Houston City St. Ry. Co. v. Farrell

• Citation: 27 S.W. 942
• Parties: HOUSTON CITY ST. RY. CO. v. FARRELL.
• Decision Date: 04 October 1894
• Court: Court of Appeals of Texas

27 S.W. 942

HOUSTON CITY ST. RY. CO. v. FARRELL.

Court of Civil Appeals of Texas.

October 4, 1894.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by R. P. Farrell against the Houston City Street-Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Jones & Garnett, for appellant. Burke, Kirlicks & Griggs and Stewart, Stewart & Lockett, for appellee.

WILLIAMS, J.

The wife of appellee was run over and killed by an electric car of appellant at the crossing of Caroline and Preston streets, in the city of Houston, and for the damages resulting to appellee from her death he recovered the judgment from which this appeal is taken. The issues involved were the usual ones of negligence on the part of the servants of appellant, and of contributory negligence on the part of deceased. The court below gave no instructions except such as were requested by the parties. Among those given at the request of appellee were the following, the giving of which is claimed by the appellant to have been error for which the judgment should be reversed: "If the jury believe from the evidence that wife of plaintiff was injured and killed as he alleges, and that just before and at the time of the injury she was on the defendant's railroad track, on a public street, in the city of Houston, and that she did not see or know of the approach of the car that injured her, and if you further believe from the evidence that the servants and agents of the defendant were in charge of and running said car on said track, and, by the use of ordinary and reasonable care and prudence, could have seen the wife of plaintiff, and prevented such injury, then if they failed to use such care and prudence, and by reason thereof the wife of plaintiff was injured and killed, he is entitled to recover such damages as you may be satisfied from the evidence he has sustained." "The jury is charged, upon the issue of contributory negligence, that even if the plaintiff's wife were not exercising due care to prevent the injuries herein complained in plaintiff's petition, and she received such as therein complained of, and if you also believe that the defendant, its agents, servants, or employés, or any of them, saw, or by reasonable diligence might have seen, the danger in which deceased was placed, and, seeing such danger, had, or by due care might have had, the power to and might have avoided the accident and the injury, and yet failed to prevent, or to take the necessary precautions to prevent, such accident and injury, the defense of contributory negligence cannot avail the defendant; and if you believe from the evidence that the defendant, its servants or employés, or any of them, did so see the danger of deceased, and...