53 Tex. Civ. App. 12 | Tex. App. | 1908
On November 21, 1905, W. I. Robinson, as a passenger on one of appellant’s trains, was traveling from Paris to Hugo, I. T., distant from Paris about twenty-five miles. At or near Lenoir, a station on appellant’s line of railway about ten miles from Paris, in some way not shown by the evidence, he was thrown or fell from the train on which he was traveling and killed—instantly, it appears. The suit was by appellees, his widow and children, to recover damages suffered by them on account of his death.
As grounds for the recovery sought appellees alleged in their petition that when Robinson got aboard appellant’s train at Paris to go to Hugo he was “in such a state of intoxication as to be incapable of protecting himself against the dangers ordinarily incident to railroad travel;” that appellant, Imowing his condition, permitted him to board its train and afterwards negligently failed to give him “proper care and attention, and permitted him to walk about the cars and out onto the platform while the train was in motion;” that while said train was running at a high rate of speed Robinson, “being too drunk to realize the danger, went out oh the platform of the car; that said platform had no guard rail, gates or other protection, and that said Robinson was thrown, or fell, from said moving train.” Specifically, the negligence relied upon was alleged as follows: “That the defendant, its agents and employes were negligent in receiving said Robinson as a passenger while so intoxicated, and in failing to properly care for and protect him, and prevent him from getting into a place of danger.”
Appellant answered by a general denial, and specially, among other things, that Robinson was accompanied by a friend, who ap
The circumstances preceding Robinson’s death and furnishing the only explanation thereof to be found in the record, were testified to by one McClanahan, a witness for appellees. From his testimony it appeared that he and the deceased had known each other about ten years, and that on the evening before the accident occurred, by chance had met at Grant, a station on appellant’s line of road about twenty miles from Paris. From Grant they traveled on the train together that evening to Paris, reaching the latter place about 9 o’clock p. m. After securing a room at a hotel they seemed to have wandered around the city, taking several drinks of whisky and beer together, until about 11 o’clock p.- m., when McClanahan went to their hotel and to bed. Robinson, if he returned to the hotel during the night, did not go to his room, but was there "early the next morning. He was drunk and was talking and cursing very loud. A short time after Robinson returned to his room he and McClannahan went to breakfast. They then again, for about an hour, wandered around the city, taking “a few more drinks together” during the time, after which they separated. Afterwards, at about 11 o’clock a. m., McClannahan went to appellant’s depot in Paris to take the train to Hugo. Within a short time after he reached the depot Robinson came there. The train was late and did not leave Paris until between 1 and 2 o’clock in the afternoon. We copy from the statement of facts McClannahan’s testimony on his direct examination as to what subsequently occurred:
“Robinson was drunk and staggering when he came to the depot, and talking loud and acting in a manner to attract attention, and did attract the attention of people around the depot. He gave me the money to buy his ticket and asked me to get a ticket for him, which I did. He gave me seventy-five cents, which was the price of the ticket. He was so drunk that he could not talk distinctly, but I could understand him. I offered him his ticket and he would not take it—said he did not need any ticket. While we were waiting for the train Robinson was acting in such a manner that I was afraid he would get into trouble and get me into trouble, so I avoided him. Saw him one time just before the train came in, going across the street in the direction of a saloon. I next saw him after he got on the train. When I got on the porter was standing at the steps and asked me where I was going. When I got on I saw Robinson on the platform six or eight feet from the porter; he was talking and gesticulating. I could not hear what he was saying. He was staggering around and swinging his arms in a wild manner. Robinson came into the • car in a few minutes, talking very loud, and sat down with me. He was talking loud and cursing, and trying to talk to other people on the car—asking them where they were going. Some would talk to him and some would not. He did not sit long, but got up, and was standing and holding to a' seat when the conductor came through taking up the tickets. I gave the conductor
McClannahan further testified that “at the time Eobinson got on the train and until he was killed he was so drunk as to be incapable of taking care of himself.” On his cross-examination he testified that he himself was “pretty full” when he got on the train, but that Eobinson “was drunker than (I) was.” Eobinson, he stated, “was staggering, but not so much that he could not get around.” And he added, “he did not talk sensibly.” The cross-examination of Mc-Clannahan disclosed that in a statement in writing made by him to appellant’s claim agent, after the accident and before the trial, he had asserted that at the time of the accident “Eobinson had been drinking a little. He was not drunk. I considered that he was able to take care of himself.” With reference to the statement made by •him to the claim agent, on his cross-examination, he testified: “It is true in part, and part untrue. The part that states Eobinson was not drunk is not true. He was drunker than I said he was in this statement.”
