I. & G. N. R'y Co. v. Gilbert

Willie, Chief Justice. The general and special demurrers to the petition were properly overruled. It is alleged that the plaintiff, before leaving Longview, inquired of the conductor of the defendant’s train if she was in the right train, to which he replied by telling her to keep her seat. This was equivalent to saying that she was on the right train. It is objected that it does not appear that she informed the conductor as to where she wanted to go. We think that this does sufficiently1- appear from the above allegations when taken in connection with others found in the petition. The plaintiff was on a train upon which she had just arrived over the Texas & Pacific Railroad, upon which road her place of destination, according to her ticket, which was a through ticket from Decatur, Alabama, to Terrell, Texas, was situated. This train, upon its arrival at Longview, was run upon an entirely different track, belonging to the defendant company, which did not lead to her place of destination. The conductor knew that this train had come over the Texas & Pacific Railway track, and that at Long-view passengers upon that train could continue their journey by way of this same track, or go by way of the defendant’s road in a different direction to other and different places. He therefore knew that travelers, unacquainted with these facts, were liable to make mistakes and take the wrong train at this point. The very question asked by the plaintiff put him upon notice that she was ignorant of the running of the trains; and the fact that she was a woman, traveling apparently without a male companion, should have made him doubly careful to see that she did not take the wrong train. It was no excuse to say7 that she did not show him her ticket, and hence he could not tell where she wanted to go. It was his [540] duty, under the circumstances, to call for her ticket, or at least to inquire as to the route she wished to travel. It is also objected that the petition makes the plaintiff a trespasser, and not a passenger, upon defendant’s road. It is a principle too well settled to require further elucidation, that a person who, by mistake, gets on a passenger train other than the one upon which he intended to take passage, is, nevertheless, a passenger upon the train he is on, and the relation of passenger and carrier exists between him and the company. R’y Co. v. Powell, Adm’r, 40 Ind., 37; Barker v. R’y Co., 24 N. Y., 599. The case of the plaintiff is stronger. She was on defendant’s train, not solely through her own mistake, but by the fault and negligence of the conductor of the train, whose duty it was to see that she made no such mistakes. It is also urged by way of demurrer that the damages claimed were not the natural, direct and proximate results of the acts charged by plaintiff to have been committed by defendant’s servants. As one ground of damage it is alleged that the plaintiff, a helpless and unprotected woman, was subjected to great bodily and physical pain from being rudely ejected from the cars by the conductor and porter, in the presence of the other passengers, the conductor at the same time using insulting language towards her. As another ground it is alleged that she suffered bodily and mentally from being thus put off in a dark, cold night, in the swamp of a river, in a strange country, and where no one lived except a few negroes. Of course, it is not urged by the defendant that these were not the direct, natural and proximate results of the misconduct of the conductor. But if it were, the position would be so contrary to reason and authority as to require no argument to overthrow it. But it is said that the damages resulting to defendant from having walked back to Longview from the place where she was ejected from the cars were too remote to be allowed. As to whether or not she was justified in going back to Longview depends upon the circumstances by which she was surrounded when left by the train. As already stated, the plaintiff was unaccompanied by any male protector; she had with her a sister and two infant children; she was in the swamp of a river in a strange land; it was a cold, dark night, and she could get no shelter except with negroes; and whilst she and her companions might have been as safe with them as anywhere else, it was certainly justifiable in her to seek security at the nearest point, where, within her knowledge, it could be afforded. The condition and surroundings of the place where she [541] was forced from the cars were well known to the employees of the road. The influence that they would have upon a person in the plaintiff’s condition must also have been known to them; and they might reasonably have contemplated that she would take such precautions as in her judgment would contribute to her safety and comfort. This is precisely what she did; and, if she committed an error, it was an innocent one, and those who forced her into the condition in which she was placed by their own wrongful acts have no right to complain. H. & T. C. R’y Co. v. Devainy, 63 Tex., 174. It was the defendant’s duty to immediately return her in safety to the place where she took the wrong train through fault of the conductor, or at least to leave her at some point where she would not be subjected to any serious annoyances, and to send her to Long-view by the first returning train. If it left her at an improper, uncomfortable and possibly an unsafe place, it must have expected her to make the best provision in her power for her comfort and safety. We think the railroad company bound for the character of damages claimed, and that the petition is good against all the exceptions taken to it. In overruling the demurrers the case is in effect decided. Every material allegation of the petition is fully sustained by the evidence, and in some particulars the proof is much stronger than the pleading. Eor instance, the proof makes it clear that when Miss Gilbert inquired of the conductor at Longview as to whether she was on the right train, she, at the same time, showed her ticket, which was to Terrell, upon the Texas Pacific Railroad. This gave the conductor full notice of the place of her destination, and deprived him of all excuse whatsoever for directing her to remain on a train which went in a different direction. The proof, too, shows that the plaintiff was subjected to greater insult in putting her off the train than is claimed in the petition. The charge submitted the issues clearly to the jury. It w7as the law of the case made by the evidence, and it is in the light of the evidence that every charge must be considered. Being in accordance with the principles announced in this opinion, it will not be necessary further to consider it. There was no error in excluding the testimony of Clements. We know of no rule of evidence that admits proof of a custom to contradict a fact plainly proved by positive testimony. 1 Greenl. on Ev., § 292. The finding of the jury as to the amount of damages we cannot disturb. They do not seem to us excessive to any great extent, if at all. It is difficult to compute in figures what sum will repay the plaintiff for the gross insults and physical and mental pain to which [542] she has been subjected by the misconduct and rudeness of the employees of a railroad company, as detailed by the witnesses in this case. The value of the time lost by her might be estimated, but the damages for her pain of body and mortification of mind must be left largely to the discretion of the jury. When they have not apparently abused this discretion, and no outside influences have been used to excite their passions or prejudices, the result of that discretion must control the judgment of this court on appeal. We have not noticed the tenth assignment of error, which is: “ The court erred in refusing to give the jury the special charges numbered from one to eight, inclusive, asked by the defendant,” as it is in violation of the rules. There is no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered October 23, 1885.]