Eads v. City of Marshall

• Decision Date: 28 November 1894
• Citation: 29 S.W. 170
• Parties: EADS v. CITY OF MARSHALL.
• Court: Texas Court of Appeals

29 S.W. 170

EADS v. CITY OF MARSHALL.

Court of Civil Appeals of Texas.

November 28, 1894.

Appeal from Harrison county court; James W. Pope, Judge.

Action by B. F. Eads against the city of Marshall. There was a judgment for defendant, and plaintiff appeals. Reversed.

F. B. Sexton and T. P. Young, for appellant. M. R. Geer, for appellee.

FINLEY, J.

This suit was brought by appellant, as plaintiff, in the county court of Harrison county, Tex., on November 29, 1892, against the city of Marshall, as defendant. The object of the suit was to recover damages which it is alleged the plaintiff sustained by reason of injuries to plaintiff's wife, and her horse and buggy, caused by the alleged negligence of defendant, in not keeping the public streets in a reasonably safe condition. The defendant on January 6, 1893, filed a cross bill alleging that the injuries of which plaintiff complained were caused by the independent act of the Texas & Pacific Railway Company, and asked that said company be made a party defendant. The court having sustained a demurrer to the cross bill, in so far as the same sought to make the railway company a party to the suit, the defendant on January 20, 1893, filed its first amended original answer, containing the general denial, a special plea that the bridge was sufficient, and a plea of contributory negligence on the part of plaintiff's wife at the time of the accident. The case was tried before a jury, and a verdict returned for defendant, from which this appeal is prosecuted.

It is alleged that the injuries occurred in the following manner: "Plaintiff's wife was traveling along the extension of North Grove street, in a buggy drawn by a gentle horse. When said horse had crossed the city bridge, near the track of the Texas & Pacific Railway Company, and at a point where said extension passes under trestle No. 668, a locomotive passed on said track, which is distant about one hundred and sixty feet from the bridge. The noise of the engine caused the horse to back the buggy a few feet, and the back wheels rolled off the bridge; and the vehicle, plaintiff's wife, child, and another lady were precipitated into a deep ravine, over which said bridge was placed." The petition contained, also, allegations as to the city's responsibility and negligence; the negligence alleged being the defectiveness of the bridge, in not having railings, etc. This statement is deemed sufficient to make clear the points discussed in the opinion.

The third assignment of error is based upon the sixth paragraph of the court's charge upon the defense of contributory negligence, which charge is as follows: "The wife of plaintiff was required to use ordinary care, such as persons of ordinary intelligence and prudence would have used under like circumstances; and, if she failed or neglected to use such ordinary care, then she is guilty of contributory negligence, and the plaintiff cannot recover, and you will find for the defendant." This charge...