Austin Electric Ry. Co. v. Faust

• Decision Date: 23 November 1910
• Parties: AUSTIN ELECTRIC RY. CO. et al. v. FAUST.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

133 S.W. 449

AUSTIN ELECTRIC RY. CO. et al. v. FAUST.^†

Court of Civil Appeals of Texas.

November 23, 1910.

Rehearing Denied January 4, 1911.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by Mary Faust against the Austin Electric Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in part, and reversed and remanded in part.

F. C. Davis, Geo. E. Shelley, Gregory, Batts & Brooks, Cochran & White, Irelan Graves, and Allen, Hart & Patterson, for appellants. James H. Robertson and Webb & Goeth, for appellee.

JENKINS, J.

This is a suit for damages for personal injuries sustained by appellee by reason of a collision between a car of the Austin Electric Railway Company and a wagon and team of the Austin Ice Company, whereby the said team was frightened and caused to run away, and against a buggy in which plaintiff was sitting at the time, and thereby inflicting injuries upon her, as described in appellee's petition. Judgment for appellee for $6,000 against the said railway company and the said ice company, a dissolved corporation, and against L. E. Tinnin, R. S. Tinnin, C. I. Tinnin, and F. C. Davis, stockholders of said ice company.

The undisputed facts show that appellee was sitting in a buggy in the daytime, on the east side of Congress avenue, between Ninth and Tenth streets, and near the intersection of said Ninth street and Congress avenue; that the railway company was operating its street cars on said avenue, which runs north and south; that said avenue is a broad and straight street; that there is a double track of the street railway near the center of said avenue, there being about six feet between said tracks; that the wagon of the ice company was on the east side of said avenue, and had started diagonally across the same, between Ninth and Tenth streets, traveling southwest, and, after crossing the east track of said railway, had turned west, traveling parallel with the west track of said railway for a short distance, and then turned north across the north track, at which time a car traveling west struck the horses attached to said wagon, and caused them to run away and inflict injury upon appellee, sitting in said buggy.

Appellee alleged negligence as to both the railway company and the ice company, substantially in this: Against the railway company, in that at the time it was operating its car at a high rate of speed, and that the motorman saw, or, by the exercise of ordinary care, could have seen, the ice wagon was approaching and entering on the track in front of the car in time to have avoided said collision; against the ice company, in that the driver of its wagon saw, or, by the exercise of ordinary care could have seen, that the street car was approaching in such close proximity that a collision would occur by attempting to drive the wagon and team across the track in front of said car, in the manner that he did; that the negligence both of the railway company and of the ice company was the proximate cause of her injuries.

The street railway company, in addition to a general denial, alleged substantially that the negligence of the ice company was the proximate and sole cause of appellee's injuries in this: That it was operating its car at a proper speed; that the ice wagon was being driven parallel with the track of the railway company at a safe distance therefrom, and that the driver of said wagon suddenly turned across the railway track in such close proximity to the car that it was impossible to stop said car in time to avoid the collision, after discovering the intention of said driver so to do, and that after such discovery, its motorman did all that he could to stop said car; that said motorman had the right to presume that said driver would continue to travel parallel with said car, and at a safe distance therefrom, and that he would not turn suddenly in front of said moving car in such close proximity thereto. The railway company also pleaded that the plaintiff failed to use ordinary care to secure prompt and skilled medical attention, and that she failed to use ordinary care to follow the instructions of her physicians, and by reason of such failure contributed to her own injuries.

The ice company, in addition to a general denial, alleged substantially that the negligence of the railway company was the proximate and sole cause of appellee's injuries, in that the driver of its wagon exercised proper care, and that the railway company ran its car downgrade at a rapid and dangerous speed, and that the motorman saw the wagon and team crossing the track in time to have avoided the collision, but did not ring the bell or sound the gong, but ran into said wagon and team and frightened said horses, and caused them to break away and run against the buggy in which appellee was seated.

As to appellant, the street railway company:

1. Its first assignment is upon the refusal of the court to give its requested charge which contained, among other things, the following: "If you believe from the evidence that the driver of the ice company's wagon drove his team in a parallel direction with the street car, and just ahead of said car, a few feet from said track, and a safe distance from same, then the motorman on the street car had the right to presume that the driver of the ice wagon would so continue to drive, and not place himself in danger by turning across the street car track, and, if you so believe from the evidence, you are then instructed that it was not the duty of the motorman to use any means to check said car until he saw, if he did see, that the driver of the ice wagon was going to turn across the street car track in front of the car. * * *"

Appellee, in reply to this assignment, says: "Street railways should not presume that persons traveling near and parallel to their tracks may not and will not turn across the tracks," and bases this upon the proposition that "street railways have no exclusive or paramount right to the use of streets covered by their tracks." That street railways have no such exclusive right is true. St. Ry. Co. v. Renken, 15 Tex. Civ. App. 234, 38 S. W. 829; St. Ry. Co. v. Kumpf, 99 S. W. 864; St. Ry. Co. v. Haines, 45 Tex. Civ. App. 289, 100 S. W. 791; St. Ry. Co. v. Woodlock, 29 S. W. 818. Many cases from other jurisdictions might be cited to the same effect. Many cases might also be cited in which it is said that street car companies have not a paramount right to the use of the streets on which their tracks are laid. We understand this also to be the law, using the word "paramount," in the sense in which it should be used in such cases. But we think the appellee's proposition is too broad. While street car companies have no exclusive right to the use of streets, it may be said that they have a preferential right to a certain extent, arising from the character of their operation. They have, at least, an equal right with others to the use of the street; their cars cannot turn aside, as can an ordinary vehicle, and are not so easily stopped as are ordinary vehicles going at the same speed. Also, if street cars, when proceeding along an open street at a proper rate of speed, when other vehicles or foot travelers are crossing the street in plain view of each other, when either could stop until the other had passed, if the street car must give the preference under such circumstances to ordinary travel, and stop until such vehicles or foot travelers have crossed the street, it might amount to greatly lessening the efficacy of street cars as a means of conveyance, to the great detriment of the public. We are not now discussing the doctrine of discovered peril; but if, under such circumstances, preference ought to be, and almost universally is, given to the street car, would this not have a bearing as to when the peril ought to be discovered? In Street Railway Co. v. Hewitt, 67 Tex. 480, 3 S. W. 708, 60 Am. St. Rep. 32, it is said: "If a person be seen on the track it may be assumed, if the person be an adult, that he will leave the track before the car reaches him." Why? Because such person ought to give the car the preference, and step aside for a moment and allow it to proceed on its way, rather than assert an equal right to the street and compel the car to slow down to his gait, so long as he chooses to remain on the track; and from the fact that people usually recognize and act upon this preferential right of the car, the motorman may well assume that it will be recognized and acted upon in a given instance, until there is something to reasonably indicate the contrary.

And so, as alleged in this case, if one be driving a wagon along parallel with and close to a moving car, the motorman might well presume, and be justified in presuming, that the driver of the wagon would not turn suddenly in front of the car, and in close proximity thereto. If, under such circumstances, the jury should find that the negligence of the driver of the wagon was the proximate cause of the injury, it might well be said that the evidence fully sustains the verdict, because the motorman acted upon the presumption that the driver of the vehicle would not thus act, and that he was not guilty of negligence in acting upon such presumption. But this is for the jury, under all of the facts and circumstances of the case, and is a very different proposition from the court's so instructing the jury, as a matter of law. There is not wanting authority holding that such instruction is proper, but we believe that the sounder view is that such an instruction would be upon the weight of the evidence, and so holding, we overrule the railway company's assignment in this regard.

By way of further...