Missouri, Kansas & Texas Railway Company of Texas v. J. C. Huff, 98 Tex. 110

WILLIAMS, Associate Justice. The defendant in error received the injuries for which he recovered the judgment now before us for revision in alighting from one of defendant’s freight trains at Green-ville, to which place he had traveled on the train from Celeste. He claims that he was a passenger, while the defendant (the plaintiff in error) claims that he was on the train in violation of its rules by collusion with one of its bralcemen.

The evidence tended to show that the servants operating such trains as the one in question were prohibited to carry passengers and that they had no authority from the company to do so. And there was evidence of insistence by the company upon the observance of this rule by its employes.

A great mass of testimony .was introduced tending to show an extensive violation of such rules by the trainmen, from which plaintiff sought to raise the inference that the defendant must have known of this conduct of its employes; that it had made no reasonable effort to suppress it, and had thereby justified the belief that the carriage of passengers on such trains was authorized.

The jury could, however, have viewed this evidence as showing merely that the travel on these trains was without the consent of superior officers, and for the benefit of the trainmen who appropriated the fares paid, and that this was understood by the travelers. The questions thus arising were submitted to the jury by .instructions of which no complaint is made before this court, and we must assume that the train was one upon which a person taking passage in good faith could have lawfully become a passenger.

There was, however, the further question whether or not, under the facts shown, plaintiff acquired that relation to the company. It does not necessarily follow that because he was on a train upon which passengers could be taken that he was such.

He traveled, not upon the caboose and under the care of the conductor, but upon a flat car laden with coal, and the jury could have found that he took this position upon the direction of a brakeman who received and appropriated his fare, and when he arrived at Greenville he was hurt because of his being at that place in the train while alighting, still under the direction of the brakeman and without the knowledge of the conductor.

The question whether or not the relation of passenger and carrier ever arose between him and the railway company was thus made prominent, and this' depends upon the authority of the brakeman to bind the-company by receiving him at such a place in such a train. Certainly it is not to be presumed either that the brakeman had authority to make a contract of carriage at all or that a traveler could acquire the rights of a passenger by getting and remaining in such a car. International & G. N. Ry. Co. v. Anderson, 82 Texas, 516; Missouri K. & T. Ry. Co. v. Williams, 91 Texas, 255; Texas & P. Ry. Co. v.

Black, 87 Texas, 160. The burden was upon the plaintiff to make it appear not only that passengers had the right to take passage on such a train, but that the employe who contracted to let him ride at that unusual place had real or apparent authority from the company to make such a contract.

Upon this subject the court gave, at plaintiff’s request, the following special charge: “If you find from the evidence that the defendant was a common carrier of passengers for hire on the 16th day of March, 1903, and was using for that purpose the kind of freight train that plaintiff boarded in accordance with the instructions given you in the general charge; and if you find from the evidence that plaintiff approached J. F. Haddock and was-authorized by him to board said train and yóu find that plaintiff paid the fare to him; and if you further find that J. F.

Haddock was a brakeman on said train, and had no express authority to invite persons on said train or to collect fares; and you find that the conductor of said train had no knowledge of plaintiff’s presence on said train, and did not authorize him to board said train; yet if you find from the evidence that the defendant’s brakemen on its freight trains on its lines in Hunt County were exercising such authority or performing such duties for such a length of time that the defendant, in the proper conduct of its business must have known of such facts, then and in that event the plaintiff had the right to presume that such servant was authorized to perform such duties.” We are of opinion that this charge is erroneous for several reasons.

First, it declares, as a matter of law, that from the facts stated the plaintiff was authorized to presume authority in the brakeman, when the question was for the jury itself to determine whether or not such facts as the evidence disclosed justified an inference of such authority in a person of ordinary prudence.

Second, it authorizes such presumption on plaintiff’s part, without regard to circumstances, which there was evidence tending to show, from which plaintiff may have been sufficiently informed that this brakeman was acting in violation of his duty to his employer in his own behalf and for his own private gain. Third, it excludes from consideration evidence tending to show that the supposed course of conduct of brakemen was very difficult to prevent and was pursued in spite of efforts on the part of their superiors to suppress it.

Fourth, it is not true that the inferepce of authority to do such forbidden acts would necessarily arise from the mere facts that they were done and the company knew it. Those facts might exist while the company was doing enough to show that it was not acquiescing but was endeavoring to enforce its rules and suppress violations of them.

It must be remembered that no one would be authorized to presume, without evidence, that a brakeman has authority to make such a contract of carriage express or implied as that which is claimed to have arisen in this case, and he who asserts such authority has the burden of showing it otherwise than by inference arising from the position held by such an employe, because no such inference arises from the character of the employment.

It is true that the evidence tends to show that this brakeman represented himself to the plaintiff to be the conductor, but other questions would arise as to the effect of that fact to which this charge is not .addressed, and which therefore "are not before us for consideration. The charge was well calculated to deprive the defendant of the judgment of the jury upon the several matters which we have pointed out, if not others, and can not be held harmless in a case like this where most of the facts which plaintiff must establish are, to say the least, debatable.

ISTor does the reference to the general charge . relieve the special instruction of its erroneous features, the reference being only to those parts of the general charge relating to the question whether or not the freight train carried' passengers, and not to any instruction concerning the authority of the brakemen. Reversed md remanded.