8 S.W. 491 (Tex. 1888), Hays v. Gainesville St. Ry. Co.

Citation:8 S.W. 491, 70 Tex. 602
Opinion Judge:[70 Tex. 604] MALTBIE, J. STAYTON, C.J.
Attorney:[70 Tex. 603] E. A. Blanton and Hill & Hill, for appellant. Patter & Hughes, for appellee.
Case Date:May 01, 1888
Court:Supreme Court of Texas

Page 491

8 S.W. 491 (Tex. 1888)

70 Tex. 602




Supreme Court of Texas.

May 1, 1888

Commissioners' decision. Appeal from district court, Cooke county.

Action by Reese A. Hays, a minor, by his next friend, L. R. Hays, against the Gainesville Street-Railway Company, for personal injuries. Judgment was entered on a verdict for defendant, and plaintiff appeals.

[70 Tex. 603] E. A. Blanton and Hill & Hill, for appellant.

Patter & Hughes, for appellee.

[70 Tex. 604] MALTBIE, J.

Reese A. Hays, the appellant, a boy 11 years old, was seriously injured by reason of the wheels of one of the cars of the Gainesville

Page 492

Street Railway running over his foot, under the following circumstances: Appellant, in company with a number of other boys, was returning from school along North Dixon street, in the city of Gainesville, over which appellee had constructed its street railway, and was engaged in operating its cars. Hays was in the street on the west side of appellee's track, going in the direction of his home, which was south-east of the track. At the same time, one of appellee's cars was approaching from the north, drawn by a mule, going in a slow trot. Hays and a boy named Purdy were playing; the former running along, and within a few feet of the street-car track, closely pursued by Purdy, who was about to overtake him, when Hays turned suddenly to the left, colliding with the mule drawing the car, striking the mule about the shoulders, causing him to shy, which caused Hays to fall. The mule moved on, drawing the car over Hays' foot and ankle, fracturing the bone, and causing much pain and suffering. It was shown that from the shoulders of the mule to the front wheel of the car is a distance of 11 or 12 feet, and there was evidence tending to show that, by applying the brakes attached to this car, it could have been stopped within a space of 6 feet. There was also evidence [70 Tex. 605] tending to show that the driver was careless and incompetent, and that he struck the mule a sharp blow with his whip just as appellant fell to the ground, though all these facts were disputed. The ordinances of the city of Gainesville, under authority of which appellee's road was constructed, require that all drivers of street cars shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or running towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible, and that each driver shall have a whistle, and, on the approach of danger of any person, animal, or vehicle, shall give an alarm. The collision occurred near the point where the appellant was in the habit of crossing the track in going to and returning from his home. He did not see or hear the car, though he could have done so had he listened or...

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