
    No. 5830.
    International & Great Northern Railroad Company v. C. S. Cock.
    1. Damages—Principal—Agent—Railways—Case Distinguished.—In an action against a railway company for damages sustained by the plaintiff through the alleged negligence of the defendant in operating a hand car on which the plaintiff was riding under an invitation from a servant of the railway company, it can not be assumed as matter of law " that the act of the servant in transporting the passenger in that manner was the act of the company. The authority of the servant to thus use a hand car, must be shown in order to render the company liable. This case distinguished from J. M. Prince v. International & Great Northern Railroad Company, 64 Texas, 144, and Pool v. Chicago, Milwaukee & St. Paul Railway Company, 14 Northwestern Reporter, 46.
    3. Charge op Court.—^ee opinion for a charge of the court on the liability of a railway company for injuries inflicted on a passenger when being transported on a hand ear. Held, error.
    3. It was error to charge a jury in a suit against a railway company for damages resulting from injuries inflicted on plaintiff when a passenger on its hand car, that it was the duty of the defendant “to employ a greater degree of care for the protection of plaintiff in proportion to the • greater degree of danger,” arising from that method of transportation; when the hand car had been furnished for the conveyance of the-plaintiff, and was manned by a crew who used it alone for themselves, and had not been accustomed in operating it to look after the safety of passengers traveling on it.
    4. Railway Company.—If a railway company furnishes, though without charge, transportation to a civil officer, to a point which he may designate as necessary to the discharge of an official duty, the same liability which it assumes to transport him safely to the place he first designated, will attach to the company for his safe carriage to any point beyond, to which he deems it necessary to go for the proper performance of his duty, afcd to which its servants having charge of him as a passenger, voluntarily transport him.
    Appeal from Hays. Tried below before the Hon. H. Teichmueller.
    Suit instituted by appellee, O. S. Cock, for damges resulting from the alleged negligence of defendant about the thirty-first of August, 1884. Appellee was a ."justice of the peace residing at San Marcos, Hays county. At that time appellant owned and operated a line of railway, extending from Laredo to and beyond Taylor, and was a carrier of freight and passengers, over said line of road for hire. Thomas Hume was appellant’s train master, and dispatcher for this division, stationed at San Antonio, and had charge of all freight and passenger trains, and the men in charge; but it was questionable whether hand cars- and their crews were under his control, it being claimed that they were under control of general road master Cronan. At time above mentioned, a colored man was found dead a few miles south of San Marcos, near appellant’s track—the fact was. reported to said Hume at San Antonio, and he telegraphed to Harris, the station agent, at San Marcos, to have Parker the section foreman to get up his crew and transport the justice and jury to where the body had been found, so that they might hold an inquest. Said parties to be carried on hand cars.
    Appellee intended to go in his own conveyance to where the-body was, for the purpose of holding an inquest; but was requested and invited by the servants of appellant, who claimed to be acting under authority of a telegram, received from some-official of the company, which was not shown, but was probably from Hume. There were two hand cars furnished, manned by four colored men, each, all under charge of Parker, section foreman; upon which appellee and his jury took passage. Other persons also boarded said cars, and when they left San Marcos, there were fourteen men on each car, giving them a crowded appearance. A plank or a scantling was laid across the car, on which appellee rode, and was not fastened in any way to the-car. Two other persons rode with appellee on the scantling. The body was brought by some one to San Marcos before the party left; but the coroner and jury went to where it had been found to investigate the surroundings in order to determine the-manner and cause of death, and arrived safely and made their examination; but not being fully satisfied, and appellee having heard that deceased was at Hunter, a short distance further south, on the night before, directed Parker to take the party there, the purpose being to find out any additional facts that could be learned that might throw light on the cause of the negro’s death.
    After proceeding a short distance towards Hunter, the car upon which appellee was riding met with an accident, result-. ing in considerable injury to him and several others. The car was at the time running down grade—some witnesses say at a high rate of speed, twenty-five or thirty miles an hour—others say not over eight or ten. Some of the party had before this complained that the speed was too great, but the officers in charge did not slack the speed. About this time, one of the crew cried out: “There is a rock on the track” (at this time, the object was. seventy-five or one hundred yards ahead), which afterwards proved to be a hat. The car had crank handles, also brakes, and is sometimes stopped by strong pressure on crank handles, sometimes by the brakes, and sometimes by both combined. At this moment none of the crew had hold of either. John Bates, whose business it was to control the brakes, hallooed: “Throw on the brakes,” when one Barber, a passenger, who was riding on the same seat with appellee, and whose hand was resting on the brake, seized it and endeavored to stop the car, but failed to do so. The seat upon which appellee was sitting tilted, and he and others fell out of the car and were run over and hurt to a considerable extent. It is hot very apparent how all this happened, and the evidence is somewhat conflicting as to what the crew were doing, and as to whether any of them had hold of the crank.
    It did not appear that appellant or its servants had ever before this time carried passengers over the road on hand car's. It was in evidence that there were rules prohibiting appellant’s servants from carrying any one on hand cars except track men, said cars being designed for carrying such persons, with necessary tools and materials for keeping up and repairing the track. But it did not appear that the public had been advised of this rule of the company. It was inferable, from the evidence, that Hume thought it necessary and in the interest of the company, that an inquest should be held over the body of the colored man, and that the hand car was furnished, under his directions, to further that object. Whether there were orders from appellant to any of its servants to aid the proper officers in holding inquests under like circumstances, or, by furnishing transportation or otherwise, is not clear; but the inference is that appellant’s agents were active in furthering inquests, such as the one conducted by appellee, on other occasions.
    The result of the trial was a verdict and judgment for appellee.
    
      Hutcheson & Rose for appellant:
    That the court erred in the first paragraph of its charge to the jury in assuming that the plaintiff was on the defendant’s hand car at the time of the injury to him with the consent of the servants of the defendant authorized to give such consent, and in so charging the jury, they cited Rogers v. Broadnax, 24 Texas, 538; Patton v. Rucker, 29 Texas, 402; Williams v. Davidson, 43 Texas, 2.
    
      O. T. Brown, and Cock, Denman & Franklin, for appellee,
    on their proposition that if the charge was defective, as assumed by the first assignment of error, defendant should have excepted to it at the trial, or else asked special instructions, calling attention of the court to the supposed defect, failing to do which, he could not be heard to assign the defect as error, they cited Texas & Pacific Railway Company v. Casey, 52 Texas, 124.
    On their proposition to the effect that if, in undertaking to transport the coroner and jury upon hand cars, Harris exceeded his authority, or, even if he violated express orders, yet, as it was a means proposed and adopted by him in his judgment best calculated to secure the object he was thus—specially at least— commissioned to accomplish—that is, to obtain an inquest, still the defendant would be liable, because he was thus acting in the scope of his immediate employment, and to conserve the interests of his principal, they cited 2 Thompson on Negligence, section 6; Wood’s Master and Servant, 593-596; Pittsburgh, Cincinnati & St. Louis Railway Company v. Kirk, 1 Northeastern Reporter, 849, and note; also, 1 Wait’s Actions and Defences, 232, section 12.
    On their proposition that the car being under the exclusive management and control of the defendant, and the like not ordinarily occurring when proper care is used, the presumption of negligence on the part of defendant arose from the occurrence of the disaster itself, they cited Stokes v. Saltonstall, 13 Peters (U. S.), 181; Scott v. London & St. Catherine Docks Company, 3 Hurl. & Colt. Exch., 596; Templeman v. Haydon, 12 C. & B. (C. P.) 5071; Thompson on Car. of Pass., 211; 17 Federal Reporter, 105; Jac. Fish. Digest, 9419; Wilson v. Northern Pacific.Railway Company, 3 Northwestern Reporter, 333; Smith v. St. Paul City Railway Company, 18 Northwestern Reporter, 827.
   Maltbie, Judge.

The judgment is sought to be reversed upon a number of grounds. Among others, the following charge of the court is complained of and assigned as error:

First. “The jury is instructed that according to the undisputed evidence submitted to you, the plaintiff was on defendant’s car, either at the invitation or with the consent of the ^servants, authorized by the general train master of defendant company. You are instructed that the plaintiff was lawfully on said car, and that the defendant would be liable in damages for any injury the plaintiff may have sustained while on said car, by reason of any negligent conduct of the servants of the company in charge of said car.

Second. “If you believe that said car was not ordinarily used to carry passengers, and by reason of its construction and mode of propelling it, persons riding, on the same were exposed to more than ordinary danger, it was incumbent on the servants of defendants in charge of said car to employ a greater degree of care for the protection of plaintiff, in proportion to the greater degree of danger arising from the unusual situation and all of the surrounding circumstances. But the plaintiff, by entering such car, also accepted such greater risk as was patent to him, and such danger as was manifestly incident to riding on such car, and as could not be avoided by the careful and prudent management of the same by the defendant’s servants, which the plaintiff had a right to expect and might reasonably rely upon under the circumstances.”

Each of these paragraphs of the charge of the court are assigned as error. By a reasonable construction of the first, the jury had a right to infer that the plaintiff was on the hand car with the consent of some agent of the defendant, who was either expressly or impliedly authorized to give defendant’s consent for appellant to be carried on the hand car, with all of the rights of a passenger on a train operated for transporting passengers. There was no dispute as to appellee having the consent of Hume to ride on the car; but it was denied that Hume had any authority to give appellant’s consent for him to do so, and there was evidence tending to support this view of the case. We think that the district court erred in holding as a matter of law, under the facts of the case, that appellee had the consent of appellant to ride upon said hand car, but that it should have been left to the jury, under appropriate instructions, to determine the status of appellee in connection with said car. (Pierce on Railroads, 277; Jackson v. Second Avenue Railway Company, 47 New York, 274; Redding v. South Carolina Railroad Company, 3 South Carolina, 1.)

The servants of appellant who gave appellee permission to ride on the car are not shown to have had the power to abrogate or suspend rules promulgated by the proper authority for the •operation of the road; and the court below could not assume that said servants, in so doing, were acting in the apparent scope of their authority. But, if the facts proven had have been sufficient to justify the belief that appellant’s agents had the authority to furnish transportation to facilitate holding the inquest, it might have been submitted to the jury to say whether such •agents were acting in the apparent scope of their authority, in furnishing the hand car in question.

The decision in the case of T. M. Prince v. The International •& Great northern Railroad Company, reported in 64 Texas, 144, although growing out of the same facts that exist in the present case, was upon demurrer to plaintiff’s petition, in which it was alleged that Prince was on the hand car by the invitation and consent of an agent of defendant, who had authority to give defendant’s consent thereto, and has no application to the question under discussion. And in the hand car case of Pool v. Chicago, Milwaukee & St. Paul Railway Company, 14 Northwestern Reporter, 46, it was shown that Pool took passage on defendant’s hand car to attend to business for defendant; that said car was furnished by an agent of defendant, authorized by defendant to furnish.it, and the only point decided was that Pool was entitled to recover under the same facts that any other passenger would be who had paid his fare and was traveling on a passenger train, which was also held in Prince v. The Railroad Company, supra, and may be considered settled law in this State.

. We think that there was also error in the second paragraph of the charge of the court complained of above. Some courts have held that persons taking passage on tráins not designed or used for the transportation. of passengers were not entitled to the rights of passengers, and while such is not the law in this State, it would be unreasonable to require of a carrier of passengers, who, at some time, may gratutiously, or without hire, furnish a hand car or other vehicle not adapted to, or intended for, the carriage of passengers, manned by a crew that had been employed simply to work on the track and run the car for their own convenience, but had never been accustomed to look after the safety of others, and had not been selected or employed for such purpose, to a greater degree of care, skill or diligence, than would be required in carrying passengers for hire on regular trains, although it might be, in fact, more dangerous to ride on such improvised conveyance than upon regular passenger coaches.

Report adopted October 28, 1887.

We find no further error in the charge of the court.

The appellant objected to the proof of all facts that occurred after the jury of inquest started south from where the body' was found, in the direction of Hunter, on the ground that said car was furnished to carry the coroner and jury to where the body was found and no further, and that anything occurring beyond this place was irrelevant. A sufficient answer to that, is that the coroner thought it was necessary to go beyond the spot of ground where the body was found, in order to develop the facts leading to the death, the cause of death, being the subject of investigation. Any other view would be exceedingly narrow and technical, and we do not think the court erred in overruling the objection.

We conclude that this case ought to be reversed and remanded on account of errors in charge of the court.

Reversed and remanded.  