Houston City St. Ry. Co. v. Sciacca

• Decision Date: 24 March 1891
• Citation: 16 S.W. 31
• Court: Texas Supreme Court
• Parties: HOUSTON CITY ST. RY. CO. v. SCIACCA <I>et ux.</I>

16 S.W. 31

HOUSTON CITY ST. RY. CO. v. SCIACCA et ux.

Supreme Court of Texas.

March 24, 1891.

Commissioners' decision. Appeal from district court, Harris county.

Jones & Garnett, for appellant. Frank S. Burke, John A. Kirlicks, and Henry F. Fisher, for appellees.

COLLARD, J.

The suit was brought by Giaccomo Sciacca and wife against the Houston City Street-Railway Company for damages for the killing of their infant son, aged 18 months, by the negligence of defendant's driver in running a car over the child, causing its death. Plaintiffs recovered $2,000 damages, and defendant has appealed. Plaintiffs lived in Houston on San Philippe street, and had a store there. The mother of the child says she put the child down to wait on a customer, her husband having gone down town to pay some bills, and in five minutes she turned around to look for it, and she saw the car-driver picking up the child from between the wheels of the car. She never permitted the child to go out except in charge of herself or husband. It was in proof that the child's head was burst open, or badly wounded, and that it died immediately. Lula Greer testified that she had been to a store in the neighborhood to get some charcoal, and was returning, when she heard some one halloo, "Stop that car!" She saw the mule run off the track, saw the car knock the child down and run over it. The car was going out Dallas street, in the direction of the cemetery, and she was coming in an opposite direction. Her attention was called by some one hallooing: "Stop the car!" The car was in front of her. She looked up at it at the time. The mule shied, and ran off the track. She was about a half a block away when she heard the cry to stop the car, and when she looked up the driver was not on the platform of the car, and she did not see him until he ran out and turned the brake on the car. She says he ran out after the car struck the child. She was on the same side of the car on which the child was struck. The driver was proved to be a competent and careful servant. It was in proof by William Ford, who, with his father, was walking 25 or 30 yards behind the car, and saw the car run over the child: "At least," he says, "the child ran out to catch the car, as it looked to me where I was, and missed the car, and fell under the wheels. The hind wheel ran over it, and the gentleman who was driving the car got out to pick it up, and he picked it up, and laid it on the side-walk. * * * When the car got opposite to the child, who was standing in the street, it ran to catch the car, missed, and fell between the wheels. We did not see the driver at the time. The driver slipped out immediately after the child was struck, and the car had hardly ran over it before he stopped it, and picked the child up." The car, he says, ran over its head, and cut its head wide open. He (the driver) picked up the child, and laid it on the sidewalk where its mother keeps a store. The mother was sitting outside the store, with her back towards the street-car. The child, witness says, was always playing in the street. The driver testified, acquitting himself of all blame, that the child was about two feet from the car when he first saw it, when he tried to stop. Thought it struck the hind wheel, as it was lying by the hind wheel when he picked it up. He did not think it was hurt much when he picked it up, but he saw the child close its eyes as he had him in his arms. He turned him over, and then he saw the blood spurting out. He took him to his mother. He said if the dust had not been blowing perhaps he might have seen the child in time. He also said the mother was sitting with her back to the car. He says he was on the platform of the car driving very slow. When he picked up the child he did not see anybody about there. He testified to many facts tending to show that he was guilty of no negligence. There was much more evidence on both sides, but we have recited enough of it to explain the errors assigned.

The first assignment of error is: "The court erred in excluding, on plaintiff's objection, the evidence offered by the defendant from the witnesses John Holland and H. F. MacGregor, to prove that the injury to the child's head from which it died [damages for whose death are sued for by the plaintiffs herein] was not such an injury as would have been caused to said child if its head had been run over by defendant's car; and that if defendant's car had run over the child's head, as stated by plaintiffs' witnesses Lula Greer, Anna Walker, and Anderson Jones the child's head would have been crushed on both sides; said evidence, so sought by defendant from said Holland and MacGregor, being offered by defendant to contradict plaintiffs' witnesses, and to corroborate the evidence of defendant's witnesses William Reddy and William Ford, — all of which appears by defendant's bill of exceptions Nos. 3 and 4, which are referred to, and made a part of this assignment of error." MacGregor had testified that he had examined the wound on the child's head, describing it. He said: "It had a cut on the side of its head. It was bent in. There was a broad crush in its head. Thought the skin was broken so that the blood ran out, but it was not cut like a knife would cut it; it was a crush." The proposed answer of the witness was excluded by the court, as stated in the assignment of error, because the witness had not qualified as an expert, and it was proposed only to show his opinion. The witness Holland had testified without objection that the skull was bruised, and looked like it had been crushed in. "To the best of my recollection, it was on the left side of the head; it was injured along the forehead. You could see that the bones were crushed in three-quarters of an inch. It was not bloody from the injury to any great extent. Very little blood that I could see. The injury was on the forehead. Skin broken some, the same as if a blow had cut it, but the skin was not broken on the back of the head." Then it was that defendant's counsel asked the question and proposed the answer objected to, and the same objection was made and sustained as in the case of the witness MacGregor....