Dallas Ry. & Terminal Co. v. Farnsworth

• Decision Date: 08 March 1950
• Docket Number: No. A-2357,A-2357
• Citation: 227 S.W.2d 1017,148 Tex. 584
• Parties: DALLAS RY. & TERMINAL CO. v. FARNSWORTH.
• Court: Texas Supreme Court

Page 1017

227 S.W.2d 1017

148 Tex. 584

DALLAS RY. & TERMINAL CO. v. FARNSWORTH.

No. A-2357.

Supreme Court of Texas.

March 8, 1950.

Burford, Ryburn, Hincks & Ford, Dallas, Howard Jensen, Dallas, Frank M. Ryburn, Jr., Dallas, for petitioner.

White & Yarborough, Dallas, W. E. Johnson, Dallas, for respondent.

SMEDLEY, Justice.

The Court of Civil Appeals affirmed a judgment against petitioner, Dallas Railway & Terminal Company, in the sum of $12,518.00, for damages on account of injuries suffered by respondent, Mrs. Letta M. Farnsworth, when struck by petitioner's street car immediately after she had alighted from it. Tex.Civ.App., 221 S.W.2d 981.

By its first point of error petitioner presents the contention that there is no evidence to support the jury's findings of negligence on the part of the operator of the street car in failing to give respondent an opportunity to get beyond the overhang of the car before starting its turn and in failing to keep a proper lookout for respondent; and by its second point petitioner contends that respondent was contributorily negligent as a matter of law in failing to step from the path of the rear overhang of the car.

The substance of the evidence, most of which is taken from the respondent's testimony and that of witnesses who testified for her, follows: Respondent, a widow, fifty-two years of age, employed in the store of Sears-Roebuck in Dallas, became a passenger, together with her thirty year old daughter and three year old grandson, on petitioner's street car to travel from the store on South Lamar Street to the corner of Elm and St. Paul Streets, a distance estimated by the operator of the street car to be approximately one mile and by respondent approximately three or four miles. Traveling east on Elm Street, the car stopped when it arrived at St. Paul Street. At that place the car tracks do not extend farther east on Elm Street, but turn to the left and north on St. Paul Street. Although respondent had been a passenger on street cars in Dallas and in other places oftentimes over many years, she had never been on a street car on Elm Street and did not know that the car turned to the left at St. Paul Street, and did not look at the tracks ahead of the car, and she had never observed that the rear end of a street car would swing out as the car went around a curve and did not know that it would.

At the place where the street car stopped there was a safety zone marked for passengers leaving or entering the car. This safety zone, which was on the south side of the street car, was about 49 feet long east and west and 6.7 feet wide, and was marked by a row of metal discs about 1 foot in diameter placed there by the city. Within the safety zone and nearer to the street car track was a curving row of brass discs .3 of a foot in diameter approximately parallel to the curve of the street car rail, which were placed there by petitioner to mark the extent of the overhang of street cars. The distances between the small brass discs and the large discs marking the outside of the safety zone varied from 4.2 feet at the west end of the row of brass discs to 2.2 feet at the brass disc farthest east, which marked the place where the greatest overswing of the car occurred. Respondent knew of the large discs which marked the safety zone but she did not notice the small brass discs inside the zone. The traffic is controlled at the corner of Elm and St. Paul Streets by traffic lights, and at the time of the accident, 4 P.M., the automobile traffic on Elm Street was heavy. The street car was 50 feet in length.

Eight or ten passengers alighted from the street car at its front door. According to respondent's testimony all of the others were ahead of respondent, her daughter and grandchild, respondent being the last passenger to alight. She testified that just as she stepped off the street car step within the safety zone the traffic light which she was facing and in the direction that she intended to go, that is, to the south, changed to red, and that before she had time to take a step, almost instantaneously, she was struck and knocked down by the street car.

A disinterested witness who was in his automobile directly behind the street car at the time of the accident testified that he saw the car strike respondent and knock her down as it made the turn. He testified further that there were from seven to ten people standing in the safety zone and some of them were in front of respondent, and that there was considerable traffic going both east and west on Elm Street, with a number of automobiles standing in the passage between the safety zone and the south curb of Elm Steet waiting for the light to change. He testified that he thought the street car started 'pretty abruptly' and again that the movement of the street car was abrupt. He testified that to the best of his knowledge respondent, before she was struck, had moved approximately 10 feet back from the front door of the street car, that is, to the west, adding that he could not see the front door of the street car.

A traffic officer of the City of Dallas on duty at the intersection of Elm and St. Paul Streets, standing on the southeast corner, witnessed the accident. He saw the right rear corner of the overhang of the street car strike respondent as it went around the curve. He testified that the car 'was moving rapidly for that intersection'; that he saw the street car start moving forward, saw that respondent was going to be hit and tried to stop the car; that the operator of the street car never knew that the accident had occurred until his inspector informed him of it; that when respondent was struck she was standing in the extreme east end of the safety zone; that respondent was facing south and a person was standing in front of her, where she could not move forward on account of the traffic, and another person was standing to her right, and that she could not move to her left because she was at the extreme east end of the safety zone and 'the law says you must stay in the safety zone until the light changes'. He testified further that there were approximately ten seconds between the time when he saw respondent standing there and the time when the street car struck her.

The operator of the street car testified that as he closed the door of the car immediately before starting he looked to his right, saw that the door was clear, and saw no one within reach of the door or within reach of the overhang of the street car, and that there was no one 'at the point of my front door within the overswing zone'; and that after he closed the door and started the street car he never looked back to his right or to the back of the street car, his attention being given to watching the traffic traveling west on Elm Street and the pedestrians who were crossing St. Paul Street. His testimony shows that he knew nothing about the accident until he had traveled to the end of the line and returned to Elm and Ervay Streets, where he was told of it by the company's supervisor. He testified further that he was not in a hurry on that particular day and that in making the start at the corner of Elm and St. Paul Streets he operated the car normally and traveled at approximately 1 to 2 miles an hour around the curve.

It should be sufficient, without discussing at length the evidence above set out, to express our opinion that it makes issues of fact as to primary negligence on the part of the operator of the street car and contributory negligence on the part of respondent. In other words, there is some evidence to support the jury's finding that the operator was negligent in failing to give respondent an opportunity to get beyond the overhang of the car and some evidence to support the finding that respondent was not negligent in failing to step from the path of the car's overhang. The evidence, or part of it, as to negligence on the part of the operator is respondent's testimony that she was struck by the street car before she had time to take a step, almost instantaneously, after she alighted, the testimony of another witness that the movement of the car was abrupt and of another that the car 'was moving rapidly for that intersection'. This same evidence and respondent's testimony that she did not know that the street car tracks turned to the left or that the rear end of the car would swing out as it went around a curve, together with the testimony of another witness that when she alighted a person was standing in front of her and another to her right, creating a situation where...