GAINES, Chief Justice.
This suit was brought by the defendant in error against the plaintiff in error to recover damages for the discomfort and sickness of himself and of his wife alleged to have been caused by the failure to make comfortably warm the car in which they were being carried as passengers under a contract with the defendant company. The plaintiff recovered a judgment which upon appeal was affirmed by the Court of Civil Appeals.
The plaintiff, in the month of December, 1901, bought of the defendant’s agent, at the town of Winnsboro, Texas, round-trip tickets for himself and wife over the defendant’s road and its connecting lines to the town of Geneva, in Georgia. On the afternoon of the 24th day of the month they accordingly took passage at Winnsboro on the train of the defendant company for their destination under the contract. About nightfall of that same day they reached Shreveport, the end of the defendant’s line. The car on which they took passage and were being carried was there transferred to the next connecting carrier, and they proceeded in the same car in a continuous journey to Meridian, Miss., where it was dropped out and they were transferred to another. So far the evidence is not disputed. But as to the condition of the car with respect to its warmth from the time it left Winnsboro until its arrival at Shreveport, the testimony is sharply conflicting. Neither is the testimony in accord as to its condition after leaving Shreveport, though there was much testimony tending to show that during the night after leaving that place it became quite cold and that there was no attempt except on the part of the passengers to heat it. The plaintiff and his wife each testified in effect that they suffered from the cold from the time they left Winnsboro until they reached Meridian, and that by reason of the exposure they were made seriously sick.
There was evidence tending to show that the car contained a stove and also pipes, presumably originally provided for the purpose of heating it, but that the pipes were broken and that no fuel was provided by the servants of either of the companies to make a fire in the stove save some shavings and fragments of broken boxes. There was testimony, however, to the effect that after leaving Shreveport some of the passengers procured some coal from a coal car on the track and made a fire in the stove, and that this kept the car in a reasonably comfortable condition while the fire lasted. In reference to this matter we think the evidence was such as would have justified the jury in finding that the car could have been kept heated by providing and using the proper fuel for that purpose.
The tickets which the plaintiff bought and upon which he and his
wife were being carried were contract tickets and were signed by him and his wife respectively, and each contained the stipulation that the defendant company should not be responsible beyond its own line.
Testimony was admitted showing that the defendant, in advertising for the trip, stated that the passengers would be carried through without a change of car, and it was also testified that an agent of defendant made the same statement to a passenger while negotiating for the purchase of a ticket.
Such being the testimony, the trial judge in his charge to the jury, after defining the duty of a carrier of passengers, instructed them as follows: “Now if you believe from the evidence that on December 21, 1901, the weather was cold and disagreeable, and you believe the servants of the defendant failed to provide the plaintiff and his wife with a reasonably warm and comfortable car to ride in from Winnsboro to Shreveport, and that on said trip to Shreveport 'the plaintiff and his wife were compelled to ride in a car that was cold and uncomfortable, and if you believe in consequence thereof the plaintiff and his wife, or either of them, became cold and thereby suffered from being cold, and you believe the servants of the defendant were guilty of negligence (as that term is above defined) in failing to furnish plaintiff and his wife with a reasonably warm and comfortable car (if you find they so failed), and if you believe the negligence (if any) of the defendant was the direct and proximate cause of the suffering (if any) of the plaintiff and his wife or either of them, then you will find for the plaintiff such sum as will now in cash compensate the plaintiff for the pain and suffering (if any) of himself and wife, or either of them, in consequence of getting cold in said car; but unless you so believe you will find for the defendant. If you find for the plaintiff on the issue last above submitted, and you further believe, that, in consequence of getting cold in said car from Winnsboro to Shreveport, the plaintiff and his wife or either of them contracted cold, and you believe such cold resulted in sickness to the plaintiff and his wife, or either of them, as alleged by the plaintiff, and you believe the cold and sickness of plaintiff and his wife, or either of them (if any), was directly and solely caused by the negligence (if any) of the servants of the defendant on its own line; or if you believe the employes of the connecting carriers or either of them failed to furnish the plaintiff and his wife with a reasonably warm and comfortable car to ride in after they left Shreveport, and you believe the plaintiff and his wife were compelled to ride in a cold and uncomfortable car after leaving Shreveport, and you believe the servants of the connecting carriers, or either of them, were guilty of negligence (as that term is hereinbefore defined) in failing to furnish the plaintiff and his wife with a reasonably warm and comfortable car (if you find they so failed), and if you believe the negligence (if any) of the defendant on its own line, as above explained, concurring with the negligence (if any) of the connecting carriers or either of them, was the cause of the sickness of the plaintiff and his wife or either of them, then you will also
find for the plaintiff such sum as will now in cash compensate the plaintiff for the physical pain and mental anguish (if any) that he and his wife, or either of them, suffered and will suffer in consequence of such sickness (if any) and the effect (if any) of plaintiff’s sickness upon his ability to labor and earn money, and all necessary and reasonable sums he has paid or incurred for medicine and doctor’s bills, for himself and wife in consequence of such sickness. But if you believe from the evidence that the defendant furnished the plaintiff and his wife with a reasonably comfortable car to ride in from Winnsboro to Shreveport, then the defendant performed all the duty it owed plaintiff, and if you so believe your verdict will be for the defendant. Or if you believe the defendant did fail to furnish the plaintiff and his wife a reasonably comfortable car from Winnsboro to Shreveport, and was negligent, and that the plaintiff and his wife suffered with cold on the trip to Shreveport, yet you will find for the defendant on the issue of siclmess, unless you further believe the negligence (if any) of the defendant on its own line contributed to cause arid concurred in causing the sickness. Or if you believe the negligence (if any) of the. connecting carriers alone was the cause of the sickness, you will find for the defendant on the issue of sickness.”
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GAINES, Chief Justice.
This suit was brought by the defendant in error against the plaintiff in error to recover damages for the discomfort and sickness of himself and of his wife alleged to have been caused by the failure to make comfortably warm the car in which they were being carried as passengers under a contract with the defendant company. The plaintiff recovered a judgment which upon appeal was affirmed by the Court of Civil Appeals.
The plaintiff, in the month of December, 1901, bought of the defendant’s agent, at the town of Winnsboro, Texas, round-trip tickets for himself and wife over the defendant’s road and its connecting lines to the town of Geneva, in Georgia. On the afternoon of the 24th day of the month they accordingly took passage at Winnsboro on the train of the defendant company for their destination under the contract. About nightfall of that same day they reached Shreveport, the end of the defendant’s line. The car on which they took passage and were being carried was there transferred to the next connecting carrier, and they proceeded in the same car in a continuous journey to Meridian, Miss., where it was dropped out and they were transferred to another. So far the evidence is not disputed. But as to the condition of the car with respect to its warmth from the time it left Winnsboro until its arrival at Shreveport, the testimony is sharply conflicting. Neither is the testimony in accord as to its condition after leaving Shreveport, though there was much testimony tending to show that during the night after leaving that place it became quite cold and that there was no attempt except on the part of the passengers to heat it. The plaintiff and his wife each testified in effect that they suffered from the cold from the time they left Winnsboro until they reached Meridian, and that by reason of the exposure they were made seriously sick.
There was evidence tending to show that the car contained a stove and also pipes, presumably originally provided for the purpose of heating it, but that the pipes were broken and that no fuel was provided by the servants of either of the companies to make a fire in the stove save some shavings and fragments of broken boxes. There was testimony, however, to the effect that after leaving Shreveport some of the passengers procured some coal from a coal car on the track and made a fire in the stove, and that this kept the car in a reasonably comfortable condition while the fire lasted. In reference to this matter we think the evidence was such as would have justified the jury in finding that the car could have been kept heated by providing and using the proper fuel for that purpose.
The tickets which the plaintiff bought and upon which he and his
wife were being carried were contract tickets and were signed by him and his wife respectively, and each contained the stipulation that the defendant company should not be responsible beyond its own line.
Testimony was admitted showing that the defendant, in advertising for the trip, stated that the passengers would be carried through without a change of car, and it was also testified that an agent of defendant made the same statement to a passenger while negotiating for the purchase of a ticket.
