This is a suit brought in the District Court of Smith County against the appellant railway company, for damages on account of personal injuries. The petition alleged as *Page 511 the cause of action, in substance, that on August 16, 1891, the appellee took passage upon the cars of the railway company at Winona Camp Ground, in Smith County, for Tyler; that the train was a local freight train, and when the appellee entered the cars the caboose in the train was so crowded that there was not sitting or standing room in the caboose or platforms, and that he, with others, went upon the top of the caboose, at the invitation of the conductor, and took a seat upon the cupola of the caboose. He further charged, that there were no accommodations for passengers provided, other than the caboose; that pressing business made it necessary for him to come to Tyler, and on that account alone he took passage upon top of the cupola of the caboose; that after the train had proceeded a few miles nightfall came on, and while it was dark and the train was running at a high, unusual, and dangerous rate of speed, his head came suddenly in violent contact with a heavy iron pipe extending from a water tank, and he was painfully, seriously, and permanently injured. It was also alleged, that the water spout was defective and out of repair; that it should have been in a perpendicular position by the tank, and some distance from the track, while it was negligently allowed to hang out over the track, etc. The case was tried, resulting in a verdict and judgment in favor of appellee for $1000, from which this appeal has been perfected.
There are several errors assigned as to the admission of certain testimony, over objections of appellant; but they are without merit, and will not be discussed.
The court defined negligence as follows: "By ordinary care, is meant that degree of care which may be reasonably expected of a person in the situation of the plaintiff at the time the injury was received, and negligence is the absence of ordinary care."
This charge is complained of by appellant, and we think justly so.
Under the law, "ordinary care is the care that a person of ordinary prudence would exercise under the same circumstances." Railway v. Finley, 79 Tex. 85. The charge fixes no criterion or measure to guide the jury in determining what degree of care was necessary to be used under the circumstances. From the charge, the jury were unable to decide whether the care necessary was such as an ordinarily prudent person would use under similar circumstances, or whether it was such as might be reasonably expected of an imprudent or reckless person. An imprudent or reckless person would reasonably be expected to take more risk of injury than one of ordinary prudence. We think the charge misleading, for it was shown that quite a number of other persons besides plaintiff were riding upon top of the caboose; and the jury, under the instructions given, may have readily concluded that the conduct of such parties could be taken as a correct standard by which to determine the negligence of plaintiff, and whether such conduct was that of an ordinarily prudent person or not. The error is more hurtful, from the fact that the court throughout its *Page 512 charge used the terms "ordinary care" and "negligence" without further definition than that here complained of.
Appellant's eleventh assignment of error is: "The court erred in that part of its main charge wherein the jury was instructed as follows: `It was the duty of defendant company to use ordinary care to construct and maintain its water tanks and fixtures so as to avoid injuries to its passengers, and if it fails so to do, and a passenger is injured, they will be liable; if you find that the water tank was properly constructed and properly maintained, and it was thrown out of fix by some person not a servant, agent, or employe of defendant company (that is, by some stranger), then defendant company would not be liable, and you will find for defendant.'"
Appellant's twelfth assignment of error is: "The court erred in its main charge, wherein the jury, among other things, was instructed as follows: `If, however, you find that plaintiff was not guilty of negligence in going upon the car and riding upon the cupola, and you further find that the conductor knew that the water spout was out of repair before the train arrived at said tank, then defendant can not be relieved on the ground that the spout was thrown out of fix by a stranger, under the rule above given.'"
The first paragraph or section specifying the duty of the railway company as to the construction and maintenance of its water tanks is correct, as an abstract proposition of law, but should not have been given in this case, unless it was shown that the top of the car was prepared by the company for the accommodation of passengers. If the top of the caboose was not constructed for the accommodation of passengers, and if it was against the rules of the company to allow passengers to ride on top of the caboose, they would not be expected to construct their tanks with a view of preventing injuries to passengers, and one so riding on top of a caboose under such circumstances would assume the risk of injury incident to such a position.
The other portion of the charge was not applicable, as there was no evidence tending to show that the conductor knew the spout was not in proper condition. Railway v. Rider, 62 Tex. 267.
There were various special charges asked by appellant and refused by the court. We will not attempt to discuss all of them separately; but think it sufficient to specially call attention to only two of them, the discussion of which, however, will convey our views of the law governing the case. The first charge is:
"If you believe from the evidence that plaintiff, before the train pulled out from the camp ground, voluntarily took a place upon top of the cupola of the car, and that the place so occupied by him was not one allotted to or provided for the carriage of passengers, and that the place so occupied by him was one of obvious danger, and that by so occupying said place he was injured, then you will return a verdict for the defendant, and this though you may believe from the evidence that *Page 513 owing to the extraordinary influx of passengers at the camp ground it was impossible for plaintiff to find room in the car."
The second is: "That the consent of the conductor would not excuse or justify the plaintiff in occupying a position on the cupola of the caboose, and defendant would not be liable for any injuries received in consequence thereof, if the position was one that a man of ordinary prudence would not have occupied."
While the court instructed the jury that plaintiff could not recover if he "was negligent in going upon the top of the car and remaining there until he was injured, and his negligence was the proximate cause of the injury," there was no application of the law in the general charge to the facts, as is embraced in the special charges asked.
Appellee's excuse for riding on top of the car is that the car was crowded, and there was not room on the inside. The evidence is conflicting on this point; but if true, it is no defense, if the top of the car was a place of danger, and not allotted by the carrier for the use of passengers, and plaintiff's injury would not have resulted had he not been on top of the cupola. There not being room in the caboose would not justify plaintiff in assuming a position of obvious danger, nor would the consent of the conductor relieve him from using that degree of care that would have been exercised by a person of ordinary prudence under similar circumstances. Some of the evidence showed that there was room in some of the cars sufficient to accommodate the plaintiff.
The following quotation from the foot notes to the case of Waterbury v. Railway, 17 Federal Reporter, 685, expresses our views as to the correct rule in cases like this:
"If a passenger, even at a time when many of the cars are crowded in consequence of an extraordinary influx of passengers, voluntarily remain on the platform at a time when he might, by the exercise of reasonable diligence and exertion, find room within some of the cars of the train, and in consequence of being so upon the platform, is thrown or pushed off by the ordinary movements of the train, whereby he sustains injury, he can not recover damages from the company; and this is so, although he may not have actually known that there was any room for him in any of the cars, provided the circumstance were such that he might have discovered this by reasonable observation and effort."
The case of Railway v. Boyd, 6 Texas Civil Appeals, 205, rendered by this court, is one where a passenger was riding on the engine instead of in the coach. There was a wreck, in which the party on the engine was injured. In that case the decision of our Supreme Court, as well as some of other jurisdictions, are reviewed, and this court in effect held, that when a passenger voluntarily takes a more hazardous place upon the train to ride than was provided by the carrier for passengers, and such hazard was known, or might have been known by the use of *Page 514 ordinary care, he thereby assumes the risk of the increased danger of such position.
In the case of Hickey v. Railway, 14 Allen, 431, the court uses the following language: "If sufficient and suitable provisions be made within the cars for all passengers, the managers of the train are not under obligations to restrict them to the proper place, nor to prevent them from acts of imprudence. If they voluntarily take exposed positions, with no occasion therefor nor inducement thereto caused by the managers of the road, except the bare license of noninterference or express permission of the conductor, they take the special risks of that position upon themselves."
For the failure of the court to give the law of the case applicable to the facts, as indicated in the foregoing, the judgment is reversed and the cause remanded.
Reversed and remanded.