G., H. & H. R'Y Co. v. Moore

• Citation: 59 Tex. 64
• Decision Date: 06 March 1883
• Docket Number: Case No. 1584.
• Court: Supreme Court of Texas
• Parties: G., H. & H. R'Y CO. v. GRANT MOORE.

59 Tex. 64

G., H. & H. R'Y CO.

v.GRANT MOORE.

Case No. 1584.

Supreme Court of Texas.

Mar. 6, 1883.

ERROR from Harris. Tried below before the Hon. James Masterson.

Grant Moore, who brought this suit, he being but six years old when injured by plaintiff in error, alleged that on the 20th of December, 1880, while crossing appellant's road at a point where it crosses Maple street, in the city of Houston, he was run over by its cars, and his left leg thereby cut off between the knee and the ankle. It was alleged that the occurrence took place within the corporate limits of Houston, at a public street crossing, and was caused by the negligence of the servants in charge of its train, and without fault on the part of appellee. The negligence complained of was that the cars were running faster than allowed by ordinance of the city, and that the bell was not rung, the whistle sounded, nor other warning given to appellee of the fact that the train was in motion. He claimed $10,000 damages.

The road pleaded:

1. General issue.

2. Contributory negligence of plaintiff.

3. Contributory negligence of plaintiff's mother in permitting her child at such tender age to be on the street unattended, at a public crossing where there were railroads crossing the street, which were constantly in use by trains switching in the yard and running on the main lines.

Verdict for appellee for $2,091.

Motion for new trial on the grounds:

1. That the court refused charges 1 and 2 asked by appellant.

2. Because the verdict was not sustained by the evidence, but was contrary thereto.

Only one witness--Henry Kimble--a boy ten years old at time of trial, saw appellee immediately before the accident, and he stated that appellee had crossed the track when he saw him last. He crossed the track about twelve feet ahead of appellee, and saw the train on the track about forty-eight feet from him, but did not notice that it was moving. He stated that where he and appellee crossed the track and where appellee was injured, was a public crossing. “There was no whistle being blown, nor was any bell ringing either before or after Grant and I got to the track, nor when we crossed it, nor when Grant was injured.”

He and Grant were walking together when they approached the track from the west side, and after he had crossed a “few feet beyond the east side he heard a cry, and looking back saw Grant lying in the ditch on the east side of the track with his left leg crushed and mangled.”

The plaintiff was six years old in July last before he was injured, which was in December, 1880.

On the trial, on examination by the court, he was held incompetent to testify because of his tender years and want of understanding of the nature of an oath. He lived with his mother, and she had control of him. They lived on the east side of the railroad track. She sent her son on an errand to a neighborhood on the west side of the track. She says that from where she lived to the neighborhood to which she sent him he had to cross the railroad track; and the usual place of crossing it was that at which he was injured.

Baker & Botts, for plaintiff in error, cited Hartfield v. Roper, 21 Wend., 615; Morgan v. Brooklyn R. R. Co., 38 N. Y., 459;Meeks v. So. Pac. R. R. Co., 52 Cal., 602; Ervin v. C. & N. W. R. R. Co., 38 Wis., 630 (1 and 2).

Jones & Garnett, for defendant in error, cited Teal et al. v. Terrell et al., decided at Galveston term, 1883; Mitchell v. DeWitt, 20 Tex., 299;47 Tex., 148;22 Tex., 223;18 Tex., 871;17 Tex., 636; 2 Thomp. on Neg., pp. 1184-1197; Bellefontaine R. R. Co. v. Snyder, 18 Ohio St., 400;Cleveland R. R. Co. v. Manson, 30 Ohio St., 451;Daly v. Norwich R. R. Co., 26 Conn., 591;Birgers v. Gardner, 19 Conn., 507;Norfolk R. R. Co. v. Ownsby, 27 Gratt., 455;Government Street R. R. Co. v. Hanlon, 53 Ala., 70;Robinson v. Cone, 22 Vt., 213; 48 Pa. St., 218; 31 Pa. St., 372, 358; 65 Pa. St., 269; 75 Pa. St., 257; 57 Pa. St., 172; 1 Thomp. on Neg., pp. 424, 425, 426, sec. 7; 2 Thomp. on Neg., p. 1157; Haley v. Earle, 30 N. Y., 208;Trow v. Vermont, etc., R. R. Co., 24 Vt., 487;Cummins v. Presly, 4 Harr., 315;Austin v. New Jersey Steamboat Co., 43 N. Y., 75;Sullivan v. Louisville Bridge Co., 9 Bush, 81-90;Locke v. First Division, etc., R. R. Co., 15 Minn., 350; Northern Central R. R. Co. v. Price, 29 Md., 420; Kenyon v. New York, etc., R. R. Co., 5 Harr., 480; Baltimore, etc., R. R. Co. v. Trainor, 33 Md., 542;Myers v. Chicago, etc., R. R. Co., 59 Mo., 223; Davies v. Mann, 10 Mees. & W., 545 (English Court of Exchequer); also reported in 2 Thomp. on Neg., p. 1105; Radley v. The London & Northwestern Railway Co. (English Court of Exchequer), 2 Thomp. on Neg., p. 1108.

STAYTON, ASSOCIATE JUSTICE.

The charge in all cases should be made with reference to the case made by the evidence; and in this case the court did not err in charging with regard to an injury inflicted upon the plaintiff while upon the track of the defendant's railway, for the facts in evidence left but little, if any, doubt that the injury was received by the plaintiff while upon the track of the railway. There was no assumption of that fact, however, in the charge; nor is there any complaint that the charges were not correct as legal propositions.

It is claimed that the court erred in refusing to give the following charge: “The plaintiff has been held incompetent to testify because of his tender years. Now, if you believe from the testimony that the plaintiff, at the time he was injured, was so young and inexperienced as not to be capable of taking ordinary care of himself for safety when crossing railroad tracks where trains are frequently running, and if you further believe that the plaintiff lived with his mother and was under her care and control, and that she had sent him on the day he was injured on an errand which required him to cross the railroad track in going and returning, and was in the habit of sending him across the railroad without protection, and that this was negligence on her part, and that such negligence of hers contributed to the injury of her son, or, in other words, that he would not have been injured but for such negligence of his mother, then you will find for the defendant.”

The court had instructed the jury that “if the proof satisfy you that the defendant was negligent in running its engine and cars on and over its track, and that plaintiff's injuries resulted from such negligence, then find for plaintiff, unless the evidence shows that plaintiff contributed by his own negligence to such injury; and in considering the question of contributory negligence, being on a railroad track is prima facie evidence of negligence, if the person was of age and discretion to realize the danger; but in a case of a minor or child of tender years, only such care, discretion and judgment as a child has, i. e., a child's discretion of such tender years, is required; but whether you find plaintiff guilty of contributive negligence or not, if defendant was not guilty of negligence, your verdict should be for the defendant.”

The third charge asked by plaintiff and given in the court below was as follows: “If the jury believe from the evidence that the plaintiff was injured as he alleges, and that just before and at the time of the injury he was on defendant's railroad track at or about a public crossing, and that he did not see or know of the approach of the train of cars that injured him, and if you further believe from the evidence that the servants and agents of defendant were in charge of and running said train of cars on said track, and by the use of ordinary and reasonable care and prudence could have seen the plaintiff and prevented said injury, then, if they failed to use such care and prudence, and by reason thereof plaintiff, without negligence on his part, was injured, he is entitled to recover.”

These charges submitted to the jury, fairly and clearly, the question of negligence in the plaintiff and defendant, and there was evidence tending...