El Paso & Northeastern Railway Co. v. Sawyer (54 Tex. Civ. App. 387, 1909)

NEILL, Associate Justice.

—This is a companion case of No. 4139, decided today, and was brought by appellee to recover damages sustained by him as a passenger en route from Pittsburg, Pennsylvania, to Los Angeles, California, by the derailment in the Territory of New Mexico of áppellant’s train in which he was being carried to his destination. The plaintiff’s petition contains two counts; the first declares on a breach of contract for safe carriage and the second for a- tort arising from the negligent derailment of the train. On account of this court having held in the companion case (Sawyer v. El Paso & N. E. Ry. Co., 49 Texas Civ. App., 106), that the right of action as for a tort was defeated by a certain statute of New Mexico, referred to and discussed in that opinion, but that such statute did not preclude the right of action for a breach of the contract made in the State of Pennsylvania for safe carriage, the case was tried on the first count and resulted in a judgment and verdict in plaintiff’s favor for the sum of $750.

The contract declared on was indisputably proved, its breach indubitably shown by the derailment of the train and the consequent injury to plaintiff. The contention, however, of appellant is that in an action for a breach of the contract, no recovery can be had for the personal injuries inflicted upon the passenger resulting from the breach, but that he can only recover for what he paid" for the ticket entitling him to transportation and any additional personal expenses incurred by reason of loss of time.

The leading case on the subject of damages arising from a breach of contract is Hadley v. Baxendale, 9 Exch., 341, 23 L. J. Ex., 179. In that case the rule is thus stated: