Denison & S. Ry. Co. v. Craig

• Decision Date: 20 April 1904
• Citation: 80 S.W. 865
• Parties: DENISON & S. RY. CO. v. CRAIG et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 865

DENISON & S. RY. CO. v. CRAIG et al.^*

Court of Civil Appeals of Texas.

April 20, 1904.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by J. L. Craig and another against the Denison & Sherman Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Head & Dillard, for appellant. J. A. Templeton, for appellees.

JAMES, C. J.

Judgment was rendered against appellant, in favor of James Watt Craig, a minor (of 17 or 18 years of age when injured), for $500, and J. L. Craig, his father, for $100, on account of a personal injury to the former. The assignments in substance present the questions of the sufficiency of the testimony to show a case of negligence on the part of appellant, and that the testimony indisputably shows that the boy was guilty of contributory negligence, and that he assumed the risk of the danger existing in the conditions wherein he received his injury.

The following facts were in evidence: The night was drizzling and very dark. James Watt Craig was a student of Austin College, in Sherman, and went to the crossing of College street and Grand avenue for the purpose of meeting some young ladies from town, whom he had invited to an entertainment at the college that evening, and whom he was expecting on appellant's car. Prof. Bondurant was there, also, to take a car back to town. The cars ran along Grand avenue, and the car in question came from the south. It appears that cars stopped at this place when signaled. The car in usual use on Grand avenue was a small one, six feet six inches wide, the steps of which hardly came out flush with the body of the car. The car in use on this occasion was known as an "interurban car," which was much larger. These were a little less than nine feet in width, on most of which the steps extend out an inch or an inch and a half. The car in question had a step which extended out about six inches. It was being run as a special to convey some young ladies to a point beyond this crossing, with orders not to pick anybody up and to stop only at the other place. There was evidence that the unusual size of this car and the unusual projection of its step were unknown to plaintiff, and that the intense and blinding light from the car at which he was looking prevented his discovering or appreciating these facts. After signaling the car, he stepped back from the track, though not quite as far as Prof. Bondurant did. The car approached rapidly, and passed them without stopping or checking, and the step struck plaintiff on the knee. The motorman testified that he was 100 or 150 feet away when he saw plaintiff on the track, and when he stepped away from the track, but also said he whistled about a block away. Also: "I thought, at the time he was standing there at the track, that he had a foot to play on to be in the clear. I didn't know the width of the car then. I just judged he was about three feet away. Passengers stand close. They all stand close. I didn't think I was taking any chance in running up there that way. I thought he was clear." He stated, further: "I couldn't say how far he was from the track. My best judgment is that he was about three feet, something like three feet. I knew he was within three feet of the track." This car extended out two feet from the track, and the step went out six inches further. Plaintiff testified that he supposed all the cars were the same width, that he could not see the step at all, and did not know that the car had protruding steps. It is very clear that an ordinary car would not have struck plaintiff. Ordinances of the city were shown, which required appellant to stop a car in the shortest time and space possible on the first appearance of danger to persons on the track or moving toward it; also to have a whistle, and on the approach of danger to any...