# Fuller v. Southwestern Greyhound Lines, Inc. > Court of Appeals of Texas · January 6, 1960 · 331 S.W.2d 455 URL: https://www.frixlaw.com/law-library/cases/9763877 ## Case - **Full name:** Gladys Brown FULLER, Appellant, v. SOUTHWESTERN GREYHOUND LINES, INC., Et Al., Appellees - **Court:** Court of Appeals of Texas - **Decided:** January 6, 1960 - **Citations:** 331 S.W.2d 455; 1960 Tex. App. LEXIS 1954 - **Precedential status:** Published - **Opinion:** Dissent by Hughes - **Judges:** Gray, Hughes - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763877 ## Opinion text HUGHES, Justice (dissenting). If the majority holds that under the facts stated in the affidavit of appellee the elements of a joint venture are not disclosed then I am in agreement with this holding. The missing requisites are a joint undertaking in which there is a mutual sharing of losses and profits by the parties. Brown v. Cole, 155 Tex. 624 , 291 S.W.2d 704 , 59 A.L.R.2d 1011 ; McDaniel v. State Fair of Texas, 286 S.W. 513 , Dallas Court of Civil Appeals, writ refused. I am not in agreement with the majority holding that a cause of action based on *460 negligence is pleaded against appellee. In addition to the allegations of appellant, set out in the majority opinion, the following were contained in her trial petition: “On or about the 18th day of October, 1956, plaintiff was a passenger on a bus owned and operated by Greyhound, and while said bus was stopped at the bus terminal at Temple, Texas and while plaintiff was seated in said bus an employee of the defendants, a porter, boarded said bus carrying a heavy suitcase, and said employee of defendants negligently and carelessly and violently swung said suitcase into and against the side of plaintiff’s head, causing painful and serious and permanent injuries to plaintiff as hereinafter set forth. * * * * * * “Defendants’ porter hit plaintiff in the head with a suitcase. Defendants’ porter failed to keep the baggage which he was handling under proper control. Defendants’ porter took a large suitcase into the passenger area of the bus. Defendants and their agents, servants and employees failed to require the owner of the suitcase with which plaintiff was hit on the head to check said suitcase, and defendants permitted said suitcase to be carried into the passenger area of the bus. Defendants, their agents, servants and employees failed to prohibit the person carrying-said suitcase, whether employed by defendants or not, from entering the passenger area of the bus; and defendants, their agents, servants and employees failed to prevent said person from taking the aforesaid suitcase into the passenger area of the bus.” The single case relied upon by appellee to éxonerate it from a charge of negligence under the circumstances pleaded here is Airline Motor Coaches v. Caver, 148 Tex. 521 , 226 S.W.2d 830, 833 . In that case the court laid down somé basic rules which I believe to be applicable here. The facts there were that a radio fell from a baggage rack above the passenger’s head and injured her. The question presented was whether the bus company was negligent in permitting the radio to be brought aboard the bus. The question presented here is whether appellee was negligent in permitting a “heavy suitcase,” “a large suitcase,” “a suitcase of such size and weight” as to be dangerous to passengers, a suitcase “so large and so heavy that it could not safely be stored and carried in the passenger area of the bus” to be brought aboard the bus. In Airline the Court said: “No current authority need be cited for the well-known rule that, within reasonable limits, a passenger is entitled to bring luggage with him into a public conveyance, be it railway car, street car or motor bus. It was succinctly stated years ago in Gulf, C. & S. F. Ry. Co. v. Shields, 9 Tex.Civ.App. 652 [ 28 S.W. 709 ]; 29 S.W. 652 , er. ref., in which a slightly inebriated passenger named Harris brought on board with him a sack filled with iron, groceries and a jug of alcohol, the jug falling out and causing a fire that burned a fellow passenger. The latter alleged ‘that defendant negligently allowed the said sack to be brought into the said train and into the car, and placed on a seat.’ See 9 Tex.Civ.App. 652 , 28 S.W. 709 . The court on the final appeal said [ 9 Tex.Civ.App. 652 , 29 S.W. 653 ] : ‘It cannot be successfully denied that Harris had the right a,s a passenger to carry baggage on the train, and that he had the right to carry it in a sack, if he chose to do so.’ The court added: ‘We think it is equally clear that, in the absence of some information or circumstance indicating that the sack contained something dangerous to other passengers, it was not the duty of appellant’s conductor or any other employee to open *461 the sack and examine its contents.’ At the same time it is of passing interest to note that the rule has been applied not only to the sack of the poor inebriate but also to such things as a metal pipe and bag of tools carried into a city street car by a workman, Wood v. Philadelphia Rapid Transit Co., 260 Pa. 481 , 104 A. 69 , L.R.A.1918F, 817; a package containing a leather crupper for a horse, Louisville & I. R. Co. v. Rommele, 152 Ky. 719 , 154 S.W. 16 , Ann.Cas.1915B, 267; a brief case, Williams v. New Jersey-New York Transit Co., 2 Cir. 1940, 113 F.2d 649 , as well as the conventional hand bag. Jackson v. Boston Elevated R. Co., 217 Mass. 515 , 105 N.E. 379 , 51 L.R.A.,N.S., 1152; Ross v. Pennsylvania R. Co., D.C.Mun.App., 55 A.2d 346 . “It is almost superfluous to add that where the passenger brings on board what he has a right to bring, it is not negligence on the part of the carrier to permit him to bring it. * * * “If the carrier’s diligence in protecting passenger A is to be measured by a presumption that passenger B will probably so conduct himself or manage his baggage as negligently to injure A, then for all practical purposes, the carrier would be an insurer. But the presumption would seem to be just the contrary. Wood v. Philadelphia Rapid Transit Co., supra. Similarly, as in the Wood case and in Gulf, C. & S. F. Ry. Co. v. Shields, supra, the character of a piece of baggage as something rather out of the ordinary does not necessarily suggest the probability of danger when allowed to enter a public vehicle.” In Houston Electric Company v. Bragg, Tex.Com.App., 276 S.W. 641 ; 280 S.W. 188 , the