Galveston Electric Co. v. Hansen

• Citation: 15 S.W.2d 1022
• Decision Date: 10 April 1929
• Docket Number: (No. 1057-5267.)
• Parties: GALVESTON ELECTRIC CO. v. HANSEN.
• Court: Texas Supreme Court

15 S.W.2d 1022

GALVESTON ELECTRIC CO. v. HANSEN.

(No. 1057-5267.)

Commission of Appeals of Texas, Section B.

April 10, 1929.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Selma Hansen, for herself and as next friend of her minor son, William Hansen, against the Galveston Electric Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals , and defendant brings error. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, and Joyce Cox, of Dallas, for plaintiff in error.

W. E. Price, of Galveston, for defendant in error.

SPEER, J.

The petition for writ of error has been granted to review the decision of the Court of Civil Appeals affirming the judgment of the trial court in a personal injury case wherein defendant in error, a child six years old, was injured by one of plaintiff in error's street cars, while crossing Twenty-First street in the city of Galveston. 7 S.W. (2d) 934.

The trial court submitted two grounds of recovery, the first being:

"I further charge you that it was the duty of the operator of the defendant street car at the time and place in question to use ordinary care to watch for and observe the approach of persons, and especially children such as plaintiff, William Hansen, toward the track on which said car was being operated, and to use ordinary care to prevent striking such persons. Keeping the foregoing definitions and instructions in mind, will you answer the following questions:

"(1) Did the operator of the defendant street car, at the time and place in question, use ordinary care to observe the approach of the plaintiff William Hansen toward the track on which said car was being operated?"

The second issue was:

"I also charge you that it was the duty of the operator of the defendant street car to run and operate said car at the time and place in question at a moderate and careful rate of speed under all the circumstances so that said car might be brought to a stop within a reasonable distance by said operator, should he observe children such as the plaintiff, William Hansen, upon or approaching said track. With this instruction in mind, you will answer the following question:

"Was or was not the operator of defendant street car at the time and place in question operating and running same at a moderate and careful rate of speed under all the circumstances?"

The Court of Civil Appeals held, as to the submission of the last issue, that the instructions accompanying it were violative of the statute which forbids the court in its charge to encroach on the province of the jury — that it was upon the weight of the evidence. But it declined to reverse the judgment, because it further held there was no error in the submission of the first issue and that the verdict on that supported the judgment.

It is, of course, true whatever the error with respect to the second issue if the first issue is unobjectionable, the judgment of the trial court must be sustained upon that ground. But we are of the opinion there was error in the submission of the first issue.

The court is forbidden by statute to comment upon the weight of evidence in his rulings upon admitting the same and likewise, by interpretation of the statutes of instructions, is forbidden to comment upon the testimony in the instructions.

It is only where an act is made negligent by statute (Missouri, K. & T. R. Co. v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. R. A. [N. S.] 998, 16 Ann. Cas. 1107), or where the facts are such...