64 Tex. 427 | Tex. | 1885
The first assignment of error is that the court erred in giving the first special charge asked by the plaintiff, because there were no pleadings to warrant the charge, and because it was calculated to mislead the jury by submitting to them other issues than those made by the pleadings.
“ If you believe, from the evidence, that it was necessary for B. S. Hampton, in the discharge of his duty, to project his head from the car at Kosse station, but that he put his head out before it was actually necessary, on account of the distance of the train from the passenger platform, this would not prevent the plaintiff from recovering if otherwise entitled, — if you believe that the acts of defendant’s servants in charge of the train were such as would reasonably induce the said Hampton, situated as he was, to believe that he was at the usual place for ejecting his head in performance of his duty.”
Whether it was necessary for the mail agent to put his head out of the car upon approaching the various stations the witnesses were not agreed. Some of them said it was necessary; others that it was not; but almost all of them agreed that it was generally done. But in this case Hampton was killed at the north end of the switch, which is about four hundred yards north of the station. Hence appellant insists that there could be no necessity for him to look out or put his head out of the car at that place. Admitting this to be true, for the sake of the argument, the question put to the jury by the charge was, whether Hampton believed it to be necessary, and was led to believe so by the conduct of the defendant’s servants. We will state some of the facts in connection with this charge.
On the night before Hampton’s death, some freight cars had been left upon the switch, but so close to the main track that, some of the witnesses testify, the train could not pass without rubbing against them. They say that the marks on the passenger cars plainly showed that they had rubbed against the box cars in passing them. The conductor says that he passed the box cars without touching them, but that when he attempted to back his train he could not pass them, and had to remove them.
The engineer says that on reaching the proper place he sounded his whistle for the station. This was some distance from the switch. Hot far from the switch he again sounded his whistle on seeing some stock near the track. The other witnesses do not agree with the engineer in this part of the evidence. They say that the whistle sounded for the station; the train slacked its speed, then started again. Shortly after this he saw the box cars, and “slowed up” to see whether he could pass them. Appellees maintain that this conduct misled the mail agent, and induced him to believe that they were approaching the platform. The witnesses testify that the “slowing up” after the sounding of the whistle indicates the approach to the platform. It was a very cold morning, say the witnesses, and
The witnesses testify that the agent is kept very busy just before reaching Iiosse, because he has quite a large number of packages to prepare for distribution near that place. Ho one was in the car with Hampton at the time of his death; but from all the evidence, direct and circumstantial, our opinion is that the court did not err in submitting the charge complained of. T. P. R. R. Co. v. Garcia, 4 Law Rev., 342.
The next question of importance is whether the court erred in refusing the first special charge asked by the defendant, as follows:
“If you believe from the evidence that plaintiff’s husband, Ben. S. Hampton, was, at the time he received the injuries resulting in his death, employed upon defendant’s train as mail clerk in the service of the United States, then by accepting such employment he assumed all the risks ordinarily incident thereto, and defendant would not be under the same obligations to him as if he had been a passenger on its train; and if you further believe that the death of said Hampton was caused by the negligence of any of defendant’s servants, engaged in operating any of its trains, defendant would not be liable therefor, and you will find for defendant.”
This charge places the mail agent in the same position as an employee of the railway company; and in that event the other employees on this train would be his fellow-servants. In Pennsylvania these mail'agents are placed upon the footing of employees; but this is by virtue of an act of thq legislature of that state. The case of Railroad Co. v. Price, 96 Pa. St., 256, is directly in point.
In that case the mail agent on the train was killed by a collision, and the suit was brought by his widow. It was held that she could not recover. The court, however, rests its decision upon the statute. The court say: “ The effect of the act of congress is to make his position on the car a lawful one. Being lawfully on the train, a recovery might possibly have been had for his death upon the duty to carry safely. Collett v. Railway Co., 16 Q. B., 984, and Holton v. Western R. R. Co., 15 N. Y., 444, go to this extent. But here the act of 1868 comes in and declares that persons employed upon the road shall have only the rights of employees of the company.” The
In the subsequent case of Seybolt v. R. R. Co., 95 N. Y., 562, it was held that a railroad corporation owes the same degree of care to mail agents riding in postal cars in charge of the mails as they do to other passengers.
The court, in commenting upon the case of Price, quoted above, use this language:
“ The opinion in the case of R. R. Co. v. Price not only does not conflict with the doctrine of these cases, but cites with approval the Bolton case. The question in that case was upon the construction to be given to to the word passenger as used in the act of April 4, 1868, of the laws of Pennsylvania, and it was held, from the act, that the legislature intended to exclude postal agents from the class therein designated as passengers. . . .”
Whatever may be the precise status of a postal clerk on a railroad train, we think it may be fairly concluded that he would be entitled to recover of the company for injuries resulting from the negligence of its employees.
Our opinion is that the judgment should be affirmed.
Affirmed.-
[Opinion adopted June 19, 1885.]
