Ft. Worth St. Ry. Co. v. Allen

• Decision Date: 16 January 1897
• Citation: 39 S.W. 125
• Parties: FT. WORTH ST. RY. CO. v. ALLEN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

39 S.W. 125

FT. WORTH ST. RY. CO. v. ALLEN et al.¹

Court of Civil Appeals of Texas.

January 16, 1897.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by Benjamin Allen and others against the Ft. Worth Street-Railway Company and others. Judgment for plaintiffs, and the defendant railway company appeals. Affirmed.

Capps & Cantey, for appellant. R. L. Carlock, T. J. Powell, and C. M. Templeton, for appellees.

HUNTER, J.

This suit was filed by Benjamin Allen against the city of Ft. Worth to recover damages for personal injuries received by reason of being jarred or thrown from the seat of a delivery wagon on Jones street on May 1, 1893, caused by his wagon wheel coming in contact with the rail of a street-car track owned by the Ft. Worth Street-Car Company, the city having permitted the street to become worn away from the rail until it stood above the surface of the street from one to four inches. The city pleaded a general denial, and contributory negligence on the part of plaintiff, in that he saw and knew the condition of the street, and drove over it and against the street-car rails at a reckless rate of speed, and without ordinary care and prudence, and by reason whereof he caused and contributed to his injuries; and also pleaded, by way of cross action against the Ft. Worth Street-Railway Company, the North Side Railway Company, and N. Harding, receiver of the North Side Railway Company, all of whom the city caused to be made parties to the suit, that, if it was liable for such injuries, then the Ft. Worth Street-Railway Company was liable to it for whatever damages it might be compelled to pay, by reason of the fact that on the 20th day of June, 1884, the city granted to said Ft. Worth Street-Railway Company the right to build and operate its street-car line on Jones street, upon the express conditions that said car company "should keep in repair all street crossings along the line of its track upon said street, and that the track of said railway should be laid in such manner as not to obstruct travel; that said company should construct all of its tracks, north of the Texas & Pacific reservation, of tram or Johnson rail, and that the roadbed, and 18 inches on either side of the rails, be paved with Telford macadam; * * * and, further, that said company should at all times be subject to police ordinances and regulations then in existence, or which might thereafter be adopted by the city council of said city, with reference to the regulation of street railways"; that, by ordinances of the city council afterwards adopted, "all street-railway companies operating lines of street railway over and upon the streets of said city were required to conform their tracks to the grade of the street, and to keep the space between their tracks well filled in on a level with the street, and to maintain the same in such condition at all times so that the tracks so laid in the streets would not be an obstruction to travel." The city then alleges that the said Ft. Worth Street-Railway Company failed and refused to comply with all the conditions, regulations, and ordinances above named, pleading specifically wherein it failed to comply with each requirement. The city also pleaded that if it was not entitled to recover against the Ft. Worth Company, by reason of its having leased its car lines in the city in November, 1888, to the North Side Railway Company, then it set up the same causes of action against the North Side Company, and also against N. Harding, receiver of the North Side Company, and prayed for judgment against each of them in the alternative. The Ft. Worth Street-Railway Company answered the pleas of the city over against it by demurrers and by special pleas, alleging that at the time of the accident, and for several years prior thereto, it was not operating any line of street railway, nor the line on Jones street, and was not in possession of such line; that in 1890 said Jones Street Line (having been theretofore leased by appellant to the North Side Railway Company) was by the district court of Tarrant county placed in the hands of a receiver, viz. N. Harding, over the protest of appellant, and such possession had been held by the court, through its receiver, and was still so held, and appellant, if bound by the terms of said ordinance, had no power to carry out the terms thereof,...