Gehring v. Galveston Electric Co.

• Decision Date: 17 January 1911
• Citation: 134 S.W. 288
• Parties: GEHRING et al. v. GALVESTON ELECTRIC CO.
• Court: Texas Court of Appeals

134 S.W. 288

GEHRING et al. v. GALVESTON ELECTRIC CO.

Court of Civil Appeals of Texas.

January 17, 1911.

On Motion for Rehearing, February 9, 1911.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by Augusta Gehring and others against the Galveston Electric Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Hogg, Gill & Jones and James B. & Charles J. Stubbs, for appellants. Terry, Cavin & Mills, for appellee.

McMEANS, J.

The appellants Augusta Gehring and her daughter, Elsie Gehring, brought this suit against the Galveston Electric Company, a corporation, operating a street railway in the city of Galveston, to recover damages for the death of C. C. Gehring, the husband of Augusta, and the father of Elsie; it being alleged that his death was due to the negligence of the operatives of a street car of appellee, as a result of which the car collided with C. C. Gehring and killed him. The grounds of negligence averred, first, a failure to keep a reasonable lookout and sound warnings on the approach of the car; and, second, that the motorman discovered deceased and his peril in ample time to have stopped the car, or so reduced its speed, by the use of the means at hand, as to have prevented the injury. The defenses urged were, in substance, a general denial and contributory negligence. There was a verdict and judgment for defendant, and from an order overruling a motion for new trial the plaintiffs have appealed.

It appears to be conceded that the accident happened on Market street, which runs east and west, at a point between the intersections of this street and Thirty-Second and Thirty-Third streets, which run north and south, and that there were two street car tracks, in Market street, the north one being used exclusively by west-bound cars and the south one by east-bound cars, and that the car that collided with deceased was a west-bound car.

The evidence in the record tending to raise the issue of discovered peril is substantially as follows:

F. Hamilton testified: "While the car was standing there (at the fire engine house at the corner of Twenty-Ninth and Market, more than two blocks from the place where the accident happened), I was sitting on the left-hand side of the car, about three windows from the front end, and was looking out of the window, and saw the old gentleman (deceased) walking in the direction the car was going on Market street about a block and a half from the car, down between the curbing and the first car track. Soon after the car started, he stepped over between the two car tracks, and continued to walk as before. The car was started at full speed in order to make up the time they had lost in the firehouse, and when the car passed Thirty-First street, without making any check in speed, or giving any warning of any kind, I saw it was going to strike the old man who was walking between the tracks, and, when it was 25 or 30 feet from him, I hollowed at him, but it was too late for him to get out of the way. The car was going so very fast, and in an instant the car struck him and knocked him over on the left-hand side of the track, being the same side I was sitting on in the car. When the car struck the man, it was about a quarter of a block between Thirty-Second and Thirty-Third streets. After he (deceased) had walked about a quarter of the way between Thirty-First and Thirty-Second streets, he stepped over between the two car tracks, and continued walking that way until the car struck him. He was walking right in between the two car tracks, and the space between the tracks is about four feet. The car was still standing at the firehouse when I first saw the man, and, when the car started, he was still walking between the sidewalk and the first track, and, after the car had gone a short distance, he stepped over between the two car tracks, and, as I have stated, continued to walk westward until the car struck him. He was about a block and a half from the car when I first saw him, and he was in plain view all the time until the car struck him and passed him. He did not turn his head, or do anything to indicate that he was conscious of the approach of the car. No attempt was made by either the motorman or the conductor to stop the car or check the speed until after the accident. From the time the car started from the firehouse, it went at full speed, and it did not slow up or check its speed until after the accident, and there was no effort made to stop the car or check its speed until after the accident. He (deceased) was about a block from the car when he stepped over between the two tracks."

William Gauslin testified: "I was present when the car hit Charles C. Gehring which caused his death. I was present when the accident took place. I was sitting in a street car when said accident happened. I saw Charles C. Gehring just prior to, and got to him immediately after, the accident. The car lost several minutes there (at the firehouse), and on starting it continued west at an unusual speed, and on Market, near Thirty-Third street, it hit an old gentleman whom I did not recognize until the car was stopped and I got to him. Before the car was stopped, I stood up and asked the conductor if he was not going to stop the car telling him that he had struck an old man and had seriously injured him. The car went about 150 feet after it struck Gehring. I got up and told the conductor to stop the car; that he had struck an old gentleman. He did so, and I got out of the street car and went to the old gentleman. I told the conductor to stop the car that he had hit an old gentleman. He immediately stopped the car when I told him. It never stopped from the time it left Thirtieth and Market street until it hit the old gentleman. It kept the same speed all the way, which was very fast. Immediately before the accident, the deceased was walking west. He was walking west with his back towards the car. I did not see the deceased immediately when the car struck him. I saw him afterwards."

The witness, A. Bellar, testified: "I saw the man who was injured just before the accident occurred. The motorman was sounding his gong, and that attracted my attention to the man who was injured, who I learned after was Charles C. Gehring. When I first saw him, he was about 25 or 30 feet from the car. When the car was about 10 feet from him, he suddenly turned sideways, and just as the car was passing him he was against its side. I judge he struck the car just south of the iron gate." He further testified: "I did not at any time see that he was in danger of being injured before he was actually injured. He was in no danger at all, and could not have been hurt had he not turned into the side of the car."

The witness Altenberger testified that the deceased when he first saw him was walking in the path between the two car tracks, going west and the car coming up behind him, and was within 10 feet of him; that the deceased must have turned half around, when the car struck him on the right shoulder and knocked him down; that after he fell the car ran about two car lengths, he judged, from where it struck him; that he did not think the motorman put his hand on the brake until the conductor signaled him to stop.

It appears that the motorman sounded the gong for some distance before the collision —the motorman says he sounded it continuously —but...