Hays v. Gainesville St. Ry. Co.

• Decision Date: 01 May 1888
• Parties: HAYS v. GAINESVILLE ST. RY. CO.
• Court: Texas Supreme Court

8 S.W. 491

HAYS v. GAINESVILLE ST. RY. CO.

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.

E. A. Blanton and Hill & Hill, for appellant. Patter & Hughes, for appellee.

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 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 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 to 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 looked. The reason that he did not see the mule in time to avoid the collision was that he was looking back at his pursuer. The trial resulted in a verdict and judgment for the appellee. Alleged errors in the charge of the court, and in admission and rejection of evidence, are relied on for a reversal of the judgment. The controlling question in this as in almost all other cases of personal injury is as to which party is guilty of negligence contributing proximately to the injury.

Negligence is a relative term, and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances usually impose. The degree is not the same in all cases, but may vary according to the danger involved in the want of vigilance. Cooley, Torts, 630. To illustrate, it would involve little or no want of care to cross a road or street on foot used exclusively for ordinary travel, without looking either way for persons on horseback or in vehicles, because usually there is but little danger in so doing; while it would be gross negligence to cross a railroad track over which many trains of cars are accustomed to pass every hour in the day, without using the utmost vigilance and circumspection. In determining whether it is an act of negligence to go upon a street-car track, the frequency of the passage of cars, their usual rate of speed, whether many people are accustomed to cross at that particular place, whether there is a duty imposed by law upon the drivers to keep a lookout, and give warning of approaching danger, and the like circumstances, may be taken into consideration. In the present instance, the ordinance under which appellee was incorporated made it the duty of the car-driver to keep a vigilant lookout for all persons approaching the track, and to stop the car on the first appearance of danger; and a failure to perform this duty would of itself be an act of negligence. But the district court, for the purposes of the trial, considered the term "negligence," as applied to appellee, as synonymous with an intention on its part to inflict an injury on appellant. In the second...