KEY, Associate Justice.
— Appellee, plaintiff below, instituted this suit in the District Court of Coleman County to recover of defendant damages for personal injuries sustained while the plaintiff was a passenger on the defendant’s train, by the burning of some alcohol and other inflammable material in one of the cars, alleging that the defendant had negligently permitted a drunken man to come into the car with a large sack containing, among other things, a jug-containing alcohol; that defendant negligently allowed the said sack to be brought into the said train and into the car, and placed on a seat; that the said jug fell and broke, and the contents thereof were thrown over the floor of the car, and over the plaintiff’s shoes and
clothes; that said sack also contained iron, wood, matches, and other combustible material, aud defendant negligently permitted the contents of the said bundle to fall on the floor, igniting the same, breaking the jug, and setting the contents on fire, burning the plaintiff, and causing the inj uries complained of; and that defendant and its servants, after plaintiff’s clothes were so set on fire as alleged, negligently failed to render him any aid or assistance in extinguishing said burning material, etc.
Defendant answered by general and special exceptions, general denial, and special answer setting up contributory negligence, in that plaintiff was riding in a second-class coach, when he was entitled to ride and had full access to a first-class coach on said train, and that in the second-class coach he came in contact with a rougher element of the traveling public, and if any danger existed to plaintiff or other passengers by reason of the presence of said drunken man, or the other matters alleged in the plaintiff’s petition, that the same was well known to plaintiff in ample time to have left said car and to have avoided the danger.
A verdict and judgment were rendered for the plaintiff for $3417, from which the defendant has appealed.
Opinion.
— 1. The court below suppressed the deposition of Henry Gregg, a witness for appellant, upon the ground that said witness had failed to answer cross-interrogatory 22 propounded to him by appellee. Considering the witness’ reply to cross-interrogatory 22 and other cross-interrogatories, we think said cross-interrogatory was substantially answered, and that the court erred in suppressing the deposition. Appellee contends, that as the deposition was suppressed several months before the case was tried, and as it was not shown that appellant could not have retaken the witness’ deposition, therefore no ground for reversal exists, even though the deposition were improperly suppressed. As the case will have to be reversed upon other grounds, it is not necessary to decide whether or not this contention be correct. And the same may be said in reference to the question presented by the third assignment of error. As the argument therein complained of was founded upon the fact that appellant did not have Gregg’s evidence before the jury, and as, under the ruling just made, his deposition will doubtless be in evidence upon another trial, it is not probable that the argument complained of will be repeated.
2. Among other things, the court instructed the jury as follows: “A railroad company in the conduct and management of its passenger trains is required to have competent and careful agents, and it is the duty of such agents and employes in discharging their duties to use and exercise the highest degree of care and diligence that human judgment and foresight are capable of, to prevent the injury of any of its passengers.” In other parts of the charge, in submitting the issues directly to the jury, the same degree of care was imposed. Substan
tially the same charge was considered and condemned by this court in Railway v. Stricklin, 27 Southwestern Reporter, 1093, because at variance with the rule of liability announced in Railway v. Halloren, 53 Texas, 53, and reaffirmed in Railway v. Welch, 86 Texas, 203. It follows, therefore, that the assignments of error which complain of the charge in this respect must be sustained.
It is contended, however, by appellant’s counsel, that as to the matters complained of in this case by appellee, appellant owed him no higher duty than that of ordinary care. There are authorities which hold that the rule announced in some cases, viz., “that railway corporations are liable if they fail to exercise the highest possible care to protect their passengers,” should be restricted to matters pertaining to the construction and maintenance of roadbeds and tracks, and the equipment and operation of trains; and that, as to stational arrangements and facilities, and even as to approaches to cars, railway companies are only required to exercise ordinary care. Palmer v. Railway, 111 N. Y., 488; Kelly v. Railway, 112 N. Y., 443; Taylor v. Railway, 50 Fed. Rep., 755; Moreland v. Railway, 141 Mass., 31. And it has been held that the same rule applies where a passenger is injured by the disorderly conduct of a fellow passenger (Railway v. Minor, 11 Southern Reporter, 101); though the Supreme Court of Pennsylvania has refused to allow such an exception to the general rule of liability. Railway v. Pillow, 76 Pa. St., 510.
