cause in which said proceedings were had was dismissed. But upon such question, SOUTHERN KANSAS RY. CO. OF TEXAS some light may be cast by these authorities: v. EMMETT.† Shields v. Boone, 22 Tex. 193; Highsmith v. | (Court of Civil Appeals of Texas. Ft. Worth. Ussery, 25 Tex. Supp. 97; Flanagan v. Pearson, 61 Tex. 302; Harrison v. McMurray, 71 1. TRIAL (§ 252*)-INSTRUCTIONS. Tex. 122, 8 S. W. 612; Coyle v. Franklin, 54 Fed. 644, 4 C. C. A. 538. We, therefore, overrule the first, second, and third assignments of error, and twelfth, which complains that the verdict is contrary to the law and evidence, as well.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Carriers, Dec. Dig. 287.*]

train at the depot that plaintiff might take pas- | existing, and the engineer testified that he sage thereon. in fact did not see or hear the running persons, but that, as was his duty, he was keeping a lookout ahead. However, they continued to run in the effort to catch the train, and appellee turned off the road and ran down the side of the track some 60 feet to

Speer, J., dissenting.

Appeal from District Court, Roberts County; F. P. Greever, Judge. Action by M. M. Emmett against the South-gether with the moving train, when he caught ern Kansas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hoover & Taylor, H. A. Allen, and Terry, Cavin & Mills, for appellant. Cooper & Stanford and Willis & Willis, for appellee.

one of the cars behind the smoker and made the effort to board it. The train was going

too rapidly for him to be able to do so, and he was thrown therefrom with one foot un

der the train, which was amputated by the wheels, and he was otherwise severely injured. The engineer testified that at the time of the accident the train was going at CONNOR, C. J. This appeal is from a the rate of 20 miles per hour, and there was judgment in appellee's favor for the sum of other testimony indicating that it was going $10,000 as damages for injuries received by quite rapidly. Appellee's testimony, however, him under substantially the following ciron the part of several witnesses, was to the cumstances: Appellee, together with a num-effect that it was not going at a greater rate ber of other members of a baseball nine, went of speed than five or six miles per hour, and to the station of Glazier, Hemphill county, it appeared that two of the party actually early on the morning of the 5th day of April, succeeded in boarding the train, although 1909, with the view of taking passage on one another one of them, like appellant, was of appellant's trains to Roswell, N. M. When thrown therefrom in the effort to do so. Aphe went to the station, it was ascertained that the train was late, and appellee went to pellee testified that he would have been able to get upon the train but for the fact that the bulletin board at the station; but, not just as he was about to do so, and after his finding thereon notification of the time of the hands were upon the entrance rails, the train train's expected arrival, he went into the station and inquired of the agent, having first gave a sudden lurch forward, which broke his handhold and caused his fall. It was bought tickets for the intended journey, for the time the train would arrive. He was in- alleged, and there was also evidence tending

testimony in behalf of appellant.

The negligence alleged was a failure to blow the whistle and ring the bell upon the approach of the train upon entering the station, the negligence of the agent in giving incorrect information as to the time of its arrival and negligence on the part of those operating the train in causing the lurch above referred to. The court by its charge excluded all issues of negligence save that of the alleged negligence of the station agent and of the engineer, and, after giving appropriate instructions relating to negligence, contributory negligence, and proximate cause, thus submitted these two issues:

to show, that no whistle was blown or bell formed that the train was two minutes out of Higgins, and that by schedule time the rung as the train entered Glazier that morntrain would be in in 31 minutes. Appelleeing, although this was also disputed by the and others thereupon repaired to a restaurant some 250 yards away for the purpose of getting their breakfast. Coffee was made, a lunch prepared and eaten, and appellee thereupon walked to the front of the restaurant and saw that the train was in the station and, as he testified, just moving out. He thereupon called to the remainder of those who went with him for breakfast, "There she goes!" and all began running in order to catch the train. The train was proceeding west and the runners in a southerly direction down one of the main streets of the town. At the time of starting, which, according to appellee's testimony, was about 15 minutes after the information above referred to as to the train's time of arrival, the front of the engine was within about 20 feet of the street crossing; but, by the time appellee and several of the men arrived near the train, the engine, tender, baggage, express, and smoking cars had already crossed the street. As the parties ran, some of them whistled, and others hollowed to the engineer, and there was testimony to the effect that when they were within 75 yards of the train the engineer looked in their direction with, as one of the witnesses expressed it, an amused expression on his face. The evidence is conflicting as to the degree of light then

|

"(7) Now, if you find and believe from the evidence in this case that plaintiff, on or about the 5th day of April, 1909, applied to defendant's ticket agent at Glazier, Tex., for the purpose of purchasing a ticket over defendant's line of railway from Glazier, Tex., to Roswell, N. M., and you further believe that plaintiff did purchase said ticket from defendant's said agent at Glazier with the intention of taking passage on defendant's regular passenger train from Glazier to Roswell, and if you further believe that after plaintiff had purchased said ticket, as above stated, if you find he did, that he applied to defendant's said ticket agent to know when

