Houston City St. Ry. Co. v. De Lesdernier
| Decision Date | 22 March 1892 |
| Parties | HOUSTON CITY ST. RY. CO. v. DE LESDERNIER. |
| Court | Texas Supreme Court |
Action for personal injuries by Mrs. E. J. de Lesdernier against the Houston City Street Railway Company. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.
Jones & Garnett, for appellant. Burke & Kirlicks, for appellee.
This suit was brought by the appellee, Mrs. de Lesdernier, against the appellant, the Houston City Street Railway Company, for damages for personal injury alleged to have been sustained by her by the negligence of the defendant in so constructing its track and permitting it to so get out of repair that the rails on Congress street "protruded and extended above the surface of the street to an unreasonable and dangerous height," much greater than the safety of persons using the same demanded; and alleging that while she was driving carefully along the street the wheels of her buggy came in contact with the elevated rails, overturning her buggy, and throwing her violently to the ground, producing injuries complained of. Besides general demurrer and denial, defendant answered, setting up that its track was laid under permission of the proper authorities, —of the mayor, alderman, and inhabitants of the city of Houston; that it was laid and has been maintained in all respects as required and directed by the city council and other proper officials of the city of Houston, and, if there is any fault or defect in the same, it is not the fault of the defendant, but of the city of Houston which has exclusive control and regulation of the street and of the laying of the track thereon. Defendant also set up contributory negligence in general terms. The trial resulted in a verdict and judgment for plaintiff for $500, from which defendant has appealed. The testimony for plaintiff is substantially that she was driving along the street in a dogcart, at moderate rate of speed, and, seeing some vehicles in the street ahead, to avoid a collision with them, she had to turn to the left towards the street-car track, and in crossing the same diagonally the right wheel of the dogcart struck the outer rail of the track, and she was thrown to the ground, and hurt as alleged. The vehicle was not turned over. It was in proof for plaintiff that the rails of the track were at the place of the accident about one fourth to three fourths of an inch above the level of the pavement,—high enough to catch the wheel of the cart,—and that it was this that caused the accident. The track was higher at that time than at the time of the trial. One Frost, a witness for plaintiff, testified that the accident would not have occurred if the track had not been defective. The testimony of the defendant tended to show that the track was not more than one fourth of an inch above the pavement, or about even with the street grade, as nearly as it could be; not enough to be dangerous with careful driving; that the rails put down were flat, as required by the city, and were put down under the directions of the city officials; that the grooves were cut with an adz into the cypress blocks of the pavement 1¼ or 1½ inches, as required by the city; that the work was done and supervised by the city, and was properly and skillfully done, with a view to the safety of persons and vehicles using the same, and was not dangerous. The city granted the right of way to the company to be so used as not to impede the streets or interfere with the use of the same by the public, stipulating "that all lines of road now owned or controlled and constructed, as well as those hereafter to be constructed by said company, should be put in thorough repair, and maintained in good order;" also "that the railways should be constructed of good and proper material, and should be equipped and maintained as first-class railways;" requiring that all roadbeds should be constructed and repaired to conform to the established grade of the streets, as fixed by the city engineer, under the direction of the city council; and that all work or repairs done upon defendant's lines that would in any manner affect the use of the streets by the public should be done to meet the approval of the city engineer, and should be altered by the company when notified by him to do so. It is made the duty of the city engineer, when repairs become necessary, to notify the company's officers, and, in case...
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