As to injuries caused by the operation of trains, railway companies in this State are required to exercise ordinary care to avoid injury, even to a trespasser, when he is not guilty of contributory negligence (Railway v. Sympkins, 54 Texas, 615); while their duty to passengers is defined to be, “the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances.” Railway v. Halloren, 53 Texas, 53; Railway v. Welch, 86 Texas, 203. It is true that we have been cited to no case in this State, and have found none ourselves, where this latter rule of liability has been applied when it was sought to hold the railway company responsible for injuries caused by the conduct of a fellow passenger; in fact, this question does not appear to have been authoritatively decided in this State. But whatever exception should be made, if any, from the general rule of a railway carrier’s liability to passengers as defined in the Halloren case, above cited, we are of opinion that this case falls within the general rule, and not within the exception.
The reason given for the exception, as shown by the authorities cited, and as stated in Taylor v. Railway, 50 Federal Reporter, 755, is as follows: “A carrier is held to the highest degree of care as to condition of its engines, cars, bridges, and other appliances, because negligence as to them involves extreme peril to passengers; therefore, as a passenger’s detention at a depot, or his exit to the train, is not attended with the hazards pertaining to the journey on the cars, the degree of care is
justly lessened to the extent that at such a time and at such a place the carrier is bound to exercise only a reasonable degree of care for the protection of its passengers.”
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KEY, Associate Justice.
— Appellee, plaintiff below, instituted this suit in the District Court of Coleman County to recover of defendant damages for personal injuries sustained while the plaintiff was a passenger on the defendant’s train, by the burning of some alcohol and other inflammable material in one of the cars, alleging that the defendant had negligently permitted a drunken man to come into the car with a large sack containing, among other things, a jug-containing alcohol; that defendant negligently allowed the said sack to be brought into the said train and into the car, and placed on a seat; that the said jug fell and broke, and the contents thereof were thrown over the floor of the car, and over the plaintiff’s shoes and
clothes; that said sack also contained iron, wood, matches, and other combustible material, aud defendant negligently permitted the contents of the said bundle to fall on the floor, igniting the same, breaking the jug, and setting the contents on fire, burning the plaintiff, and causing the inj uries complained of; and that defendant and its servants, after plaintiff’s clothes were so set on fire as alleged, negligently failed to render him any aid or assistance in extinguishing said burning material, etc.
Defendant answered by general and special exceptions, general denial, and special answer setting up contributory negligence, in that plaintiff was riding in a second-class coach, when he was entitled to ride and had full access to a first-class coach on said train, and that in the second-class coach he came in contact with a rougher element of the traveling public, and if any danger existed to plaintiff or other passengers by reason of the presence of said drunken man, or the other matters alleged in the plaintiff’s petition, that the same was well known to plaintiff in ample time to have left said car and to have avoided the danger.
A verdict and judgment were rendered for the plaintiff for $3417, from which the defendant has appealed.
Opinion.
— 1. The court below suppressed the deposition of Henry Gregg, a witness for appellant, upon the ground that said witness had failed to answer cross-interrogatory 22 propounded to him by appellee. Considering the witness’ reply to cross-interrogatory 22 and other cross-interrogatories, we think said cross-interrogatory was substantially answered, and that the court erred in suppressing the deposition. Appellee contends, that as the deposition was suppressed several months before the case was tried, and as it was not shown that appellant could not have retaken the witness’ deposition, therefore no ground for reversal exists, even though the deposition were improperly suppressed. As the case will have to be reversed upon other grounds, it is not necessary to decide whether or not this contention be correct. And the same may be said in reference to the question presented by the third assignment of error. As the argument therein complained of was founded upon the fact that appellant did not have Gregg’s evidence before the jury, and as, under the ruling just made, his deposition will doubtless be in evidence upon another trial, it is not probable that the argument complained of will be repeated.
2. Among other things, the court instructed the jury as follows: “A railroad company in the conduct and management of its passenger trains is required to have competent and careful agents, and it is the duty of such agents and employes in discharging their duties to use and exercise the highest degree of care and diligence that human judgment and foresight are capable of, to prevent the injury of any of its passengers.” In other parts of the charge, in submitting the issues directly to the jury, the same degree of care was imposed. Substan
tially the same charge was considered and condemned by this court in Railway v. Stricklin, 27 Southwestern Reporter, 1093, because at variance with the rule of liability announced in Railway v. Halloren, 53 Texas, 53, and reaffirmed in Railway v. Welch, 86 Texas, 203. It follows, therefore, that the assignments of error which complain of the charge in this respect must be sustained.