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

said defendant's train en route to Roswell, | any operator of the train knew of appellee's N. M., would arrive at Glazier, and if you approach thereto, except the evidence already further believe that defendant's said agent referred to indicating that possibly the enat Glazier gave plaintiff information that was incorrect, and you further find that said act of defendant's said agent in giving plaintiff information that was incorrect, if you find he did so, was negligence, as the term is used herein, and that such negligence, if any, was the proximate cause of plaintiff's injury, and that plaintiff was not guilty of contributory negligence, then you will find for the plaintiff.

the evidence show the cause of the sudden movement or lurch of the train of which appellee complains. No witness testified that at that moment, or that at any time after the engineer saw appellee, if he did so, he opened the throttle of the locomotive or did any act

gineer saw appellee and the other boys approaching the train when some 75 yards distant. It is not pretended that either the engineer or other operative of the train saw appellee just before his attempt to board it or invited him to make the attempt, and, if it be conceded that the engineer saw the appellee and the others approaching the train under the circumstances testified to by them, it by no means establishes the fact that the "(8) You are further instructed that if engineer knew, or was bound to know in the you find and believe from the evidence in exercise of ordinary care, that appellee and this case that on the occasion in question, the others would, at the time and place and and after plaintiff had purchased a ticket with the speed of the train as it undoubtedly over defendant's line of railroad from Glaz- was, make the actual effort to get thereon. ier, Tex., to Roswell, N. M., that the plain- If he saw them, he might well have anticipattiff left defendant's depot and went to a res-ed that appellee and others desired to take taurant in said town of Glazier for the pur-passage upon the train; but the evidence pose of getting breakfast, and that while shows that the train had stopped at the stahe was away from said depot, and before tion the usual time, and no duty rested upon plaintiff had returned, the defendant's train the engineer to stop his train in the prairie carrying passengers en route from Glazier, to enable a person to take passage. Nor does Tex., to Roswell, N. M., arrived at Glazier, and when discovered by plaintiff was in the act of leaving said station, and you further find from the evidence that plaintiff ran to said train for the purpose of boarding same, and that while so running for the purpose of boarding said train defendant's engineer in not theretofore done which caused an incharge of said train saw plaintiff approachcrease of the train's speed, and it cannot be ing said train, and that said engineer from the movements and actions of plaintiff at "lurch" proves negligence on the part of the maintained that the mere happening of the said time knew that plaintiff was approaching said train for the purpose of taking engineer, so that we are left to mere conjecpassage thereon, and you further find and ture on this point. Moreover, we think the believe from the evidence that plaintiff did evidence was wholly insuflicient to authorize approach said train and attempt to board the the submission of the issue of negligence in same while in motion, and while in the act this respect, inasmuch as before stated the of boarding said train defendant's engineer evidence so wholly fails to show that the encaused said train to move forward very rap-gineer at the time actually knew, or in the idly and with a lurch, and that plaintiff was thrown to the ground, and that such acts, if any, on the part of said engineer, was negligence, as herein before defined, and that by reason of such negilgence, if any, plaintiff sustained injuries, and that such injuries were the direct and proximate result of such negligence, if any, and that the plaintiff himself was not guilty of contributory negligence, then in that event you will find for the plaintiff and assess his damages as hereinafter charged you."

There were other charges given, including an appropriate charge upon contributory negligence; but, in the view we have taken of the case, it is unnecessary to notice them. [1] We all conclude that the court erred in giving the eighth clause of his charge. It is undisputed that the train in question was a very heavy one and behind time and going downgrade, that the engine pulling the same was one of those large locomotives described by the witnesses as designed to quickly gather speed and get away from sta

exercise of ordinary care ought to have known, that appellee was attempting to get upon the train, for no man is required to assume that another will undertake to do a dangerous thing. A somewhat similar case we think may here be referred to with profit, viz., that of the St. L. & S. W. Ry. Co. of Texas v. Highnote, 99 Tex. 23, 86 S. W. 923, in which it appears that a conductor of one of the railway company's passenger trains at Corsicana agreed to carry Highnote and one Martin, another policeman, to a designated point in the eastern part of the city. The conductor agreed that he would slack up enough for them to get off with safety at the place mentioned, and so informed the engineer of the arrangement. Before reaching the place agreed upon, Martin jumped off. Highnote went down on the steps of the coach, and, concluding that the train was running too fast for him to alight with safety, returned within the coach and pulled the bell cord. The coach began to slow up, and when the speed had reached its lowest, as

have been 25 minutes or it might have been 45 minutes" after appellee's arrival at the depot before making the inquiry of the agent, and appellee's witness Hank Eubank, whom no one contradicts, testified to the effect that it was after the conversation with the agent that the conclusion to get the lunch was formed. He says, "after that conversation we all went on the outside to talk over the matter of getting breakfast, and some of the boys decided they would go up and get something to eat."

