Galveston, Houston & Henderson Railway Co. v. Crispi , 73 Tex. 236 ( 1889 )

Henry, Associate Justice.—

It appears that appellant was running-an excursion train from Houston to Galveston and back. Mrs. Crispí, with an infant and a nine-year-old child, took passage at Galveston for Houston. She purchased at Galveston of “ a scalper ” a ticket to Houston. She lived at Harrisburg, an intermediate station, and wanted to leave the train at that place.

The defendant was in the habit of stopping the train there to take on and put off passengers, and there were a number of passengers on the same trip who wished to get off there. The train reached Harrisburg after 12 o’clock at night. Plaintiff charges that the defendant negligently failed to announce the arrival of the train at Harrisburg or stop it long enough for her to leave it, and that she was carried beyond Harrisburg and required to -get off in the woods with her children; that she had to cross two difficult -railroad bridges to reach home, and that she was greatly frightened, her clothing injured, and she and her infant made sick by the exposure, causing pain, loss of time, and pecuniary damage.

The evidence is quite conflicting as to whether the train stopped at all at Harrisburg. A large number of witness testified that it did, and long enough for all passengers to get off who desired' to do so. As many testified that it did not stop at all. Mrs. Crispí did not inform the conductor that she desired to get off 'at Harrisburg, and there is nothing to indicate that he knew she did until after he had passed that place. ' When she found she had been carried beyond her destination she requested the •conductor to stop the train, and when it was stopped- she got off ■ voluntarily. She testified that she did not know about the streams that she would have to cross, and also that she was without the means of paying a hotel bill if she had gone on to Houston.

The verdict was in plaintiff’s favor for two hundred and fifty dollars, from which defendant appeals.

The court charged the jury: “If from the evidence you conclude that Mrs. Crispí was on July 29, 1888, a passenger on defendant’s train by virtue of an excursion ticket issued by the said company from Galveston to Houston, and defendant’s train stopped at Harrisburg, an intermediate station, for a time reasonably long enough for the passengers, including Mrs. Crispí, bound for that place to get off, then you need inquire, no further, but find for the defendant.”

Appellant objects that this was an erroneous charge, because Mrs. Crispí did not know when she arrived at Harrisburg, and made no effort to leave the train; that she was probably asleep.

There is some evidence that she was on the alert and ready to disembark if the train had been stopped.

The other errors assigned are that the court erred in overruling defendant’s motion for new trial—

1. Because the testimony of the conductor and brakeman shows that when plaintiff left the train and before, she was notified that if she attempted to return to Harrisburg she would have to cross the two long bridges; that having a knowledge of these facts and the distance from Harrisburg she said she would prefer to return to Harrisburg than go on to Houston, although she had a ticket to Houston.

2. Because the plaintiff alleged in her petition that she was ejected from the train, when her own evidence shows that she left the train voluntarily.

As in other respects the evidence of different witnesses varies as to the distance the train had gone from the stopping place at Harrisburg to the place where plaintiff left it. Mrs. Crispí stated it was a mile, while one of defendant’s witnesses stated it was only 250 or 300 yards.

It is not clear from the evidence that plaintiff appreciated or was fully informed of the difficulties that she would experience in getting to her home if she left the train. Assuming, as there is evidence to indicate, that it was defendant’s fault that she did not get off at the depot where her husband was waiting to assist her, we can not conclude that it was more her duty to go, burdened as she was, at so late an hour of the night and unprovided with money, to a strange city than to attempt to make her way back to her own home and friends; nor that under the circumstances it was less the duty of defendant to return her safely to the depot than it was hers to go to the end of the journey.

Plaintiff alleges that she was required to leave the train, while, as is objected, the evidence shows that she left it voluntarily.

All of the facts are stated in her petition and voluminously covered by evidence on both sides.

In the sense of being required to leave the train by expulsion or command the allegation is not proved, but in the sense of being required to leave it or be carried to Houston it is abundantly proved.

We see but one question in the case, and that is, did the defendant furnish the passenger a reasonable opportunity to get safely from the train at the usual stopping place?

On this point the evidence being conflicting, the charge of the court correct, and the verdict of the jury against the defendant, the judgment must be affirmed.

Affirmed.

Delivered March 5, 1889.