Denison & Sherman Railway Company v. Louis E. Carter, 98 Tex. 196

WILLIAMS, Associate Justice. This writ of error is prosecuted by the railway company from a judgment of the Court of Civil Appeals for the Fifth District affirming a judgment of the District Court against plaintiff in error in favor of Carter, suing by next friend, for damages for personal injuries caused by his being run over by one of the plaintiff in error’s electric street cars in the city of Denison.

At the time of the occurrence Carter was 10 years old, and the version of it given by him and his companions is that when the car, which was under the exclusive control of one Pratt, the motorman, reached one of the termini, where they were assembled, one of them asked Pratt if he would allow him to ride if they would turn the trolley for him, and receiving his consent, one of them turned the trolley and all of them entered the car, plaintiff and his elder brother getting upon the front platform with the motorman, and their companions upon the rear platform; that after they had ridden two or three blocks, the motorman, without stopping the car but continually increasing its speed, said to them that they had ridden far enough and directed them to get off; that after the boys in the rear had gotten off, plaintiff’s brother jumped from the front platform, and plaintiff,, in attempting to follow, was thrown under the wheels of the car and injured.

The motorman gave a different account of the transaction.

He denied giving permission for the boys to ride, stating that they turned the trolley without his consent and entered the car of their own accord, he supposing they intended to pay fare and ride into town; that as soon as he had given some information to and collected fare from another passenger, he turned his attention to the boys on the front end of the car and said to them, “If you are going to ride»get inside; if not' you must get off;” that, seeing they paid no attention to what he said, he knew they did not intend to pay fare, and began to stop the car, noticing which, and before he could stop the car, plaintiff’s brother jumped off and plaintiff followed and was hurt, the car at the time moving slowly and slowing up.

The petition asserted negligence on the part of the defendant (1) in permitting him to get upon the car, and (2) in requiring him to leave it while in motion, alleging that on account of his youth and lack of experience and discretion he was incapable of understanding the dangers he incurred in riding on the car and in attempting to alight from it under the circumstances shown.

The charge submitted both of these contentions, instructing as to the first as follows: “If you believe from, the evidence that said Henry Pratt permitted plaintiff to get on and' ride on the front platform of said car, and if you further believe from the evidence that plaintiff was a youth of such immature judgment and discretion that he did not understand the danger, if any, to which he-would be exposed in alighting from the front platform of said car-while the same was in motion, under the circumstances which you find from the evidence existed at the time he did alight from said car, and if you further believe from the evidence that the front platform of said car was a dangerous place for plaintiff to ride by reason of his immature judgment and discretion and consequent lack of understanding the danger, if any, attendant upon his alighting from said car while the same was in motion, under the circumstances then existing (if you find that he was at that time of such immature judgment and discretion) ; ■ and if you further believe from the evidence that said Henry Pratt was guilty of negligence as this term will be defined to you, in permitting plaintiff to ride-on the front platform of said car (if you-find that said Pratt did so permit plaintiff to ride thereon), and that said negligence, if any, of said Pratt was the direct and proximate cause of plaintiff’s injuries, then you will find for the plaintiff, unless you .find for the defendant under the other instructions given you.” Two-objections to this instruction were urged in the Court of Civil Appeals,, and to them we confine our attention, viz: 1. “Negligence of the motorman or driver of -the street car in permitting a child to ride upon such car when such permission is granted to subserve the purpose of the driver individually and not in transacting the business of the owner of the car, does not render such owner liable for the injuries to the child in getting on or off the car.” 2. “The evidence in this case did not raise the issue as to plaintiff having been injured by reason of his being permitted to ride at a dangerous place on the car, but only raised the issue as to his having been injured by his being caused by the motorman to leave the car while it was in motion.” 1.