and was injured. At the time he alighted, | train was more than an hour late, and that, the train was running at a speed of more in the language of the appellee, "it might than six miles per hour and too fast to alight in safety; but it was a dark night, and Highnote could not tell, and thought it was safe to do so. An ordinance of the city of Corsicana made it a penalty for operators of trains to run faster than six miles an hour within the corporate limits. The conductor was not present when Highnote alighted, and had no knowledge that he was going to alight further than the agreement that he slack up at that point. It was held, the conductor not having been present and not having directed Highnote to depart from the train at the time he did, that Highnote acted strictly upon his own judgment, and that the railway company could not be held liable for the results which flowed from his act, citing numerous authorities. Among the cases cited is that on Penn. Ry. Co. v. Aspell, 23 Pa. 147, 62 Am. Dec. 323, and from which our Supreme Court quoted with approval the following language: "From these principles (those referred to in the Aspell Case) it follows very clearly that, if a passenger is negligently carried beyond the station where he intended to stop and where he had a right to be left off, he can recover compensation for the inconvenience, the loss of time, and the labor of traveling back, because these are the direct consequence of the wrong done him. But, if he is foolhardy enough to jump our without waiting for the train to stop, he does it at his own risk, because this is gross imprudence for which he can blame nobody but himself." We conclude that the court erred in the eighth clause of his charge as assign

ed, and that the judgment must be reversed

therefor.

Appellant insists that there is no evidence which shows that the information given appellee as to the time when the train would arrive was incorrect, and there is none, and none to show a want of care on the part of the agent in the ascertainment of the information, except as may be inferred from the fact, according to appellee's testimony, that the train actually arrived in Glazier within 15 minutes instead of 31 minutes, as indicated by the agent's answer. In Mo. Pacific Railway v. Foreman, 73 Tex. 311, 11 S. W. 326, 15 Am. St. Rep. 785, it was said that no duty of care is imposed upon a railway company by reason of a conductor of a train. in response to a casual question asked by a passenger, answering and giving the length of time the train managed by the conductor would stop at a station ahead upon the road. It may therefore be well doubted whether. in any event, the answer of the agent in this case constitutes actionable negligence; but assuming, as the jury were possibly authorized to assume from all the evidence, that the agent was negligent in not more accurately

giving appellee the time of the probable ar rival of the train, the further question is The majority are of the further opinion presented of whether such negligence constithat the evidence did not warrant the sub-tutes a proximate cause of the injury. mission of the alleged negligence of the agent [2] It is well settled that, in order to reas a proximate cause of appellee's injury, as cover damages for an injury because of negwas done in the seventh clause of the court's ligence, the burden is upon plaintiff to show charge. In aid of our view on this subject, that the negligence charged was the proxiwe desire to here add a few particulars to mate cause of the injuries for which recovwhat we have already said. Appellee testi-ery is sought; but it is not always easy to fied that at the time of his inquiry he “asked the agent if we had time to get our breakfast." If the agent made any reply other than that the train was “2 minutes out of Higgins and would get there in 31 minutes by schedule time," appellee did not state it. Appellee further testified that: "After the agent gave us that information, I went up to a lunch counter to get some lunch. There were three of the ball team and the proprietor of the lunch counter went up there. That "it is about 250 yards from the depot to the restaurant," and they "hurried along in a walk. That after we got there the restaurant man had to light up the restaurant, light a fire, cook our breakfast." On cross-examination he said it was an egg lunch cooked on a gas stove and took but a few minutes. Other testimony shows that the

determine just when this is the case, and it may be profitable to review some of the authorities on the subject. The leading case of T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, was one in which Bigham, the complaining party, was engaged in tying a defective gate to certain cattle pens into which Bigham had driven cattle with a view of shipment. While so engaged, the cattle were stampeded by an approaching locomotive and ran against the gate and injured Bigham. It was held, in an able opinion by Chief Justice Gaines of our Supreme Court, that the negligence of the company in maintaining the gate in its defective condition was not the proximate cause of the injuries to Bigham's person, on the ground that the agents of the company could not have foreseen that as a result of the imperfect fasten

seen, the original negligence cannot be regarded as the proximate cause of the injury. Whether the deceased was negligent or not in her attempt to put out the fire, we think that this attempt, and not the original negligence of the defendant in starting the flame, was the proximate cause of her death."

