Galveston City R. Co. v. Hewitt

• Decision Date: 08 March 1887
• Citation: 3 S.W. 705
• Parties: GALVESTON CITY R. CO. <I>v.</I> HEWITT.
• Court: Texas Supreme Court

3 S.W. 705

GALVESTON CITY R. CO.

v. HEWITT.

Supreme Court of Texas.

March 8, 1887.

Appeal from district court, Galveston county.

The appellee, James M. Hewitt, a minor, suing by Richard Hewitt, his father and next friend, brought this action against the appellant, the Galveston City Railway Company, claiming $30,000 damages for personal injuries caused by the gross carelessness and negligence of appellant's agent, the driver of one of its street cars, so operating the car that it ran over appellee, he then being only 19 months old, and on appellant's tracks without fault or knowledge of his parents. The jury found for appellee, and fixed his damages at $7,500, and the railway company appeals.

F. Charles Hume, for appellant. M. E. Kleberg and E. D. Cairn, for appellee.

STAYTON, J.

The charge of the court complained of in the second assignment was correct, and there was evidence which made the charge applicable to the case. The appellee, a child of 19 months of age, was seen on the track of appellant's street railway in advance of an approaching car, which ran over him. Whether the driver saw the child does not appear, but the inference, from the fact that he did not stop the car until he had reached the next corner after running over the child, is that he did not. The only person who testified in the cause that saw the accident, at a distance of about 100 feet from the approaching car, saw the child on the track between herself and the car, and gave a warning cry of danger, which was unheard or unheeded. The driver was on the car, but whether at his post or inside of the car is left in doubt. The animal drawing the car seems to have seen the danger, which the driver ought to have seen, and ran off to one side of the track. The accident occurred in a public street about 4, 5, or 6 o'clock on a bright afternoon. The charge given, without request, made the right of the appellee to recover to depend upon the fact that his injury resulted from the negligence of the driver, and it assumed no fact. It informed the jury that "negligence is the want of such care and prudence as prudent persons observe under similar circumstances, and negligence is a question of fact to be proved just as any other fact," and that the burden of proving its existence rested upon the plaintiff. At the request of the defendant, the court gave the following instructions: "If you believe from the evidence that the plaintiff was injured by being run over by the car, you will find for the defendant, unless it appears to your satisfaction that the running over of the plaintiff by the car was by reason of the negligence of the driver." "If you believe from the evidence that the plaintiff was injured, but do not believe that such injury resulted from the plaintiff being run over by the car, you will find for the defendant." The brief and argument for appellant assert that the charge "absolutely assumes — presupposes — that the plaintiff was injured by the defendant, and that the injury was due to defendant's negligence." The charges contain no such assumptions, and are remarkably free from such defects.

At request of counsel for appellee the court instructed the jury as follows: "The jury are instructed that it was the duty of the defendant company to exercise the highest degree of diligence towards a child of tender years and without discretion, and that slight negligence would make defendant company liable in damages." This charge is assigned as error.

Since the case of Coggs v. Bernard, 2 Ld. Raym. 909, three degrees or grades of negligence, with their equivalent grades of diligence, have been recognized by English and American text writers, and by the courts; but, however correct in theory the classification may be, the utmost difficulty has been found by the courts in applying it to the ordinary affairs of life; and many of the most learned have regretted their recognition, while all, in the actual adjudication of cases, have more or less ignored the classification. While to the mind of the learned jurist trained to theoretical refinements, and capable of making nice distinctions, grounds on which the grades may stand may be perceived, yet the same minds, when called upon to apply the theories to the facts of given cases, will be unable to fix the point in fact at which the one grade ceases to exist and another begins. Theories which cannot be given a practical effect, even by those most skilled in technically correct theorizing, certainly ought not to be given much weight in the adjudication of the multiform affairs of life which must be conducted through persons of ordinary intelligence, largely without any theoretical or technical learning. When a person inadvertently omits or fails to do some act required in the discharge of a legal duty to another, whether such duty arises from contract or from the nature of the employment in which the person is engaged, then such an omission constitutes actionable negligence if, as an ordinary or natural sequence, it produces damage to another. The omission may be classified as gross or slight negligence, or simply as negligence, or as a failure to use the highest, ordinary, or slight degree of diligence; but the legal obligation, at all events, to make compensation to the injured person, exists if the omission was a breach of duty and the proximate cause of the injury. What facts will constitute that diligence which the law requires, must depend on the circumstances of each particular case. The omission must be considered in relation to the business in which the person whose duty it is to exercise care is engaged. If the business be one hazardous to the lives of others, the care to be used must be of a nature more exacting than required when no such hazard exists; the greater the hazard, the more complete must be the exercise of care. The exercise of that care requisite to the discharge...