court held negligence of the company to be shown by its permitting baggage to be stored in the aisle of a crowded car •where a passenger stumbled over it. In discussing this case the court in Airline said: “There is no substantial extension of the above principles involved in the Commission of Appeals’ decision of Houston Electric Company v. Bragg, 276 S.W. 641, 643 , motion for rehearing overruled, 280 S.W. 188 , heavily relied on by respondent and the final majority of the court below. In that case, a passenger was allowed to bring on board a small city street car, which was heavily crowded at the time, a definitely large type of suitcase and to take it past the only available storage space at the front into the body of the car where, being too large to be held in the owner’s lap (assuming he should find a seat), it necessarily had to be placed in the aisle in the way of passengers coming and going according to the many stops made by such a vehicle. Under these circumstances, there was held to be a fact question as to whether the motorman was not guilty of ‘lack of care in permitting the obstruction to be placed there’, the court explaining that ‘The negligence here alleged does not depend on knowledge of the presence of the obstruction after it is placed in the aisle, but is based on the anticipation of the obstruction and failure to use care to prevent it.’ This is, in different words, but another application of the rule of a dangerous situation of which the carrier knew or by the exercise of reasonable diligence would have known/ Certainly if the suitcase owner had told the motorman he was going to stow it in the aisle, or if the motorman had told the passenger so to stow it, the situation would be for all practical purposes the same as if the motorman knew it was there. The facts of the case amounted to just about that. When the passenger carried the suitcase past the space beside the motorman, which was the only place in which it could have been stowed except the *462 aisle, the motorman for all practical purposes knew it was stowed in the aisle, so as to create a dangerous hazard. In theory the case is similar to one in which the carrier’s agent sees a passenger bring a clearly dangerous instrumentality into a bus or car yet permits him to do it. Both the dangerous situation and the carrier’s knowledge of it thus begin when the article comes into the car. But let us suppose that instead of a large suitcase, the offending article in the Bragg decision had been an oversized ladies purse or a sizeable package purchased at the store, either of which could have been kept in the passenger’s arms or lap with less inconvenience than, say, holding a two-year-old child? Certainly the result would have been different, as it would also have been even with the big suitcase, if there were no evidence of a then crowded condition of the car, or if there were some other storage space available within the car — such as baggage racks of sufficient capacity. Assuming that in the case at bar the offending luggage had been an ordinary medium-sized hand bag, instead of a portable radio, a parallel with the Bragg case would exist only if the bus driver had seen the bag stowed in a dangerous manner in the rack or had negligently failed to see it so stowed; and the jury findings that he did neither would clearly have ended the litigation. As already suggested, there is no presumption, when baggage racks are provided, that the passenger will stow his luggage there in a careless manner, so as to endanger the luggage itself or the passengers, including himself. The ‘invitation’ evidence by baggage racks is no invitation to commit negligence. Even if a passenger brings aboard some article that obviously would not rest safely in a baggage rack, it is yet not ordinarily negligence merely to let him enter the vehicle with it, because the presumption is that he will not risk putting it where it plainly does not belong, unless — as in the Bragg case— special circumstances are such as to make the contrary likely to occur.” When full effect is given to appellant’s pleading it simply is that the suitcase was too large and too heavy to be safely stored in the passenger area of the bus. This was a condition which was open and obvious to anyone. At least it must be so considered in order for any omission of duty to be charged against appellee. This is necessarily so because there is no duty on its part to inspect luggage. Airline, supra. Now if the suitcase was too large and too heavy to be stored in the passenger a.rea of the bus and appellee was charged with knowledge of this fact then the same information was, perforce, intimately possessed by the porter who swung it and struck appellant in an apparent effort to store it in the baggage rack. Should appellee have anticipated this character of a negligent act by the porter? Certainly if the suitcase was too large and too heavy to be placed in the storage rack appellee might well have anticipated' that it would be stored somewhere else, on, a vacant seat, between the seats or in the aisle and if special circumstances existed,, as in Bragg, liability might arise. There are two reasons, however, for holding that there was no duty on the part of appellee to anticipate that the porter would negligently attempt to put this large and heavy suitcase in the overhead baggage: rack: (1) “ * * * there is no presumption, when baggage racks are provided,, that the passenger will stow his luggage there in a careless manner, so as to. endanger the luggage itself or the passengers, including himself. The ‘invitation’ evidence by baggage racks is. no invitation to commit negligence. (2) “Even if a passenger brings, aboard some article that obviously. *463 would not rest safely in a baggage rack, it is yet not ordinarily negligence merely to let him enter the vehicle with it, because the presumption is that he will not risk putting it where it plainly does not belong, unless — as in the Bragg case — special circumstances are such as to make the contrary likely to occur.” Airline, supra. My conclusion is that appellee was not required to anticipate that the porter would negligently strike appellant with this large and heavy suitcase in attempting to put it in the overhead storage rack where it plainly did not belong. I would affirm. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763877. Public record. Not legal advice.