Galveston City Ry. Co. v. Hanna

• Decision Date: 23 February 1904
• Citation: 79 S.W. 639
• Parties: GALVESTON CITY RY. CO. v. HANNA.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 639

GALVESTON CITY RY. CO. v. HANNA.^*

Court of Civil Appeals of Texas.

February 23, 1904.

Appeal from District Court, Galveston County; Frank M. Spencer, Judge.

Action by John G. Hanna, by John Hanna, his next friend, against the Galveston City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Terry, Ballinger, Smith & Cavin, for appellant. James B. & Chas. J. Stubbs, for appellee.

PLEASANTS, J.

This is a suit by appellee against the appellant to recover damages for personal injuries alleged to have been caused him by the negligence of appellant. The petition alleges that appellee was, on the 8th day of April, 1902, struck and run over by a street car operated by appellant over the public streets of the city of Galveston. The grounds of negligence alleged were that at the time of the accident the car was being run at a rapid and dangerous rate of speed, and was not under proper control, and that it was not equipped with a life guard or fender on the front end of the car, and that the brake or appliance for stopping the car was not in good repair and working order, and that the motorman was negligent in not using ordinary care to check the speed of the car and get it under proper control when he saw, or might have seen, that the appellee was exposed to danger, and that he failed to keep a proper lookout. The failure to have the car equipped with a life guard or fender was alleged to be a violation of a city ordinance of the city of Galveston, and it was also alleged to be negligence independently of the ordinance. It was alleged that the rate of speed at which the car was traveling was in violation of an ordinance of the city, and was also a dangerously rapid rate of speed, independently of the ordinance. The ordinance alleged to control the rate of speed of street cars was set up in the petition, but the court sustained a demurrer thereto, holding that the said ordinance had no application to street cars. The injuries, direct and consequential, caused appellee by being struck and run over by said car are specifially alleged, and damages are asked in the sum of $30,000. Appellant answered by general and special exceptions (the one with reference to the said speed ordinance being sustained), general denial, and plea of not guilty, and specially that plaintiff was guilty of contributory negligence, which caused and contributed to his own injury in that he was deaf (a fact which was unknown to the employés of the appellant operating the car by which he was injured), and that he went upon the track of the appellant upon which the car was traveling at a point which was not a street crossing, so suddenly and unexpectedly, and in such close proximity to and immediately in front of the advancing car, that it could not be stopped before it collided with the plaintiff and he was injured, although the motorman in charge of the car used every effort in his power and all the means at his command to stop the car; and that the plaintiff utterly failed to use any care or prudence to take note of his surroundings, or to observe the approach of the car by means of his eyesight, although he was traveling on a portion of the street not commonly used or set apart for pedestrians. The case was tried before a jury, and resulted in a verdict and judgment on April 20, 1903, for plaintiff, for $5,000.

The evidence contained in the record is sufficient to sustain the following fact conclusions: On the morning of April 8, 1902, appellee, who at that time was about 12½ years old, while crossing East Market street, in the city of Galveston, was struck, knocked down, and run over by a street car which was being operated by appellant over said street, and was thereby injured in the manner alleged in the petition. At the time of his injury appellee was crossing said street in a diagonal direction from the northeast to the southwest, and the car which struck him was running along the street from west to east. The point at which the collision ocred was 60 or 70 feet west of the west line of Fourteenth street, which street crosses Market street at right angles. The car was being run at a rapid rate of speed, estimated by some of the witnesses at from 15 to 18 miles an hour,...