Antonio, and acted in such way as to become very offensive to a young woman with whom one Willie Banks was traveling, and the latter requested Willis to desist; but he seated himself upon the arm of her seat, and used profane language to her, and sat in her lap. Banks informed the conductor of the conduct of Willis, and he went to him and told him to desist. After the conductor passed, he began his offensive conduct again, and the conductor was called on again. He led Willis to a point in the car near where Banks was standing, and there left him and went out. As soon as he left Willis began a quarrel with Banks, and approached him in an angry and threatening manner. Banks backed to the end of the car, and while Willis was approaching he (Banks) fired three shots, two of which entered the body of Willis, and the other went wild and struck Eliza Bell in the leg, seriously and permanently injuring her. Willis was the aggressor, and forced the necessity of shooting upon Banks, who was much smaller than Willis.
The petition was not subject to a general *2
demurrer or the special exceptions. The wound received by Eliza Bell was the direct and proximate result of a difficulty that was raised by a drunken passenger who had been negligently permitted to remain in a crowded car where he had been engaged in profanity and other outrageous conduct towards a female passenger. The shot from the pistol of Banks was as much the result of the drunkenness of Willis as though it had been fired by Willis himself. Appellant should have anticipated that the drunken man, who had persisted in insulting the young woman, and who knew that Banks had invoked the aid of the conductor to restrain him, would raise a difficulty, and that fighting would probably occur, and might result in injury to a passenger. It was, not necessary that appellant should or could have foreseen the occurrence as it really happened. "If a drunken and disorderly man is on the carrier's vehicle, it will not do to say, after a passenger has been subjected to insult or injury, that the carrier's servants did not know or could not have foreseen that the particular individual who was insulted or injured was in danger of such insult or injury, if they were apprised, or with proper care could have known of circumstances which indicated that some one would be injured, unless the disorderly passenger or stranger were ejected or controlled." Hutchinson, Carr. § 984; Railway v. McEwan (Ky.)
The fourth assignment of error is overruled. The rejected charge was substantially given by the court in another special charge requested by appellant, as well as in the main charge, and there is no ground for complaint.
There was no evidence tending to show that Banks was not justified in shooting Willis; but all the evidence tended to show a clear case of self-defense, and the court very properly refused to inject the question of the justification of Banks in shooting into the case. Banks swore that Willis started an altercation, applied a vile epithet to him, and said he was going to kill Banks. Placing his hand as though to draw a pistol, Willis advanced upon Banks, striking at him as he retreated. Banks was never indicted for killing Willis. The fifth assignment of error is overruled, and the sixth assignment of error is disposed of by our conclusions of fact, and what has been written in connection with the first, second, and third assignments. In this connection it may be stated that the act of the conductor in dragging the drunken negro along the car until he reached the point where the man was standing who had sought to have him removed from the car had the appearance of an invitation to a conflict between them, and was rank negligence. Not only the conductor, but the negro porter, abandoned the car, and turned it over to the drunken negro. The conductor took the negro only a few feet from his position, sitting almost on top of the woman, and, when he refused to go farther, left the scene, seemingly intimidated by him. The connection between the drunkenness and boisterous, rude, and insulting conduct and the firing of the shots and consequent injury to Eliza Bell was unbroken. The conductor, not only should have anticipated trouble, but evidently did, and sought other quarters on the train in order to escape it, as did the porter apparently.
The judgment is affirmed.
In the case of Flint v. Norwich Tr. Co.,
Where fighting took place in a railroad car, without interference by the conductor, and a passenger not involved in the difficulty had an eye injured by a missile, the court said: "The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or, if so permitted, should have been so guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls." Railroad Co. v. Pillow,
In the case of Railway v. McEwan (Ky.)
So in the case of Railway v. Flake,
There is no merit in the contention that appellant would be liable if the drunken passenger had fired the shot, but is not liable for injury accidentally inflicted by a passenger while defending himself against an assault by the drunken man.
The motion for rehearing is overruled.