H. & T. C. R. R. Co. v. Clemmons , 55 Tex. 88 ( 1881 )

Bonner, Associate Justice.

That the baggage car was a place of more danger, ordinarily, than the regular passenger coach provided by the company, is a fact well and generally known, and particularly to one who, like the plaintiff Olemmons, was then and had been for years in the employment of railroad companies in running their trains; a part of the time as fireman upon this very road and engine.

It is reasonable to presume, even in the absence of testimony, that the plaintiff knew of this danger and the wholesome regulations of the defendant company forbidding passengers to ride upon its baggage cars.

That plaintiff, therefore, was guilty of contributory negligence in this case, cannot be questioned, as the testiniony shows that he would not have heen injured had he remained in the passenger coach. R. R. Co. v. Jones, 5 Otto, 439; R. R. Co. v. Lane, 83 Ill., 448; Hickey v. R. R. Co., 14 Allen, 429. Under well established rules of law, this contributory negligence would exonerate the company for liability, unless the plaintiff brought himself within some exception to these general rules. Hickey v. R. R. Co., 14 Allen, 431.

It is said in this last named case, that “if sufficient and suitable provision be made within the cars for all the passengers, the managers of the train are not under obligations to restrict them to their proper places, nor to prevent them from acts of imprudence. If they voluntarily take exposed positions, with no occasion therefor nor inducement thereto caused by the managers of the road, except a bare license by non-interference or express permission of the conductor, they take the special risks of that permission upon themselves.” 14 Allen, 433.

To the same effect is the above case of R. R. Co. v. Jones, 5 Otto, 439.

The reason given by the plaintiff for being in the baggage car at the time of the accident was that he had gone there to get water, none being otherwise furnished. He himself, however, states that he had been there about five minutes, and no necessity is shown why he should have remained so long. Although he swears that he was at the time in the baggage car, yet there was testimony tending to prove that he was elsewhere. He admits to have been upon the engine a part of the trip; one witness testifies that he was there ten minutes before the accident, and there is testimony in regard to contradictory evidence given by plaintiff on a former trial, as to his riding upon the engine, tending to impeach his veracity as a witness.

The case as presented to us does not show such satisfactory reason on the part of the plaintiff as would justify his being, at the time of the accident, at any other than the place provided for the accommodation of passengers, so as to bring him without the general rule of contributory negligence.

Neither does the testimony, as contained in the record, show such gross negligence on the part of the company in the selection of their employees, or that the accident was occasioned by such gross negligence at the time upon the part of these employees, or for the want of proper machinery and appliances, which would authorize the plaintiff to recover on this ground, notwithstanding he may have been guilty of contributory negligence.

We are therefore of opinion that the judgment is not supported by the evidence as applied to the law of the case, and it is accordingly reversed and the cause remanded.

Reversed and remanded. •

[Opinion delivered April 22, 1881.]