Dallas Consolidated Traction Ry. Co. v. Hurley

• Decision Date: 20 March 1895
• Citation: 31 S.W. 73
• Parties: DALLAS CONSOLIDATED TRACTION RY. CO. et al. v. HURLEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

31 S.W. 73

DALLAS CONSOLIDATED TRACTION RY. CO. et al. v. HURLEY et al.¹

Court of Civil Appeals of Texas.

March 20, 1895.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Suit by Annie Hurley and others against the Dallas Consolidated Traction Railway Company and Sam P. Cochran, the receiver of said company, for damages for the negligent killing of plaintiffs' intestate. There was a verdict for plaintiffs. From an order denying a motion for a new trial, defendants appeal. Affirmed.

Leake, Henry, Miller & Reeves, for appellants. Wooten & Kimbrough, for appellees.

FINLEY, J.

This is a suit for damages, brought by Annie Hurley and her two minor children against the Dallas Consolidated Traction Railway Company (a street-railway company) and Sam P. Cochran, receiver of said railway company, for damages for the negligent killing of Mike Hurley, who was the husband of said Annie Hurley, and the father of the other two plaintiffs. The petition charged that the said Mike Hurley received the injuries causing his death while he was crossing the track of said railway in the city of Dallas, on a dark night. The negligence of the railway company was charged to consist in rapid driving, absence of any light on the car, and failure to keep watch by the driver; all contrary to the ordinances of the city of Dallas. The alleged injury was charged to have occurred on August 29, 1892, about the hour of 9:30 o'clock p. m. Plaintiffs' petition charges that after said Mike received the injuries causing his death, to wit, on October 15, 1892, at the instance of the trustees of a second mortgage executed by said railway company, its property of every description was placed in the hands of said Cochran as receiver, and that said receivership is still pending in the district court of the Forty-Fourth judicial district of Dallas county, Tex. (This suit was prosecuted in the Fourteenth judicial district, Dallas county, Tex.) The petition charged that the plaintiffs have by law a lien on the net earnings of the road in the hands of the receiver, superior to that of the mortgagees, and that a large amount of net earnings have come into the hands of the receiver, and have been expended by him for betterments and otherwise, to wit, the sum of $15,000; wherefore said receiver is made a party defendant. Plaintiffs prayed for $20,000 actual damages and $5,000 exemplary damages, and for a judgment against the receiver on account of the receipt of earnings, and their misappropriation, etc. The defendants pleaded general denial and contributory negligence of the deceased. There was a general verdict for plaintiffs for $9,000, apportioned equally between them, upon which judgment was rendered against both the railway company and the receiver, with directions that the judgment as to the receiver be certified to the district court of the Forty-Fourth judicial district, and that the receiver be required to pay this judgment, in the due course of law, out of the earnings of the defendant company while in the hands of the receiver, and as required to be paid by statute; and, in case he fails to pay this judgment within a reasonable time, that the fact of his failure be certified to the trial court, etc. Both the railway company and the receiver perfected an appeal to this court, and assigned errors, of which they now insist upon the following. (The above statement of the case is furnished by appellants' brief, and is substantially correct.)

First assignment of error: "The court erred in overruling defendants' motion for a new trial, because the verdict of the jury was contrary to the law as given in charge by the court, and contrary to the evidence adduced on the trial, in this: that there was no evidence introduced on the trial that showed or tended to show that the deceased, Mike Hurley, would not have been injured at the time and place he was injured, even if the defendant company had been wholly and entirely free from fault, blame, or negligence; and there was no evidence showing or tending to show that deceased received his injuries by reason of the alleged illegal rate of speed of the car, or by the alleged want of signal lights in the car." Appellees, in their brief, give a condensed statement of the evidence relating to the manner in which the injury was inflicted, which we find to be sustained by the record. It is as follows: "The right of way of the appellants' line of railway in the city of Dallas was expressly granted subject to the charter and ordinances regulating street cars and railroads. The ordinances of the city provided that no street car should be run at a greater rate of speed than six miles per hour; that the conductor or driver of each car shall keep a vigilant watch for all vehicles and persons on foot, either on the track or moving towards it; and on the first appearance of danger of such persons or vehicles the car shall be stopped in the shortest space and time possible; and that, after sunset, the cars shall be provided with signal lights. The point where this accident occurred was on South Harwood street, where there was no sidewalk, and where people usually walked on the car track, or crossed from side to side of the street, according to the condition and nature of the ground. The street at that place is straight, but there was a curve at a point two blocks north of the spot, and another curve a short distance south, so that the car could not be seen beyond those curves. The car, at the time it ran over Hurley, had no lights on it, and it was perfectly dark in the street, being about 10 o'clock at night. Foss and Randolph both saw the car immediately after it struck Hurley, and it had no light of any kind in or on it. At the time the car struck Hurley, and before and after it struck him, it was running at a furious rate of speed. Some of the witnesses say the mules seemed to be running away, others that they were going as fast as they could, and others that the car was going 12 or 15 miles an hour. Hurley himself said that he heard the car, but could not see it, as there was no light on it, and that it ran upon him so quick that he could not get out of the way. The car made such a noise when it ran over the man that it awakened persons in the neighborhood, and could be heard several blocks away; but the driver of the car says he did not know of having run over anybody until the next morning, and that he neither saw nor heard of the man being run over by him that night. He...