Such being the testimony, the trial judge in his charge to the jury, after defining the duty of a carrier of passengers, instructed them as follows: “Now if you believe from the evidence that on December 21, 1901, the weather was cold and disagreeable, and you believe the servants of the defendant failed to provide the plaintiff and his wife with a reasonably warm and comfortable car to ride in from Winnsboro to Shreveport, and that on said trip to Shreveport 'the plaintiff and his wife were compelled to ride in a car that was cold and uncomfortable, and if you believe in consequence thereof the plaintiff and his wife, or either of them, became cold and thereby suffered from being cold, and you believe the servants of the defendant were guilty of negligence (as that term is above defined) in failing to furnish plaintiff and his wife with a reasonably warm and comfortable car (if you find they so failed), and if you believe the negligence (if any) of the defendant was the direct and proximate cause of the suffering (if any) of the plaintiff and his wife or either of them, then you will find for the plaintiff such sum as will now in cash compensate the plaintiff for the pain and suffering (if any) of himself and wife, or either of them, in consequence of getting cold in said car; but unless you so believe you will find for the defendant. If you find for the plaintiff on the issue last above submitted, and you further believe, that, in consequence of getting cold in said car from Winnsboro to Shreveport, the plaintiff and his wife or either of them contracted cold, and you believe such cold resulted in sickness to the plaintiff and his wife, or either of them, as alleged by the plaintiff, and you believe the cold and sickness of plaintiff and his wife, or either of them (if any), was directly and solely caused by the negligence (if any) of the servants of the defendant on its own line; or if you believe the employes of the connecting carriers or either of them failed to furnish the plaintiff and his wife with a reasonably warm and comfortable car to ride in after they left Shreveport, and you believe the plaintiff and his wife were compelled to ride in a cold and uncomfortable car after leaving Shreveport, and you believe the servants of the connecting carriers, or either of them, were guilty of negligence (as that term is hereinbefore defined) in failing to furnish the plaintiff and his wife with a reasonably warm and comfortable car (if you find they so failed), and if you believe the negligence (if any) of the defendant on its own line, as above explained, concurring with the negligence (if any) of the connecting carriers or either of them, was the cause of the sickness of the plaintiff and his wife or either of them, then you will also
find for the plaintiff such sum as will now in cash compensate the plaintiff for the physical pain and mental anguish (if any) that he and his wife, or either of them, suffered and will suffer in consequence of such sickness (if any) and the effect (if any) of plaintiff’s sickness upon his ability to labor and earn money, and all necessary and reasonable sums he has paid or incurred for medicine and doctor’s bills, for himself and wife in consequence of such sickness. But if you believe from the evidence that the defendant furnished the plaintiff and his wife with a reasonably comfortable car to ride in from Winnsboro to Shreveport, then the defendant performed all the duty it owed plaintiff, and if you so believe your verdict will be for the defendant. Or if you believe the defendant did fail to furnish the plaintiff and his wife a reasonably comfortable car from Winnsboro to Shreveport, and was negligent, and that the plaintiff and his wife suffered with cold on the trip to Shreveport, yet you will find for the defendant on the issue of siclmess, unless you further believe the negligence (if any) of the defendant on its own line contributed to cause arid concurred in causing the sickness. Or if you believe the negligence (if any) of the. connecting carriers alone was the cause of the sickness, you will find for the defendant on the issue of sickness.”
The contract in this case being in writing, we are inclined to the opinion, that, for its terms, the writing alone should be looked to, and that it was not competent to import into the agreement by parol testimony a stipulation that the plaintiff and his wife were to be carried to their destination in the same car. But we also think that if there was an agreement between the defendant company and the connecting lines for the use of the one car for the through trip, the initial carrier would be Rabie for the consequences of having furnished a car for the purpose which was not capable of being made comfortably warm. But it was the duty of its connecting carriers to use the highest degree of care to preserve the comfort of their passengers, and therefore, we are of the opinion, that, if the car furnished by the defendant company was capable of being made comfortable by such degree of care, it could not be held liable for their negligence in that "particular. It follows, as we think, that the responsibility of the defendant for any injury the plaintiff and his wife may have received after leaving its line depended upon the character of the car in which they were carried. If it could have been heated by the exercise of that high degree of diligence demanded of the servants of its connecting carriers, the defendant would not be liable for the negligence of the latter. On the other hand, we are of the opinion that if the car was not capable of being heated by the exercise of such diligence, the initial carrier would be responsible for the discomfort and any consequent injuries to the health of plaintiff and his wife accruing on that line.
The latter part of the charge quoted seems to indicate that the learned trial judge had this distinction in view while instructing the jury. But if so in a previous portion of the charge he seems to have lost sight
of the distinction. The instruction referred to is that which reads as follows: "Or if you believe the employes of the connecting carriers or either of them failed to furnish the plaintiff and his wife with a reasonably warm and comfortable ear to ride in after they left Shreveport, and you believe the plaintiff and his wife were compelled to ride in a cold and uncomfortable car, after leaving Shre report, and you believe the servants of the connecting carriers, or either of them, were guilty of negligence (as that term is hereinbefore defined) in failing to furnish the plaintiff and his wife with a reasonably warm and comfortable car (if you find they so failed), and if you believe the negligence (if any) of the defendant on its own line "as above explained, concurring with the negligence (if any) of the connecting carriers or either of them, was the cause of the sickness of the plaintiff and his wife, or either of them, then you will also find for the plaintiff such sum as will now in cash compensate the plaintiff for the physical pain and mental anguish (if any) that he and his wife, or either of them, suffered and will suffer in consequence of such sickness (if any) and the effect (if any) of plaintiff’s sickness upon his ability to labor and earn money, and all necessary and reasonable sums he has paid or incurred for medicine and doctor’s bills for himself and wife in consequence of such sickness.” This was capable of the construction (if indeed it admits of any other) that if the defendant company failed to furnish a comfortable car to Shreveport, and if after leaving that point the connecting carrier also so failed, and the two causes combined and contributed to produce the sickness of which complaint was made in the petition, the defendant was liable for all the consequences of the combined neglect. We think that this was error.
Therefore the judgment is reversed and the cause remanded.
Reversed and remanded.