Dallas Ry. & Terminal Co. v. Bankston

• Decision Date: 09 June 1932
• Docket Number: No. 1554-5881.,1554-5881.
• Citation: 51 S.W.2d 304
• Parties: DALLAS RY. & TERMINAL CO. v. BANKSTON.
• Court: Texas Supreme Court

51 S.W.2d 304

DALLAS RY. & TERMINAL CO. v. BANKSTON.

No. 1554-5881.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by W. H. Bankston against the Dallas Railway & Terminal Company. To review the judgment of the Court of Civil Appeals [33 S.W.(2d) 500] affirming the judgment of the district court in favor of plaintiff, defendant brings error.

Reversed and remanded.

Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, for plaintiff in error.

J. Hart Willis and J. W. Madden, Jr., both of Dallas, for defendant in error.

SHARP, J.

W. H. Bankston filed this suit in the district court of Dallas county against Dallas Railway & Terminal Company to recover for personal injuries and for the destruction of his automobile in which he and two others were riding at the time of the injury. Plaintiff based his cause of action, in part, from alleged violation of certain ordinances of the city of Dallas and, in part, on negligence arising from the alleged breach by defendant of its common-law duty to exercise due care.

The case was submitted to the jury upon special issues. In answer to the special issues submitted, the jury found: (1) That the defendant's motorman failed to keep a vigilant watch for plaintiff's automobile; (2) that the motorman failed to stop the car in the shortest time and space possible after the plaintiff's danger became apparent; (3) that the defendant failed to keep the space between its track and rails and two feet on each side level with the balance of the street; and (4) that these failures were each a proximate cause of plaintiff's damage.

The findings of the jury on issues with respect to negligence arising from the alleged breach by defendant of its common-law duty are as follows: (a) That the rate of speed the street car was being operated at the time of the collision was negligence; (b) that the motorman operating the car discovered plaintiff's perilous position in time by the exercise of ordinary care, which he failed to exercise, to have prevented the collision; (c) that the motorman negligently failed to keep a lookout; (d) that the motorman just prior to the collision negligently abandoned the portion of the car where the control appliances were located; (e) that he also negligently failed to apply the brakes; and (f) that each of the said acts of negligence was the proximate cause of plaintiff's damage. All issues of negligence on the part of plaintiff were found in his favor.

By virtue of these findings judgment was rendered by the trial court for plaintiff in the sum of $3,475, but before an appeal was perfected a remittitur of $1,192.05 was filed reducing the judgment to $2,282.95. An appeal was made to the Court of Civil Appeals at Dallas, and the judgment of the trial court was affirmed. 33 S.W.(2d) 500. A writ of error was granted.

Plaintiff in error attacks the validity of article 1881 of the ordinances of the city of Dallas which required the motorman of each car to keep a "vigilant watch" for all vehicles either on the track or moving toward it, and on the first appearance of danger to such vehicles the car should be stopped "in the shortest time and space possible," because such terms are vague, indefinite, and not sufficiently definite and certain to authorize a prosecution for violation thereof. The pertinent part of article 1881 of the ordinances involved here reads as follows: "The motorman of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving 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."

Both the Constitution and statutes of this state give a city the right to protect the life and property of its citizens by regulating the use of its streets by street railway companies and others. Section 5, article 11, Constitution of Texas; article 1175, R. S. 1925. In harmony with section 5, article 11, of the Constitution, the Legislature enacted chapter 13, article 1165 et seq., R. S. 1925, known as the Home Rule Statute. Subdivision 12 of this article (article 1175) authorizes the city to prohibit the use of any street of the city by any street railway, interurban railway, or any other character of public utility without first obtaining the consent of the governing authorities, and upon such condition as may be provided by such ordinances. Subdivision 16 also gives the city the exclusive dominion control, and jurisdiction in, over, and under the public streets, and to provide for the improvement of any public street or paving, raising, grading, filling, or otherwise improving the same and to charge the cost of making such improvement against the abutting property, and further provides that all street railways or other railways should pay the cost of improving said street between the rails and tracks of any such railway company, and two feet on each side thereof.

