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

• Decision Date: 13 May 1901
• Citation: 63 S.W. 534
• Parties: GALVESTON, H. & S. A. RY. CO. v. WASHINGTON et al.
• Court: Texas Supreme Court

63 S.W. 534

GALVESTON, H. & S. A. RY. CO. v. WASHINGTON et al.

Supreme Court of Texas.

May 13, 1901.

Certified question from court of civil appeals of First supreme judicial district.

Action by George Washington, as next friend of James Washington, against the Galveston, Harrisburg & San Antonio Railway Company, for injuries. From a judgment in favor of plaintiff, defendant appealed to the court of civil appeals, where judgment was reversed (63 S. W. 538), and question certified to the supreme court. Judgment of court of civil appeals affirmed.

G. G. Kelley and A. L. Jackson, for appellant. J. C. Baldwin, J. V. Meek, W. L. Hall, and R. M. Brown, for appellees.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and question:

"This suit was instituted by George Washington, as next friend of the minor, James Washington, to recover of the defendant railway company damages for injuries to the person of said minor alleged to have been caused by the negligence of the defendant. The petition 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 the 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 ten 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 thirty miles per hour,—which speed was in violation of the city ordinance of the city of Houston prohibiting a speed in excess of six 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 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 ran 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 answered by general denial, and specially pleaded as follows: `And for further plea and answer in this behalf, if need be, the defendant avers that if it is true, as alleged by plaintiff, that said James Washington was injured while endeavoring to pass or cross over defendant's track, which is not admitted, but specially denied, nevertheless he is not entitled to recover herein, nor is George Washington, his father, as next friend, entitled to recover anything herein, for the reason that the injuries, if any, received by the said James Washington, were proximately caused or contributed to by his own negligent conduct in failing to use his senses and judgment to discover the approaching train, and avoid it, or in stepping upon defendant's track, or getting in a dangerous position, and placing himself near the cars, or in front of the approaching train of the defendant, well knowing of its approach, and at such times and under such circumstances as to bring about and contribute to the injuries, if any, received by him, and without which negligence on his part the said injuries would not have occurred. For further plea and answer in this behalf, if need be, the defendant avers, if the said James Washington received any injuries as alleged by plaintiff, nevertheless he is not entitled to recover therefor, because he proximately caused and contributed to the injuries received by him through his own misconduct and negligence, in this: That, while the cars of defendant were passing over its track, the said James Washington trespassed upon its track and roadbed, and 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 the said James Washington, in a reckless and negligent manner, took hold of some portion of one of defendant's cars, and got upon said car, or endeavored to get upon said car, and ride thereon; and that by reason of said reckless and heedless conduct, and by reason of the motion of said cars at the time, the said James Washington was thrown or fell under the edge of the car, so that his feet or legs were mashed and injured; and defendant avers that such conduct on the part of the said James Washington was not only grossly negligent and reckless, but that in getting upon, or attempting to get upon, the cars of defendant, the said James Washington violated the laws of this state, and was guilty of a misdemeanor, and that his conduct in this particular was a willful wrong; that, without such reckless negligence, the willful and unlawful conduct on the part of the said James Washington, the alleged injury would not have occurred.' On the trial of the case in the court below James Washington testified, in substance, that he was injured in the manner and under the circumstances alleged in the petition, and his statement as to how the accident occurred was corroborated by several other witnesses. There was evidence in the case to the effect that the boy was injured while attempting to get upon defendant's moving train. It was also shown that said James Washington made and signed a written statement of the circumstances under which he was injured, and had also testified by deposition previously taken in the case that the accident occurred in the manner set out in the written statement, which is as follows: `On the day I was injured, I was coming home from church, and walking up the railroad track, when I heard a train coming from Chaney Junction toward the Fifth Ward Depot. I stepped off the track, and stood beside the passing train. Just as the last box car was passing me, I stepped close to the train, and, as I did so, my foot struck against something in the street, and I fell, and my feet went under the box car, and it cut both my feet off.' The entire charge of the court is as follows: `Gentlemen of the jury, in this case, George Washington, as next friend for his minor son, James Washington, sues to...