Dallas Rapid Transit Ry. Co. v. Dunlap

• Decision Date: 02 May 1894
• Citation: 26 S.W. 877
• Parties: DALLAS RAPID TRANSIT RY. CO. v. DUNLAP et ux.
• Court: Texas Court of Appeals

26 S.W. 877

DALLAS RAPID TRANSIT RY. CO. v. DUNLAP et ux.

Court of Civil Appeals of Texas.

May 2, 1894.

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

Action by J. S. Dunlap and wife against the Dallas Rapid Transit Railway Company for killing plaintiffs' infant son. Plaintiffs obtained judgment. Defendant appeals. Affirmed.

Alexander & Clark, for appellant.

Conclusions of Fact.

RAINEY, J.

On September 3, 1891, about 2 o'clock p. m., defendant, in the operation of its electric motor car, propelled on and over a street in Dallas, negligently struck and killed the infant son of appellees. The child was one or two years of age.

Conclusions of Law.

The first and second assignments of error complain of the court for admitting certain testimony over the objection of appellant. The testimony of Mrs. Bessant was legitimate, as it tended to contradict the testimony of the witness Robertson, the motorman. If the testimony of the other witnesses as to repairing the wires after the accident was improperly admitted, the error was cured by the charge of the court, in specifically directing them not to consider it. The character of the evidence was not such as was calculated to prejudice the minds of the jury to the extent that they would consider it regardless of the court's charge. Besides, the court, on this question, distinctly instructed the jury to consider only the negligence of the motorman.

The court gave the following instructions, of which the appellant complains: "The law imposes upon the defendant the duty of employing competent and careful persons to manage and control their cars while running on its track, and it was the duty of the motorman to exercise proper care and keep a proper lookout in order to avoid, if possible, all accidents. If you find and believe that, at the time of the accident, the motorman could, by the exercise of proper care and skill in handling the car, stop the same in time to have prevented the accident, and he failed, in either or both of these duties, then the plaintiffs would be entitled to recover." "If you find and believe that, at the time of the accident, the motorman was on the lookout at his post, and could not, by the exercise of ordinary care and watchfulness, have seen the child in time to prevent the accident, or if, after he saw it, he did what was possible to be done in order to avoid the accident, then no recovery can be had against defendant." The objections urged to these charges are (1) that it was wrong to instruct the jury that it was defendant's duty to use proper care, without defining what was meant by "proper care;" (2) because the court did not define the degree of care required, as requested by appellant; (3) because the court should not have told the jury that it was the duty of the motorman to be on the lookout, as it was on the weight of the evidence. It was error for the court to tell the jury that it was the duty of the defendant to use "proper care," without defining it; but this error was rendered harmless, if not entirely cured, by the third paragraph of the court's charge, above quoted, which told the jury, in effect, that appellees could not recover if the motorman could not, by the exercise of ordinary care and watchfulness, have seen the child in time to prevent the accident. Railway Co. v. Underwood, 64 Tex. 467.

But, as what constituted "ordinary care and watchfulness" was not explained by the court, appellant insists that the special charge asked by it and refused should have been given. The special charge asked by appellant is as follows: "The care and caution required of a...