It may be conceded that the agreement the motorman is alleged to have made was beyond the scope of his authority and did not create-any obligation on the part of the company to carry the boys, but it is still true that he was acting within such authority in managing and moving the car, and that for any negligence on his

part in doing that his master would be responsible. With his exclusive control of the car he necessarily had power to admit to or exclude from it persons desiring to ride on it, and to those actually on the car by his permission, whether given for one reason or another, the master, in operating it through him, might owe duties for the disregard of which it would be liable. His agreement, considered by itself, may have been his act alone, but. his management of the car was, in law, his master’s management, because that was the business intrusted to him.

Many authorities sustain the proposition that servants controlling such cars, when receiving- and carrying young children, whether with or without consideration, act within the scope of their employment and incur the obligation of' performing certain duties for the protection of the children which is ascribed to the master. Cook v. Houston Direct Nav. Co., 76 Texas, 353; Drennan v. Fairhaven, etc., Ry. Co., 45 Conn., 284; Wilton v. Railway Co., 107 Mass., 108; Pittsburg, etc., Ry. Co. v. Caldwell, 74 Pa. St., 421; East Saginaw City Ry. Co. v. Bohn, 27 Mich., 503; Richmond Traction Co. v.

Wilkinson, 101 Va., 394; Metropolitan Ry. Co. v. Moore, 83 Ga., 453; Chicago, etc., Ry. Co. v. West, 125 Ill., 320; Sanford v. Hestonville Ry. Co., 136 Pa. St., 84. The liability of the master in such cases does not arise from the mere fact of ownership of' the instrument or appliance with which the injury is inflicted, but from the servant’s negligence in doing the master’s business with such instrument or appliance, which distinguishes those decisions of this court so much relied on by counsel for plaintiff in error as conflicting with the-decision in this ease. Branch v. International & G. N. Ry.

Co., 92 Texas, 288; Dawkins v. Gulf C. & S. F. Ry. Co., 77 Texas, 229; International & G. N. Ry. Co. v. Cooper, 88 Texas, 607. In these cases the servants, in inflicting the injury, were doing nothing in furtherance of the master’s business, but were employing the master’s property for purposes wholly their own. The case of Texas & P. Ry. Co. v. Black, 87 Texas, 160, involves a different principle.

A brakeman committed an assault in ejecting the plaintiff from a freight train, and, as it was-not shown that it was within the line of his duties to expel trespassers, the court held as it did in the Anderson case (82 Texas, 516), that the-company was not responsible, unless between it and the plaintiff there-existed the relation of carrier and passenger imposing on it the duty of protection; and it was further held that such relation did not exist' because the company did not undertake or authorize its servants to-carry passengers upon its freight trains. 'Here, the purpose for which this car was intrusted by the company to the motorman was the carrying of people, and the performance of his duties, as we have said, involved the admission and exclusion of persons from the car.

Hence in receiving and carrying these children upon such a car, if he did so, he was not going beyond the scope of his master’s business, as were the servants in the Black case in receiving the plaintiff upon a freight-train; nor was he, as were the servants in the other cases relied on, using the property of the master for his own purposes. The fallacy of this contention lies in the assumption, that, because the servant permitted the boys to ride for an improper reason, in running the car he was not acting for the master.

If in the control and management of" the car he 'was guilty of negligence which caused the injury to the plaintiff, the company is responsible. 2. The objection made to the charge in the second proposition must-be sustained for the reason that the act of the motorman in permitting plaintiff to ride on the front platform of the car can not, in this case, be regarded as a proximate cause of the injury.

The authorities first cited warrant the proposition that there might be actionable negligence in permitting an immature child, incapable of earing for its own safety, to ride in such a position, when it has received an injury proximately resulting from that fact, as when it has fallen from the platform, or has been led by its childish impulses to jump therefrom. It is held that it may be negligence in those managing a-ear to allow such a child to incur the risks incident to riding in so exposed a position, and also in not exercising a careful watch and restraint over it while so riding.

