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

• Decision Date: 17 January 1901
• Parties: GALVESTON, H. & S. A. RY. CO. v. WASHINGTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 538

GALVESTON, H. & S. A. RY. CO. v. WASHINGTON.¹

Court of Civil Appeals of Texas.

January 17, 1901.²

Error from district court, Wharton county; Wells Thompson, Judge.

Action by George Washington, as next friend of James Washington, against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

G. G. Kelley and A. L. Jackson, for plaintiff in error. Jacob C. Baldwin, J. V. Meek, W. L. Hall, and R. M. Brown, for defendant in error.

PLEASANTS, J.

This suit was instituted by the defendant in error, George Washington, as the next friend of the minor, James Washington, to recover of plaintiff in error damages for injuries to the person of said minor, alleged to have been caused by the negligence of plaintiff in error. The original petition was filed on the 3d day of January, 1899. In the first amended original petition, filed on the 12th day of April, 1899, and upon which the case was tried, plaintiff alleges that the defendant railway company had constructed and was operating its railroad on Colorado street, in the city of Houston, which street ran in an eastwardly and westwardly direction through said city, intersecting Winter street at right angles; that at the intersection of said streets the defendant had constructed certain plank walks for the use of pedestrians in passing along Winter street and crossing defendant's track, and that at the time of the injury complained of the planks constituting this walk adjacent to the track had become old, worn, and rotten, and that on the 25th day of March, 1896, while James Washington, a negro boy of immature judgment, then about 10 years old, was walking on the plank sidewalk, he stepped upon the same for the purpose of passing over the defendant's track and right of way, and one of the planks broke, causing his foot to slip and become fastened in one of the holes; that, while James Washington was trying to extricate his foot, one of the defendant's engines, with cars attached to it, approached from the west at a high and dangerous rate of speed,—about 30 miles per hour,—which speed was in violation of the city ordinance of the city of Houston prohibiting a speed in excess of 6 miles per hour; that the defendant's servants in charge of the engine and cars approached without ringing the bell or giving any warning whatever of the approach of the said engine and cars, and failed to keep a proper lookout for the purpose of discovering persons who might be upon the defendant's track; or, if said servants did in fact see the said James Washington in his perilous position, then, nevertheless, they made no effort whatsoever to stop the engine and cars, but negligently run upon and over James Washington, mashing and cutting off both his feet below the knees, and thereby causing him serious and permanent injury and physical and mental anguish, to his damage in the aggregate sum of $25,000, for which judgment was prayed in his behalf. The defendant's first amended original answer, filed May 3, 1900, contained: (1) A general demurrer. (2) A general denial. (3) A special plea setting up the statute of limitation of one year and the statute of limitation of two years in bar of plaintiff's action, the same having accrued, if at all, on the 25th day of March, 1896, and this action having been instituted by the filing of plaintiff's petition on the 3d day of January, 1899. (4) Contributory negligence on the part of James Washington, consisting in his failure to use his senses and his judgment to discover the approaching train and avoid it, or in stepping upon defendant's track, or getting into a dangerous position and placing himself near the cars or in front of the approaching train of the defendant, knowing of its approach, and at such time and under such circumstances as to bring about and contribute to his injury. (5) Contributory negligence on the part of James Washington, in this: That while the cars of defendant were passing over its track the said James Washington trespassed upon its track and roadbed; that he then and there became, or attempted to become, a trespasser upon the moving cars of defendant, and, while the said cars were in motion, he, in a reckless and negligent manner, took hold of some portion of one of defendant's cars, and got upon the car, or endeavored to get upon it, and ride; and that, by reason of his reckless and heedless conduct, and by reason of the motion of the cars at the time, James Washington was thrown or fell under the edge of the car, so that his foot or legs were mashed or injured; and that such conduct on the part of James Washington was not only grossly negligent and reckless, but was in violation of the laws of the state of Texas, —all of which reckless and unlawful conduct on his part directly contributed to and caused his injury. To this answer plaintiff filed his first supplemental petition, which contains the following: "And, specially answering the plea of the statute of limitation of two years pleaded by the defendant, says that the same sets up no defense to this plaintiff's suit, for the reason that on the date of the injuries to plaintiff he was a minor 10 years of age; that he is now only a minor of 15 years of age; wherefore he says that said plea sets up no defense to the cause of action pleaded for James Washington, wherefore he prays judgment." The defendant's first supplemental answer, filed May 3, 1900, in response to plaintiff's first supplemental petition, alleged that on the 4th day of April, 1896, the said James Washington, by his father and next friend, George Washington, instituted a suit on the identical cause of action and alleged injury forming the basis of the suit at bar; that said suit was filed by Messrs. Wilson & Wood, as attorneys of record for plaintiff and his next friend, in the district court of Harris county, Tex.; that this defendant appeared in said cause, and filed its answer therein, and that on the 5th day of October, 1896, plaintiff failing to further insist upon or prosecute its suit in said Harris county district court, the same was dismissed for want of prosecution, and was stricken from the docket; that, if any disability of minority ever existed, as alleged by plaintiff, relieving James Washington from the bar of the statute of limitation, nevertheless such disability was removed and waived by the institution and prosecution and subsequent abandonment and dismissal of the said suit in the district court of Harris county, Tex.; that the suit in the Harris county district court, after being dismissed was never reinstated, and that from and after the date of its dismissal, and by virtue of the proceedings had in said cause, the statute of limitation began to run, and has continued to run, against the said James Washington's right of action, if any he has or ever had, and against his right, if any he ever had, to sue by the said George Washington as next friend, and against the right of the said George Washington to prosecute the same; and defendant, in this connection, renewed its plea of the statute of limitation of one year and of two years in bar of this action. To this supplemental answer plaintiff filed a general demurrer, which was sustained by the court, to which ruling the defendant excepted. Upon a trial of the cause before a jury on the 7th day of May, 1900, a verdict and judgment was rendered in favor of plaintiff for $10,000, and it was further adjudged by the court that one-half of the amount of said judgment was owned by Baldwin & Meek, and it was ordered that, when said judgment was collected by the sheriff, or turned into the registry of the court, one-half of same be turned over to said Baldwin & Meek, and their receipt be taken for the same. Defendant's motion for a new trial in the court below having been overruled, it prosecutes this writ of error, and seeks a reversal of the judgment of the court below upon numerous grounds set out and urged in its assignment of errors and brief filed herein, only a few of which we feel called upon to discuss.

The first assignment of error complains of the action of the court below in sustaining the demurrer to the first supplemental answer, and the proposition submitted under said assignment is as follows: "When a parent, as next friend for the minor, institutes a suit under authority of article 3498u, Rev. St. Tex., the status of the minor is thereby altered, and his disability to maintain the action and recover for injuries sustained is removed; and, in the event such suit should be finally dismissed and abandoned, limitation will run against the cause of action therein sued upon, from the date of such dismissal, against the minor and against the parent as his next friend." We cannot assent to the soundness of this proposition. The bringing of a suit by a person who sues under article 3498u of the Revised Statutes, as next friend for a minor, in no way changes the status of the minor. The disabilities of a minor are not removed nor suspended by the bringing of such suit, as the minor is not, under said statute, relieved of any of his disabilities, and can himself assert no right in the institution, conduct, or disposition of such suit. The statute does say that a minor who has no legal guardian may bring suit in any court in this state by his next friend; but, notwithstanding this language, the right to act in bringing the suit is conferred on the next friend, and not on the minor, and the effect and intention of the statute is that the next friend of any minor, having a sufficient cause of action, and who has no legal...