ings of the gate the injuries, or any injuries | from some casualty which could not possibly similar in character, would probably result. be foreseen; and, in such cases, as we have Upon the same ground it was held first by this court, and later by the Supreme Court, that the negligence of a railway company in creating and maintaining a mud hole situated in a street adjacent to the right of way was not the proximate cause of the death of one whose horse was frightened by an approaching train, and which ran away into the mud hole, throwing the deceased therein and causing his death. See F. W. & R. G. Ry. Co. v. Neely, 60 S. W. 282; Neely v. F. W. & R. G. Ry. Co., 96 Tex. 274, 72 S. W. 159.

In I. & G. N. Ry. Co. v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661, by the Court of Civil Appeals for the Fourth District, in which a writ of error was refused, it was held that the negligence of the company in maintaining a rotten cross-tie, upon which Reiden stepped in flagging an approaching train, was not the proximate cause of injuries received by the tie giving way and throwing the flagman in front of the approaching train, on the ground that the result could not reasonably have been anticipated or foreseen. For the same reason it was held, in a Kentucky case (Tolin v. Terrell, 133 Ky. 210, 117 S. W. 290), that the negligence of the owner of a horse in failing to properly confine her was not the proximate cause of another's injuries caused by the horse biting a mule which thereupon kicked and injured the complaining party. In Rozwadosfskie v. I. & G. N. Ry. Co., 1 Tex. Civ. App. 487, 20 S. W. 872, it appears that two little boys went to the station to meet and care for a drunken father on a belated train, and that the agent drove them away. It was held that the agent could not have reasonably contemplated the later arrival and injury of the father, and that hence his negligence or wrong, if any, in driving the boys off, was not the proximate cause of the father's injuries.

In the case of Seale v. G. C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, it appeared that the railway company was guilty of negligence in permitting the accumulation of combustible material upon its right of way and in setting fire thereto by sparks from a passing locomotive. The fire, because of a high wind, was communicated to the grass of an adjoining pasture, and a little girl, while using reasonable care to prevent injury to herself, made an effort to extinguish the flames; but her clothing was caught, and she was burned to death. The Supreme Court, in disposing of the case, say: "From the allegations of the present petition, it is clear that, but for the attempt of the deceased to put out the fire, her death would not have ensued. This act of hers was the new agency, which, supervening upon the original wrongful act of the appellee, brought about the misfortune of which the appellant complains. The defendant should have anticipated that its negligence would endanger the property of the plaintiff. It should have anticipated that plaintiff, and perhaps others, would attempt to extinguish the fire and [3] Other cases might be cited; but those thereby save her property. But could it have named will be sufficient, we think, and have anticipated that in this attempt the life of been mentioned without effort to be literalany one would be lost? It might have antic- ly accurate for the purpose of illustrating ipated such an event in case of negligence on the rule that is well established in this state the part of the person killed by the flames; that, in order to warrant,a finding that negbut no one is bound to act in such case upon ligence or an act not amounting to a wanton the theory that parties who may possibly be wrong, is the proximate cause of an injury, affected by his conduct will be injured it must appear that the injury was the natthrough their own negligence. In the event ural and probable consequence of the negliof negligence on the part of the injured per- gence or wrongful act, and that it ought to son, such as is calculated to bring about the have been foreseen in the light of the attendinjury complained of, when it would not oth- ing circumstances. In view of this rule and erwise have happened, the original wrong- of the authorities cited, the majority have doer is excused. hence the latter is not been unable to avoid the conviction that the bound to take it into contemplation. That negligence of the agent, if any, in misdirectthe company, in the present case, should be ing appellee as to the time of the train's held to have contemplated that the life of arrival, was not the proximate cause of his any one attempting, in a careful manner, to injuries. There was evidence tending to extinguish the flames would be sacrificed, we show that the agent knew that appellee's inthink is unreasonable. That one exercising quiry was prompted by the desire to go and due care, and incurring no risks, in extin- get his breakfast, and the agent could very guishing a fire, should have the flames com- reasonably have anticipated that, as a result municated to her clothes, and thereby lose of a misdirection as to the train's time, apher life, is something so improbable that the pellee would leave the station for such disanticipation of it should not be charged to tance and length of time as to cause him to any one under such circumstances. Such a lose his trip, and for this appellee undoubt