Gulf, Colorado & Santa Fe Railway Co. v. Rather

FISHER, Chief Justice. The appellant’s fifth and sixth assignments, of error complain of the action of the court in overruling its demurrer addressed to so much of the plaintiff’s petition as asks for damages resulting from the alleged robbery by highwaymen, and in failing to instruct the jury to disregard such allegations. There is no merit in either of these propositions. It does not appear from the record that the demurrer was acted on in the court below, or even called to the attention of the trial court. Such being the case, the presumption is that it was abandoned. The court was not required, at least without a request to that-effect, to instruct the jury to disregard an allegation that was not an issue in the case. There is not a word of evidence in the record concerning any robbery or attempted robbery. The matter was not mentioned in the charge or called to the attention of the jury in any manner, so far as appears from the record. All that appears with reference thereto is the allegation in plaintiff’s petition. It appears that this matter was abandoned and was not relied upon as an issue in the case. At least such is the inference drawn from the record. As the question is presented, we-fail to see how the appellant was injured. The principal questions in the case are, was the appellee guilty of a want of proper care in failing to examine his ticket and discover the mistake made in the route before he reached Cleburne; and after the mistake was discovered, was the appellant justified in treating the appellee as a trespasser upon its train ? The facts show that the ticket really contracted for was over the route travelled by appellee when he was removed from the train, but by a mistake a ticket over a different route was delivered him. He, for want of time in order to board the train at Temple, which was about leaving, did not examine his ticket when he paid for it. Nor did he examine it at all before reaching Cleburne, where the change of cars is made for the route called for by the ticket. It is not necessary for us to undertake to lay down in this case a rule of law that should control the conduct of a passenger when he actually discovers that a mistake is made in selling him a ticket, and permits a seasonable opportunity to pass without attempting to correct it, for that is not the question before us. The question is, was the passenger guilty of negligence in failing to discover the mistake before his right to ride was questioned by the conductor ? The fact of the passenger’s negligence in a case of this character in the manner complained of is not determined by any rule of law that gives character to the act, but its existence or nonexistence is ascertained as a fact by the ■jury from all the facts and circumstances surrounding the passenger at the time, that tend to explain his conduct and that of the servants of the-carrier whose duty brings them in contact with the passenger. We do not believe that the finding of the jury on this question is without evidence to support it. Railway v. Gilbert, 64 Texas, 539; Railway v. Has [77] sell, 62 Texas, 257; Railway v. Mackie, 71 Texas, 497; Railway v. Bray, 125 Ind., 233. We now come to the question, whether the appellant was justified in treating the appellee as a trespasser upon its train and requiring him to leave it, and refusing him the right to continue his journey by that train. This can be answered in the negative, for two reasons: First. If the appellee was upon the train by mistake arising from the fault of the servants of appellant, or if there was a mistake in the ticket calling for a different route than that contracted for, the appellee was not a trespasser, and it was the duty of the carrier to treat and deal with him as a passenger and afford him a reasonable opportunity to correct the mistake if he so desired, and not prevent him from doing so, as was done in this case, when the appellant refused him a reasonable time to purchase other tickets, as he was endeavoring to do when he was left at the station by the conduct of the conductor. It is said in Railway v. Gilbert, 64 Texas, 540: ‘‘ 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.” Second. The appellee had the right to stand upon his contract as it was really made with the ticket agent of appellant. While the ticket is usually the evidence of the contract between the carrier and passenger, yet what is contained therein or omitted therefrom is not in all cases to be considered as conclusive of the rights of the passenger. 2 Beach Law of Rys., secs. 869, 870. If the carrier by mistake fails to deliver what the passenger purchased, or fails to furnish the passenger with a ticket evidencing his rights secured by the contract really entered into, it. must correct this mistake when the emergency requires, and grant to the passenger the privilege and right actually purchased. The carrier will not under such circumstances be permitted to complain of the condition of the passenger which it by its wrongful acts has forced upon him. 64 Texas, 541. When the right of the passenger in this ease was first questioned to travel upon the ticket, he explained to the conductor the facts and circumstances under which it was purchased, and suggested to the conductor that a communication with the agent who sold him the ticket would verify his statement. The conductor at the time was the agent of the carrier and its representative in dealing with persons standing in the relation of passengers. He could no more deny the passenger the benefits of the' contract of carriage as really made than could the carrier itself. It can not be heard to say that it was ignorant of the terms of the contract. It knew of the terms of the contract through another agent—the one with whom the passenger dealt in purchasing his right to transportation. Railway v. Mackie, 71 Texas, 494; Railway v. Bray, 125 Ind., [78] 229; 40 N. W. Rep., 691; 7 S. E. Rep., 217; 16 Atl. Rep., 67; Railway v. Hassell, 62 Texas, 257. Under the facts, we think the appellee was entitled to complete his journey on the train, and that the carrier wrongfully required him to leave it. We think the court fairly and fully charged the law applicable to the case, and it contains no reversible error. There was no error in refusing the charges requested. Judgment affirmed. Affirmed. Delivered March 24, 1893. Motion for rehearing overruled.