Article 1892 of the city ordinances, in part, reads: "All street railroad companies shall be required to keep level with the balance of the street the space between their rails and tracks, and two feet on each side of same, with similar material to that with which the balance of the street on which the same are situated shall be repaired or improved, and they shall have the tops of the rails of their tracks on a level with the surface of the streets, and they shall keep their tracks in repair and according to the street grade; and they shall keep any culverts constructed by them in repair and in good condition, as likewise any part between their rails and tracks. * * *"

Article 1893 also, in part, reads: "That any person, corporation, company or co-partnership operating a street railroad in the City of Dallas, or any track running through any portion of the City of Dallas, shall be liable for all damages which may be sustained by any person or property by reason of the violation or non-compliance of such person, corporation, company or co-partnership with the provisions of the preceding article, or by reason of the failure of such person, corporation, company or co-partnership to keep such railroad in proper repair or by reason of the negligent operation or maintenance of such street railroad, or by reason of the carelessness, negligence or misconduct, of any of their agents or servants. * * *"

The enactment of articles 1881, 1892, and 1893 of the ordinances of the city of Dallas evidently was for the purpose to promote the safety of travel on the streets. The subject-matter was clearly within the power of the city, and the ordinances are plain and specific. The language used within the ordinances is simple, and is commonly used by cities in connection with such matters. The outstanding purpose of the ordinances was for the safety of the public from injury through the operation of street cars upon the streets. Modern conditions demand that municipalities must of necessity be permitted reasonable latitude in the exercise of their police powers. The authorities sustain the view that the powers given cities are broad enough to authorize the enactment of ordinances and rules regulating traffic upon public streets, and to impose reasonable restraints to protect the welfare of the public in the proper use of the streets.

Although an ordinance regulating the operation of street cars requiring that the motorman keep a "vigilant watch" and stop the car "in the shortest time and space possible," having regard for the traffic and use of the streets, establishes a rule of conduct which is not greatly different from the rule of ordinary care, and, while it may be too uncertain and indefinite in its terms to be capable of enforcement by a criminal prosecution, it is not too indefinite to furnish a rule of civil conduct. Recently this section of the commission passed upon the validity of articles 790, 794, and 799 of the Penal Code, which involved the question of "adequate brakes," and providing that no person shall drive a motor or other vehicle upon the highways of the state "at such rate of speed as to endanger the life or limb of any person or the safety of any property." The foregoing articles provided for a penalty for violation thereof. It was held that the foregoing articles of the Penal Code were valid in so far as they were sufficient to furnish a rule of civil conduct. Both state and federal authorities construing similar laws, involving analogous principles, were reviewed. H. & T. C. R. R. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995; West Texas Coaches v. Madi (Tex. Com. App.) 26 S.W.(2d) 199; 42 C. J. p. 631.

It is further contended that article 1881 of the ordinances involved here is invalid because the city of Dallas possesses only such powers as are delegated by the Constitution and statutes, and the rule is recognized that no charter or any ordinance passed thereunder shall contain any provision inconsistent with the Constitution or the general laws enacted by the Legislature; that as the common law which is adopted in this state (R. S. 1925, art. 1) in the absence of legislation upon the subject-matter furnishes the rule of decision, and liability, if at all, must rest upon the failure to exercise ordinary care; that no absolute duty rested upon the motorman to keep a vigilant watch or to stop the car in the shortest time and space possible, or was he required to do more than to exercise ordinary care under the circumstances. Therefore, the ordinance, being in conflict with the common law in these respects, is void.

The Constitution and statutes confer upon the cities of this state authority to regulate the use of streets. The city of Dallas has availed itself of that power and enacted ordinances regulating the operation of street cars and other vehicles thereon. It has the power to enact reasonable rules not only for the control of the...