Galveston Electric Co. v. Hansen

• Citation: 7 S.W.2d 934
• Decision Date: 10 May 1928
• Docket Number: (No. 9131.)
• Parties: GALVESTON ELECTRIC CO. v. HANSEN et al.
• Court: Court of Appeals of Texas

7 S.W.2d 934

GALVESTON ELECTRIC CO. v. HANSEN et al.

(No. 9131.)

Court of Civil Appeals of Texas. Galveston.

May 10, 1928.

Rehearing Denied May 31, 1928.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Action by Selma Hansen for herself and as next friend of her minor son, William, against the Galveston Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, for appellant.

W. E. Price, of Galveston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee Selma Hansen for herself and as next friend of her minor son, William Hansen, to recover damages for personal injuries to the minor alleged to have been caused by the negligent operation of a street car owned and operated by appellant in the city of Galveston.

The petition alleges, in substance, that on or about the 13th day of October, 1925, the plaintiff William Hansen, who was about 6 years old, was struck and injured by a street car of appellant which was being operated by one of appellant's employees over and along Twenty-First street in the city of Galveston; that, at the time his injury occurred the boy was crossing Twenty-First street on his way from his school on the east side of the street to the Galveston Orphans' Home, of which he was an inmate, and which is situated on the west side of the street.

The allegations of negligence contained in the petition and submitted to the jury as grounds for recovery were the failure of the motorman in operating the car "to keep a lookout for persons on or near said track, and particularly for plaintiff, who was attempting to cross said track," and in operating the car "at such a reckless and careless rate of speed, under all the circumstances, that the motorman could not stop said car until it had dragged plaintiff a distance of 30 feet."

The defendant answered by general demurrer and general and special denial of the negligence charged in the petition, and specially pleaded contributory negligence on the part of William Hansen in attempting to cross the street in front of the approaching car.

The trial in the court below with a jury resulted in a verdict and judgment in favor of the defendant against the individual claim of plaintiff Selma Hansen, and in favor of plaintiff William Hansen against the defendant for the sum of $5,000.

The evidence shows that William Hansen, who at the time of his injury was a little over 6 years old, while crossing Twenty-First street in the city of Galveston, on his way from a kindergarten school, at which he was a pupil, to his home at the Galveston Orphans' Home, was struck and seriously injured by a street car operated by appellant on Twenty-First street. The school was situated east and north of the intersection of Twenty-First street and Avenue L. The orphans' home is situated a block south of Avenue L. and fronts on the west side of Twenty-First street. The boy was struck by the car when near the center of the street and a short distance south of the intersection of the street with Avenue L. He testified, in substance, that he and two other boys who left the school with him were engaged in a walking race from the school to the orphans' home; that, when they reached the intersection of Avenue L. and Twenty-First street, and started across the street, he was a little ahead; that he did not go straight across the street, but "turned a little up towards the orphans' home"; and that he did not see the car until it struck him. He heard no gong or bell on the car.

There are two car tracks on this street, one east and the other west of the center of the street, which has a width of 48 feet between the sidewalk curbs. The car that struck the boy was going north on the eastern track. After the car was stopped, the boy was found lying between the tracks 35 or 40 feet south of Avenue L.

As the car approached the place of the accident, it was running at a speed of 15 miles an hour, and it was stopped in 35 or 40 feet after it struck the boy. The motorman testified that he did not slacken the speed of the car when he first saw the boys on the sidewalk, but, as soon as the Hansen boy started running across the street, he sounded his gong, applied his brakes, and did all he could to prevent striking the boy.

At this time the orphans' home had something over 40 inmates, and about 30 of these children attended the school on the east side of Twenty-First street. Other children in that locality, which was a thickly settled portion of the city of Galveston, crossed Twenty-First street in that locality on their way to and from school.

We think the evidence is sufficient to sustain the findings of the jury that the motorman was negligent in not keeping a proper lookout to discover the approach of the boy to the track, and in not operating the car at a careful rate of speed, under all of the circumstances shown by the evidence; and appellant's assignment complaining of the verdict on the ground that it is so against the great weight and preponderance of the evidence as to require a reversal of the judgment cannot be sustained.

In submitting these issues of negligence to the jury, the charge, after defining negligence, ordinary care, and proximate cause, contains the following instructions:

"I further charge you that it was the duty of the operator of the defendant's street car, at the time and place in question, to use...