It is contended, however, by appellant’s counsel, that as to the matters complained of in this case by appellee, appellant owed him no higher duty than that of ordinary care. There are authorities which hold that the rule announced in some cases, viz., “that railway corporations are liable if they fail to exercise the highest possible care to protect their passengers,” should be restricted to matters pertaining to the construction and maintenance of roadbeds and tracks, and the equipment and operation of trains; and that, as to stational arrangements and facilities, and even as to approaches to cars, railway companies are only required to exercise ordinary care. Palmer v. Railway, 111 N. Y., 488; Kelly v. Railway, 112 N. Y., 443; Taylor v. Railway, 50 Fed. Rep., 755; Moreland v. Railway, 141 Mass., 31. And it has been held that the same rule applies where a passenger is injured by the disorderly conduct of a fellow passenger (Railway v. Minor, 11 Southern Reporter, 101); though the Supreme Court of Pennsylvania has refused to allow such an exception to the general rule of liability. Railway v. Pillow, 76 Pa. St., 510.
As to injuries caused by the operation of trains, railway companies in this State are required to exercise ordinary care to avoid injury, even to a trespasser, when he is not guilty of contributory negligence (Railway v. Sympkins, 54 Texas, 615); while their duty to passengers is defined to be, “the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances.” Railway v. Halloren, 53 Texas, 53; Railway v. Welch, 86 Texas, 203. It is true that we have been cited to no case in this State, and have found none ourselves, where this latter rule of liability has been applied when it was sought to hold the railway company responsible for injuries caused by the conduct of a fellow passenger; in fact, this question does not appear to have been authoritatively decided in this State. But whatever exception should be made, if any, from the general rule of a railway carrier’s liability to passengers as defined in the Halloren case, above cited, we are of opinion that this case falls within the general rule, and not within the exception.
The reason given for the exception, as shown by the authorities cited, and as stated in Taylor v. Railway, 50 Federal Reporter, 755, is as follows: “A carrier is held to the highest degree of care as to condition of its engines, cars, bridges, and other appliances, because negligence as to them involves extreme peril to passengers; therefore, as a passenger’s detention at a depot, or his exit to the train, is not attended with the hazards pertaining to the journey on the cars, the degree of care is
justly lessened to the extent that at such a time and at such a place the carrier is bound to exercise only a reasonable degree of care for the protection of its passengers.”
The injury of which the plaintiff in this case complains was caused by a jug of alcohol being spilt in the car in which he and other passengers were riding, which spread over a considerable portion of the car floor, some of which got in his shoes and upon his clothing, and by some means that portion which had spread out in front of him was ignited, thereby causing immediate combustion of all the spilt alcohol in the car, and setting his clothing on fire, etc. This accident involved not only appellee but other passengers in extreme peril. Instead of injuring one passenger, it might have injured several. The danger was possible not only to appellee but to others, and as they could not rightfully exercise any control over the passenger who brought the inflammable substance on the train, nor otherwise prevent the accident, we do not think the reason upon which the exception is founded exists; and we hold, that the degree of care prescribed in the Halloren case applies in this case also.
3. While the court’s charge on contributory negligence was a correct statement of the law, it was not as full, and did not submit the case made by the evidence as clearly and accurately as the special instruction asked by appellant on that subject; and without holding that the refusal of the requested charge constitutes reversible error, we recommend that it be given upon another trial.
4. In some other respects the court’s charge is subject to criticisms Urged against it. By implication, at least, it makes appellant liable for the failure of its employes to render prompt assistance to appellee after they discovered his danger, without reference to the danger to the employes the rendering of such assistance would have involved. But two employes of the company were in the car at the time of the accident, and, according to appellee’s own evidence, they could not have aided him when he first caught on fire without passing through the flame caused by the burning alcohol. The charge also assumes, that a failure by said employes to render prompt assistance after discovering appellee’s danger would constitute negligence. This the court had no right to assume. In this State, except where there is a failure to perform a duty imposed by statute or other written law, whether or not a given state of facts constitute negligence is a question to be determined by the jury, and not a matter of law to be declared by the court. In charging upon the phase of the case involved in the failure of appellant’s employes to render appellee assistance after his peril was discovered, the court should be careful — -as it should in submitting the question of negligence involved in any other branch of the case — to leave it for the jury to determine whether or not the facts constitute negligence. And in determining that question, it is proper for the jury to consider the situation of the parties and all the circum
stances surrounding the accident, and the court in its charge may so inform them.
5. It is urged by appellant that the evidence discloses no negligence on the part of its employes on the occasion in question, and that therefore the court below erred in not granting its motion for a new trial. We can not assume that the plaintiff will not support his case upon another trial by additional and stronger testimony; and therefore we deem it unnecessary to pass upon the sufficiency of the testimony. Testimony may be offered tending to show that one of the appellant’s employes set the alcohol on fire, or was guilty of negligence in some other pertinent respect.
For the error in the court’s charge, the judgment will be reversed and the cause remanded.
Reversed and remanded.
Delivered December 10, 1894.