R. F. Harris v. M. G. Howe, Receiver, 74 Tex. 534

Henry, Associate Justice. This suit was brought by appellant against the appellee, as receiver of the Houston East & West Texas Railway Company, to recover damages.

Appellant charges that appellee, through its agent at Timpson, Texas, made with her an express contract to transport her and her three small children from Timpson, Texas, to Bolivar, Tennessee, as first class passengers in first class coaches, for which appellant paid appellee in advance the compensation demanded, and that in disregard of such contract she and her children were compelled by a conductor on the route to leave the first class coach and enter the smoking car of the train on Avhich they were being transported, and remain there from 11 o’clock at night until 10 o’clock the next day under circumstances and surroundings described as being very uncomfortable and disagreeable.

The evidence shows that appellant purchased from appellee a coupon ticket from Timpson, Texas, to Bolivar, Tennessee, paying it the price asked for it; that appellant asked appellee’s agent who sold her the ticket if it was a first class one, and he informed her' that it was and would carry her through all right Avithout any trouble Avhatever. The coupons Avere for passage over the Houston East & West Texas Railway, the Vicksburg, Shreveport & Pacific Railway, and the Illinois Central Railway.

The price paid was the full local fare of each road added together, and the gross sum to which it Avas entitled Avas paid by the road receiving it to each of the other roads. Appellant was received and transported over the first two roads as a first class passenger, but when she reached the Illinois Central, notAvithstanding the ticket that she presented entitled her to travel in its first class cars, the conductor insisted that it did not, and compelled her to go into a second class car and stay there under the circumstances alleged in her petition.

The ticket is made part of the statement of facts, and among other printed clauses contains one in the following Avords: “ That in selling this ticket the Houston East & West Texas Railway Company acts only as agent, and is not responsible beyond its OAvn line.” The court charged the jury to find for defendant. The question of the liability of a railroad selling a through ticket beyond its own terminus and over connecting roads has been much discussed and different opinions have prevailed.

The same question has arisen with regard to the liability of the receiving company for freight shipped beyond its own terminus over connecting lines of transportation, but the existence of such liabilty when assumed by contract seems noAV too firmly established to justify further discussion. There exists respectable authority to the effect that a distinction exists in this respect between the carriage of goods and of passengers. Hutch. on Carr., 464; 2 Redf. on Rys., p. 313. Other authorities hold that there are no substantial distinctions between the rules governing the two subjects. Quimby v. Vanderbilt, 17 N.

Y., 313. In principle we can see no distinction. It has been contended that it is ultra vires for railroad corporations to contract to carry beyond their own lines, but the great weight of authority unquestionably is that however that may be, the carrier that engages in such an undertaking is estopped from denying its obligation to perform it.

In Hutchinson on Carriers, page 117, it is said with regard to the carriage of goods: “It is universally conceded that he may bind himself by an express contract to carry to any distance or to any destination, whether the carriage can be accomplished by his own means of conveyance upon his own route, or will require the employment of agents or subsidiary carriers beyond it.

In this respect he may bind himself to the same extent as other contracting parties, even to the performance of impossibilities, if he will.” The obligation to convey passengers over its own line not only exists as .a public duty independently of any contract to do so, but from considerations of public policy it can not even be modified by contract so as to exempt the carrier from the duty to protect the passenger from consequences of the negligence of its agents and servants. G. C. & S. F. Ry. v. John McGown, 65 Texas, 640. Beyond its own line a different rule in some respects prevails.

It is only because the carrier has voluntarily contracted to do so that it can be required to transport a passenger over any other than its own line, and it results that, like other contracting parties, it may define the terms ;and limit the extent of its undertaking over other lines, insomuch as may be required to leave upon them the responsibilities of their own negligence. The case of the Pennsylvania Central Railroad Company v. Schwarzenberger, 45 Pennsylvania State, 208, was for the recovery of damages for the loss of baggage.

The ticket sold by defendant to the passenger contained a stipulation as follows: “In selling this -ticket for passage over roads west of Pittsburg the Pennsylvania Railroad Company acts only as agent for the western lines, and assumes no responsibility west of Pittsburg.” The court says: “'The defendants are not common carriers except between Philadelphia and Pittsburg. They were under no obligation to carry plaintiff beyond the termination of their route, or to transport his baggage.

It is true they received the fare for the whole distance from Philadelphia to Cincinnati, and if that were all it might raise a presumption of an agreement to carry over the'entire route between the two cities. But contemporaneously with the receipt of the fare, and as evidence of the contract into which they entered, they gave to the plaintiff a ticket informing him that they assumed no responsibility for his carriage, and of course for the carriage of his baggage, beyond Pittsburg.

They notified him that they acted only as agents for the carriers whose route extended west from Pittsburg, and not at all for themselves. With this express disclaimer of personal liability there is no possibility of implying an engagement. It is not to be doubted that the defendants could act as agent for a connecting railroad line, and if they could, the contract for carriage between Pittsburg and Cincinnati was with the-principals of defendants and not with themselves.

Their own engagement was performed when they had transported plaintiff to Pittsburg- and delivered his baggage to the carriers on the connecting railroad beyond leading to Cincinnati. A carrier may not release himself from responsibility for want of ordinary care. Here, however, was no attempt by defendants to limit their responsibility as common carriers.

There was nothing more than an express refusal to assume an additional and unusual liability—a careful guarding against the implication of a contract, which without the notice might have arisen from the fact that the-passage money for the entire distance to Cincinnati was here received. This is the whole case. The plaintiff breaks down in the- beginning. He fails to prove that these defendants contracted to carry him and his baggage beyond Pittsburg.

His remedy, therefore, is not against them,, but against the company which undertook for that portion of the route, upon which the carpetbag was lost.” It is equally clear in the case before us that the defendant’s liability for negligence was by the express terms of the contract confined to its own line, and that it made the contract for the transportation of the passenger over the line where the alleged wrong was committed only as the agent of the corporation operating such line; and we conclude that not being bound by its charter as a public carrier, or by contract, express- or implied, to transport plaintiff over the Illinois Central Railroad, the defendant was not liable in this action and the court properly so charged, the jury.

If any negligence of defendant in issuing the ticket had been the proximate cause of the -wrong to plaintiff the rule would be otherwise. Upon the material issues in the case there is no controversy about the-facts or conflicting evidence. The judgment is affirmed. Affirmed. Delivered October 18, 1889.