GALVESTON, H. & S. A. RY. CO. v. BELL et al., 216 S.W. 390

PHILLIPS, C. J. Eliza Bell, while a passenger in a coach for negroes upon a train of the railway company, was injured by being shot during an altercation between Louis Willis and Willie Banks, two other negro passengers in the same coach. The suit was for damages on account of the injury. Willis was drunk and had been making trouble in the car, cursing, and generally conducting himself in a way offensive to the other passengers. He became insulting ⅜to-ward Willie Dibrell, a negress, a friend of Banks, and finally sat down in her lap.

Banks remonstrated with him and requested him to desist from annoying Willie Dibrell. He presently informed the conductor of Willis’ conduct and the conductor ordered, Willis to another part of the car. In a short time Willis resumed his offensive conduct and retook a seat on the arm of the seat occupied-by Willie Dibrell. The conductor was again appealed to, and he threatened Willis with arrest. He . did not eject him from the car. After the conductor left the car, Willis turned his attention to Banks.

He cursed him for having caused the conductor’s ordering him to move to another part of the car, told him he was going to kill him, struck at him and made an apparent reach for a pistol. Banks thereupon shot him in his own defense and killed him. Banks was ,not indicted. When the conductor went out of the car he left Willis in close proximity to Banks, and according to Eliza Bell’s testimony, standing near her. Eliza Bell was wounded by a stray shot from Banks’ pistol. The car was badly crowded with negro passengers. A judgment was rendered in favor of Eliza Bell and her husband.

It is urged by the railway company that if the failure of its servants to eject Willis from the car, or to resort to other means of» protecting passengers from him, was negligent, as a matter of law it is not to be regarded as the proximate cause of the injury to Eliza Bell. The test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light, of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act. The question of proximate cause here was one for the jury.

With a drunken negro of Willis’ manifest character in the car, with his conduct known to the conductor, it did not require much foresight to see that some kind of a fight at his initiative was probable and would not long be postponed. It was not necessary that the conductor be able to anticipate the exact kind of a fight or just how it would occur. . There is ample warrant in the proof for concluding that he was reasonably 'bound to anticipate Willis’ having a fight with somebody. If so, he ought reasonably to have also foreseen that some innocent passenger might be injured in the course of the fight.

That would not be an improbable consequence in a ear crowded with passengers and with a drunken negro of Willis’ sort a prime actor in the melée. The judgment of the Codrt of Civil Appeals is affirmed. ®E»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes