Franklin v. Houston Electric Co.

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Franklin v. Houston Electric Co., 286 S.W. 578 (Tex. App. 1926)
• Decision Date: 14 June 1926
• Docket Number: (No. 8873.)
• Parties: FRANKLIN v. HOUSTON ELECTRIC CO.

286 S.W. 578

FRANKLIN v. HOUSTON ELECTRIC CO.

(No. 8873.)

Court of Civil Appeals of Texas. Galveston.

June 14, 1926.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by Albert Franklin against the Houston Electric Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

J. R. Hill and Pritchett Harvey, both of Houston, for appellant.

Baker, Botts, Parker & Garwood, of Houston, for appellee.

LANE, J.

This suit was brought by Albert Franklin, hereinafter referred to as plaintiff or appellant, against Houston Electric Company, hereinafter called appellee, to recover damages for personal injury alleged to have been suffered by him by reason of negligence on the part of appellee in not stopping its street car to take him on as a passenger, as required by law.

Plaintiff alleged that appellee owned and operated a street railway system in the city of Houston for the carriage of passengers for hire; that it operates its street cars over and upon the streets of said city; that on about the 8th day of February, 1923, it was operating one of its cars on Canal street in said city; that it is substantially provided by sections 1287 and 1287h of the Code of Ordinances of the city of Houston that all street cars shall stop at the near side of all crossings or corners for the purpose of receiving and discharging passengers; that by section 1286 of said Ordinances it is substantially provided that a failure on the part of the driver of any vehicle, including street cars, to observe any of the provisions of the ordinances, should constitute negligence, and that, if any person should suffer injury by reason of such negligence, no further proof of negligence shall be required in a suit brought to recover for such injury; that a penalty is provided for the violation of such ordinances; that on or about the 8th day of November, 1923, plaintiff went to the place on Canal street where it intersects Shephard street, a place where the ordinances required appellee to stop its street cars for the purpose of taking on and discharging passengers, and where appellee had for a long time regularly stopped its cars to take on and discharge passengers; that at the time he went to said place to take passage on said car he was ready, able, and willing to pay the price charged by appellee for his passage, but that, notwithstanding his approach to said place and his willingness to pay for his passage, and notwithstanding that he signaled the operatives of one of appellee's cars which was approaching to stop and take him on, said operatives failed to stop said car for him, but to the contrary ran said car by where he was standing; that the movement of said car raised a large amount of dust; that following said street car was an automobile driven by some person unknown to appellant; that said automobile was driven against and over him, by reason of the fact that the dust raised by said street car prevented the driver thereof from seeing him in time to stop the automobile before it struck him.

He alleged that the operative of the street car knew that an automobile was following his street car, or that by the exercise of due care could have so known. He does not allege, however, that it was the duty of such operative to ascertain such fact before passing one offering to take passage on his car, or that such operative did in fact see the approaching automobile. He alleges that the acts of negligence pointed out on the part of the operative of the street car were the proximate cause of his injuries.

The court sustained a demurrer to the plaintiff's petition, and, upon plaintiff's refusal to amend, the cause was dismissed. The plaintiff has appealed, and insists that the court erred in sustaining the general demurrer to his petition.

We think the general demurrer was properly sustained. While it is true that, had the operative of appellee's street car stopped his car and had permitted appellant to enter, he would not have suffered the injury complained of, it is made to appear on the face of plaintiff's petition that the failure of the street car operative to take him on as a passenger was not the proximate cause of his injury, but that such injury resulted from a cause intervening between the alleged negligence of the defendant and the damage sustained, to wit, the act of a third person in driving his automobile against plaintiff. The petition does not allege actionable negligence, nor does it allege any proximate causal relation between the negligence alleged and the injury

"As a general rule a wrongdoer is answerable for the consequences of his fault only so far as they are natural and proximate, and is not liable for consequences which arise from a conjunction of his fault with other circumstances which are of an extraordinary nature." 17 Corpus Juris, 750.

"A wrongdoer is liable only for damages as are the proximate result of his wrongful act and not for remote damages. Remote damages are such as are the result of accident or an unusual combination of circumstances which could not reasonably be anticipated, and over which the party sought to be charged had no control." 17 Corpus Juris, p. 715.

We think the trial court would have been justified in concluding that the accident shown by plaintiff's petition was an extraordinary one, one which is not in experience and observation of mankind the natural consequence of the act of negligence complained of. The accident occurring under the circumstances and in the manner alleged by the plaintiff was not such an accident as would usually occur under similar circumstances. It was not a probable occurrence, but a possibility only; one which would not, according to ordinary and usual experience, happen one time in one thousand.

As already pointed out, the striking of the...