Foley v. Northrup

• Decision Date: 23 October 1907
• Parties: FOLEY v. NORTHRUP.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

105 S.W. 229

FOLEY v. NORTHRUP.^*

Court of Civil Appeals of Texas.

October 23, 1907.

Rehearing Denied November 20, 1907.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Frank Northrup against John J. Foley. Judgment for plaintiff, and defendant appeals. Affirmed.

W. J. Howard, for appellant. A. C. Van Velzer, for appellee.

FLY, J.

This suit was instituted by appellee to recover damages arising from injuries inflicted on him by appellant, alleged to have been caused by the reckless driving of appellant in the streets of Houston, Tex. The cause was tried by jury and resulted in a verdict and judgment for $237.50 actual and $475 exemplary damages.

The court charged the jury: "If you believe from the evidence that on December 19, 1904, while plaintiff was riding in a buggy on Preston street, in the city of Houston, the buggy in which he was riding was run into by one being driven by the defendant, in consequence of which plaintiff was thrown from the buggy in which he was riding, and injured in some one or more of the particulars alleged by plaintiff, and if you further believe from the evidence that defendant Foley in the manner in which he handled and drove his horse was not in the exercise of such care as a man of ordinary prudence would have exercised under the same or similar circumstances, and that but for defendant's failure to exercise such care the accident and injury to the plaintiff would not have happened, or if you believe from the evidence that defendant at the time of the collision of the two buggies in the manner in which he handled and drove his horse was in the exercise of such care as a man of ordinary prudence would have exercised under the same or similar circumstances, but should further believe from the evidence that defendant at said time was driving his horse at a speed in excess of six miles per hour, and that plaintiff's injuries, if any, were proximately caused by reason of the fact that the defendant was driving his horse at such rate of speed, then, in either event, you will let your verdict be for the plaintiff and assess his damages, if any, as hereinafter instructed, unless you find for defendant under other portions of this charge or under special charge submitted by the court." Through the first assignment of error that charge is assailed on the grounds that it is on the weight of the evidence, in that it assumes that appellant did not handle his horse with ordinary care and that the appellee was injured, and in that it instructs the jury that if appellant was driving his horse at a rate of speed in excess of six miles an hour, and thereby injured appellee, that he would be guilty of negligence, even though he was at the time exercising ordinary care. We do not think the court assumed that appellant did not exercise ordinary care in the management of his horse, nor that appellee was injured, but each of those matters was left to the determination of the jury. We suppose that the first criticism is based on that part of the charge which states, "and that but for defendant's failure to exercise such care the accident and injury to the plaintiff would not have happened," because no qualifying words such as "if you find he failed to exercise such care" after the word "care," and "if any" after the words "accident and injury." The jury, in sentences just preceding the criticised language, had been explicitly told that they must base their verdict as to lack of care and the injury to appellee on the evidence, and the court then said if the injury which they were told to determine from the evidence resulted from a failure to exercise ordinary care, which they had been told to determine from the evidence, they should find for the appellee. The language is too plain to mislead any jury into believing that the court instructed them that there had been a failure to exercise ordinary care, and that an injury had resulted thereby.

It was proved that it was a violation of an ordinance of the city of Houston to drive a horse at a greater rate of speed than six miles an hour, and there was proof that appellant was violating that ordinance when he injured appellee, and that such violation of law was the proximate cause of the injury, and appellant was liable for the damages arising therefrom, no matter what degree of care he may have been exercising otherwise in the management of his horse. The object of the ordinance is to protect those on the streets from reckless and furious driving, and the party violating that ordinance and thereby injuring a citizen cannot be heard to justify his act and absolve himself from liability by proof that he is an expert driver, and was handling his team in a masterly manner. It was negligence per se to drive his horse through the streets of Houston in utter disregard of law, and, if such violation of law was the proximate cause of appellee's injuries, appellant is liable for the damages arising therefrom. The court did not err in so informing the jury. Railway v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146; Railway v. Pendery, 14 Tex. Civ. App. 60, 36 S. W. 793. This is too well settled in Texas to deserve further consideration. The court charged the jury: "If you believe from the evidence that at the time of the accident defendant was driving his horse in a wanton, reckless, or willful manner, with an entire want of care and an absolute indifference to the rights of others who might be using said street, and that such conduct on his part proximately caused or occasioned plaintiff's injuries, if any, and you find plaintiff entitled to recover actual damages under other charges submitted to you, then, and only in that event, you are instructed that you may in your discretion assess such further damages against defendant as you may deem proper by way of punishment." And a...