Citations
- 55 Tex. Civ. App. 73
Full opinion text
SPEER, Associate Justice.
Smithfield is an unimportant place in Tarrant County on the line of the St. Louis Southwestern Railway Company a few miles from Fort Worth. It is so unimportant that the railroad company has established a rule that it will not stop its night passenger trains at the place unless someone flags them. Appellee, who lives a mile or two from Smithfield, had been summoned on a special venire in a criminal case to be tried in Judge Smith’s court, and was very anxious to take the early morning train of February 5, 1906, so as to reach Fort Worth in time for jury service. He didn’t know the exact hour when the train was. due to pass through Smithfield, but knew it was some time very early in the morning. He walked over to the station, getting there about five o’clock a. m., hut found the building dark and the door locked. He tried to arouse the sleeping agent but failed. The weather was mighty cold and he nearly froze while beating a path on the leeward side of the company’s property. When he could bear it no longer he renewed his efforts to get a friendly response from inside the building, and finally, after much kicking on the door and otherwise making a heap of racket, succeeded in waking the drowsy agent, who roared out: “Who in - are you, anyway?” To this the appellee frankly admitted that he was mighty near froze and had come down there to go to Fort Worth. At this juncture the evidence would warrant a finding that the agent tucked the covers more snugly about his Shivering form and in language more sulphurous than polite shouted back: “Well, --, hit the road; I ain’t in your way.” Appellee steadily refused to do this (at least until the next term of the District Court, when he appears to have hit it for ten thousand dollars), but on the contrary, tarried outside until the welcome rays of the morning sun began to thaw him out and the sleepy agent, faithful in his observance of the rule not to meet the night train, finally arose, opened the station building, and lighted a fire only a few minutes before the arrival of the train. Appellee never got fully warm until he reached Fort Worth and had a long spell of sickness, traceable directly to the exposure of that morning. He sued the railroad company and the jury thought he was damaged four hundred and sixty dollars, and we are satisfied he was, for the company, though it has appealed, has not intimated that he was not injured that much.
Of course, the foregoing is based on appellee’s version of the affair. The company’s agent remembers it differently. He testifies that he is not now in the employ of the company, but is visiting his parents in eastern Texas; that it was no part of his duties under his employment to make this early train; that it was his duty to meet the five-twenty evening train and to stay up at night for it if it. should be late. This evening train was late on February 4 and he had remained up until twelve o’clock, or possibly one o’clock, to meet it and for that reason had lost sleep. He did not hear anybody at the depot door on the morning of February 5 until he got up, except about five o’clock, when someone rattled on the door and he said: “What do you want?” ■ The man said he wanted to go to Fort Worth, and the witness said: