Galveston, H. & S. A. Ry. Co. v. Marti

• Decision Date: 01 February 1916
• Docket Number: (No. 7072.)
• Citation: 183 S.W. 846
• Parties: GALVESTON, H. & S. A. RY. CO. v. MARTI.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

183 S.W. 846

GALVESTON, H. & S. A. RY. CO. v. MARTI.^*

(No. 7072.)

Court of Civil Appeals of Texas. Galveston.

February 1, 1916.

Rehearing Denied February 24, 1916.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by F. J. Marti against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Eugene A. Wilson, both of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

McMEANS, J.

F. J. Marti brought this suit against the Galveston, Harrisburg & San Antonio Railway Company to recover damages sustained by him on the night of July 28, 1914, resulting from a collision of an automobile, which he was driving, with a freight car of defendant which was standing upon the defendant's railway track laid upon Church street in the city of Galveston, alleged to have been left on said street by defendant in violation of an ordinance of said city, which reads as follows:

"That it shall be unlawful for any railroad company, or their agents and employés, to permit any loaded or empty freight car or cars to remain standing on any track laid on any street in the city of Galveston, except for the purpose of temporary switching or work. * * *"

Plaintiff alleged that, while driving his car in a westerly direction on Church street, a public street in the city of Galveston, at night, he met a horse-drawn vehicle, and in obedience to the rules of the road he turned to the right to avoid collision with the vehicle, and when he did so he collided with said freight car, which was left by defendant on said street unlighted and unguarded, and of the presence of which he did not know, and could not have known by the exercise of ordinary care. In the fourth paragraph of his petition he alleged, in substance, that the defendant was guilty of gross negligence in leaving and permitting to be left in Church street, at said time and place, said freight car, in violation of said ordinance, and that such negligence was the proximate cause of the injuries and damages sustained by him. Defendant pleaded that plaintiff's injuries directly resulted from his own negligence and contributory negligence in several particulars, which we do not deem necessary to specifically set out.

The case was submitted to a jury upon special issues, all of which were answered favorably to the plaintiff, and by their verdict they found plaintiff's damages to be $5,000 for personal injuries, $100 for medical expenses, $200 for nursing, and $700 for damages to plaintiff's automobile, aggregating $6,000. The plaintiff entered a remittitur of $50 on the item of medical expenses, whereupon the court entered judgment for plaintiff for $5,950, from which the defendant has appealed.

By its first assignment of error the appellant complains that the court erred in not giving its special charge, which requested the court to peremptorily instruct the jury to return a verdict in its favor. The contention is, in effect, that the undisputed evidence shows that the freight car was left standing on the track for temporary work, and that there was therefore no violation of said ordinance in leaving it there in such circumstances. We think there was sufficient evidence introduced upon this issue to require its submission to the jury, and that therefore the court did not err in refusing to give the requested charge. It was shown that the car was placed on the track where the collision occurred on July 28, 1914; it was loaded with gravel and placed there for the purpose of being unloaded, and was unloaded on the same day. Usually the hands who did the unloading quit work at 6 o'clock in the afternoon, but sometimes the unloading was continued at night. If was undisputed that the car had been unloaded before plaintiff's automobile collided with it, which occurred about 11:30 o'clock at night. The car, however, was permitted by the defendant to remain standing upon the track after it was unloaded, and all through the night, and a part, at least, of the next day.

The ordinance forbade the defendant, its agents and employés, from permitting any freight car, such as this was, whether empty or loaded, to remain standing on its track on Church street, except for temporary switching or work. We think that under these facts it was a question for the jury to say whether the defendant had violated the ordinance. This question was propounded to the jury, and they answered it in the affirmative. We are not now concerned with the question of whether there was any evidence to authorize the jury to answer the question negatively. The assignment is that the undisputed evidence shows that the car was permitted to stand in the street for temporary work. We think it is clear that it was placed there for "temporary work," but that the evidence justified the jury in believing that it was permitted to remain standing on the street after the temporary work of unloading had been accomplished, and was therefore permitted by defendant to remain standing on the street for other than temporary switching or work. The assignment is overruled.

The second assignment also complains of the refusal of the court to peremptorily instruct a verdict for defendant. The proposition under this assignment asserts that it is not negligence per se for a railway company, which operates a team track located along one side of a street served with electric arc lights, to leave a freight car upon said track for unloading by consignee, and, in the absence of notice that the car had been unloaded by the consignee, to permit same to remain on the street during nighttime following the day the car was so placed, where the usual time required for unloading such cars was about 48 hours, and sometimes the work of unloading is completed during the nighttime. It is conceded that the proposition is abstractly correct. Acts or omissions complained of as negligence can never be said to be negligence per se, unless in violation of law, or so opposed to the dictates of common prudence as that the minds of ordinary men cannot differ as to the conclusions to be drawn from them. But, conceding the correctness of the proposition, it furnishes no reason for sustaining the assignment. The plaintiff based his charge of negligence upon the violation by defendant of the ordinance hereinbefore...