We make no question as to the soundness of these doctrines when applied to some states of fact, but we do not see their application here. Ho injury resulted to the plaintiff from riding on the platform. He was hurt in jumping off, and under the facts peculiar to this case its decision turns upon the question as to the negligence vel non of the motorman in causing or permitting him to do that. He did not fall from the platform, nor jump off because the motorman lost sight of him, but claims that he was caused to jump by the motorman.

His own act in jumping was the proximate cause of his injury, and the question is solely as to the legal responsibility for that act, whether it is his or should be imputed to the company because of negligence on the part of the motorman in causing or permitting it; and that is the question that should be submitted with proper instructions to enable the jury to determine it. It is to be observed that the petition claims that there was negligence in admitting the plaintiff to the ear at all, and not that he was permitted to ride upon the front platform as an especially dangerous place.

This complaint seems to be based upon the doctrine of the “turntable cases” and others in which liability was fixed upon the owners of dangerous machinery because of enticements or invitations held out to children to expose themselves to the dangers incurred in being in or about such places.

It seems to us that doctrine is inapplicable to 'the mere act of allowing children to get upon cars fitted up and used for the conveyance of all classes of persons, old and young, experienced and inexperienced; and that actionable negligence must consist in something more, such as want of proper care in guarding the safety of those entering such vehicles, in getting on or off, or in traveling on them. Railway v. Bohn, supra; Barney v. Railway, 28 S. W. Rep., 1069. Of other rulings of the court in giving and refusing instructions plaintiff in error has no just cause to complain.

The plaintiff in error complains of the exclusion of the following ordinance in force in the city of Denison: “Any person, not being a regular employe or officer of the railway company, who shall, within this city, jump on or off, cling to or hang on any street railway car while the same is in motion, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than two dollars nor more than one hundred dollars.” We think the ordinance should have been admitted.

The objection that there was no evidence or offer of evidence that plaintiff “had discretion sufficient to understand the nature and illegality of the act constituting the offense” (Penal Code, art. 35), was not urged in the trial court, the objections made and sustained being of such a nature that an offer of further evidence on the subject would have been futile. Besides, the plaintiff testified before the jury concerning the transaction on which he based his right to recover and whether or not he had the requisite degree of intelligence was a question for the jury and not for the court.

The ruling of the court was that the ordinance was inapplicable to the facts of this case. But the facts were in dispute and the jury might have found that plaintiff got on and off the car without tlie consent of the motorman and as a trespasser. If this were true the ordinance might not be necessary to the protection of the defendant, but it was still, we think, entitled' to have it admitted in evidence and its effect explained to the jury.

We are further of the opinion that a plaintiff complaining of an injury caused or contributed to by his violation of a valid ordinance of this character should not be allowed to recover. The trial court doubtless based its ruling upon the decision of this court in the case of Mills v. Missouri K. & T. Ry. Co., 94 Texas, 242, but that decision would be applicable only in case the jury should find that plaintiff got on and off the car with permission of the motorman and in the exercise of a right.

In that case there was not, as there is in this, evidence tending to show that the conduct of the plaintiff was a trespass pure and simple. That a valid ordinance may impose a duty the violation of which proximately contributing to an injury to another constitutes negligence has often been declared by the courts of this and other States (see cases cited in 21 Am. and Eng. Enc. of Law, 478, 479); and it necessarily follows that such a violation may also preclude a plaintiff from recovering where it has contributed proximately to the injury of which he complains. International & G. N. Ry. Co. v.

Cocke, 64 Texas, 157. It is not the mere fact that, when injured, he was violating law, but the fact that his violation led* to his injury that defeats him. "Under-the charges given the jury must have determined, without considering the ordinance, that plaintiff was too young and immature to understand and protect himself against the danger of jumping from the moving car,' but they might have found differently as to his ability to comprehend the illegality of

an act coming within the terms of the ordinance had it been admitted and evidence heard upon the subject. At any rate it should have been admitted and the jury should have been instructed as to its bearing upon the case. Reversed and remanded.