60 Tex. 180 | Tex. | 1883
We have examined the record in this case with more than usual care. While the charge of the court, in the main, presents the issues between the parties very clearly and fairly, yet in some respects it was liable to objection, and its language may possibly have unduly influenced the jury in passing upon the facts in evidence before them.
In the pleadings the plaintiff in error alleged and introduced some evidence in support of the averment that the defendant in error agreed to stop its train at its section-house, one-fourth of a mile west from Jacksonville, and that when that point was reached, it refused or declined to stop its train there, but on the contrary carried the deceased and the plaintiff a short distance further, to the town of Jacksonville, before stopping its train. On this subject the court charged the jury as follows: “ Under the allegations and proof it is
We think, under the state of the pleadings and evidence in this case, that this was perhaps stating the matter somewhat too strongly against the plaintiff in error and her infant child. It seems, also, to be perhaps to some extent a charge upon the weight of evidence, or at least was calculated to create that impression on the minds of the jury. It was not proper, under the evidence, to wholly withdraw the consideration of that matter from the jury.
We think, also, under the facts of this case, that the court laid down the law in rather too strong and unqualified terms, when it informed the jury that as soon as the deceased “ alighted in safety from the car or caboose in which he and his wife (the plaintiff) were carried, then the relation of passenger ceased, and from that time the defendants owed them no duty as passengers,” etc., etc., and more to the same effect. The evidence showed that the deceased was received as a passenger on the defendants’ train, and that his wife, infant child and nurse, who were under his charge, were also so received as passengers. The proof also discloses the fact that the defendants’ servants, without objection, received from him, at the same time, as baggage to be by them transported, a considerable number of bulky articles of furniture, bedding and clothing, which they agreed and bound themselves to deliver to him at his point of destination. It does not appear that for this considerable amount of baggage, consisting of a number of articles, that the defendants gave him any check, receipt or any kind of evidence or token of their possession of it. Under all the circumstances disclosed in evidence, when we consider the nature and quantity of the baggage and the absence of any baggage checks or receipt to the deceased, we think he, as such passenger, had a right to go to the baggage car for the purpose of identifying and claiming his property and receiving it from the employees of defendants, and if he did no more than simply aid and assist the defendant’s employees in identifying and removing his own baggage from the car to the platform, that the court stated the laxv too strongly against plaintiff xvhen it informed the jury that these acts of his, in relation to his oxvn baggage, constituted him afelloxv-servant with the employees of defendants. We think, under the special facts of this case, as disclosed in the record, that the relation of carrier and passenger had not entirely ceased, for all purposes, to exist, and that the deceased had the right, under the facts of this case, to look after his baggage, and that by so doing,
Under all the circumstances we are of the opinion that the judgment should be reversed and the cause remanded for a new trial. It is therefore so ordered.
Reversed and remanded.
[Opinion delivered October 19, 1883.]