The court instructed the jury as follows:
“If you believe from the evidence that on the day and date alleged in plaintiff’s petition, at the time William I. Eobinson, now deceased, was, or after he had been received as a passenger on defendant’s train, was in such a state of intoxication as to render him incapable of caring for- and talcing care of himself, and that the defendant, its agents and employes knew that he was so intoxicated, and if you further believe from the evidence that defendant, its agents and employes failed to exercise such a high degree of foresight as to possible dangers to said William I. Eobinson during the time he was a passenger and intoxicated, if he was so intoxicated, or such a high degree of prudence in guarding against them as would be used by very cautidus, prudent and competent persons
The appeal is from a judgment in favor of appellees for the sum of $13,200.
After stating the case.—We think appellant’s fourteenth assignment of error, complaining of the action of the court below in refusing its request to instruct the jury to return a verdict in its favor, should be sustained.
As the trial court viewed the evidence, he must have thought it sufficient to support a verdict finding - the deceased to have been so intoxicated as, within appellant’s knowledge, to be incapable of caring for himself; to support a finding that appellant had no excusable reason to believe that MeClannahan was attending to and caring for him; and, further, to support a finding that negligence on the part of the appellant was the proximate cause of his death. For the court refused to submit as issues in the case contributory negligence on the part of the deceased, and appellant’s contention that it had a right to assume that he was being attended to and cared for on the trip by MeClannahan, his companion. We do not think the evidence was sufficient to support such a view of the case.
We do not understand it to be the law that, as to every intoxicated passenger, a duty rests upon the carrier to resort to other and different means to provide for his safety than rests on it to provide for the safety of a sober passenger. It owes to each the high degree of care which a very prudent and cautious person under the same circumstances would exercise. Intoxication is .of varying" degrees. A person so under the influence of liquor as not to be entirely .at himself is intoxicated, yet he may not betray it by either movement or word, and his condition may not be discernable by his intimate friends. It would hardly be contended that as to such a person the carrier must resort to other than the ordinary means for his safety. Again, a person may be “staggering drunk,” and yet be capable of transacting with intelligence important business, and with great foresight providing under given circumstances for his own safety and comfort. In the absence of knowledge on the part of the carrier that he was in or about to get in the place of danger, it could not with reason be insisted that the carrier, in the exercise of the high degree of care it owed to such a person as a passenger, should provide a guard for him or resort to other extraordinary means to insure his safety. Such a person undoubtedly would be entitled to demand transportation as a passenger. The fact alone that he was drunk and staggering would furnish no excuse for refusing to receive him (Price v. St. Louis, I. M. & S. Ry. Co., 88 S. W., 575; Thixton v. Illinois Cent. Ry. Co., 96 S. W., 548; Milliman v. New York Cent. Ry. Co., 66 N. Y., 642; Strand v. Chicago & W. M. Ry. Co., 67 Mich., 380); especially so, we think, in view of our statute declaring it to be the duty of the carrier to receive and transport all persons offering themselves as passengers within a reasonable time previous to the time of the departure of its train, and
If, however, it appeared from the record that deceased was so drunk as to be incapable of caring for himself, and if it further appeared that appellant’s conductor had no right to assume that his companion would so care .for him as to insure" his safety against conduct imprudent in one in his condition, we nevertheless would be of the opinion that the judgment should not be permitted to stand. For. the record fails utterly to show how deceased got from the train and to his death. He may have jumped from the window or fallen from the platform. He may have been thrown by someone from a window or the platform.. The doctrine of res ipso loquitur does not apply. That doctrine has no application “unless the thing causing the accident is under the control of the defendant or his servants, and the accident is of a kind which does not ordinarily occur if due care has been exercised.” 6 Thompson on Negligence, sec. 7635. Here the testimony fails to show what 'caused the accident. Until this primary fact was shown an inference of negligence from it, of course, could' not be drawn. It devolved on appellees, by evidence competent for the purpose, to .show .negligence on appellant’s part. No such evidence is in the record before us. It was contended in the argument that an inference" of the existence of facts showing negligence might
We do not understand that on another trial other evidence than that in the record might be obtainable and. offered. We therefore see no reason for remanding the case. Hence, the judgment will be reversed and judgment will be here rendered in appellant’s favor.
ON MOTION FOIt REHEARING.
It appearing from a/ppellant’s motion for rehearing that other evidence than that offered on the trial resulting in the judgment appealed from is obtainable, the motion is granted and the cause is remanded for a new trial.
Reversed and remanded.