Houston City St. Ry. Co. v. Dillon

• Decision Date: 25 May 1893
• Citation: 22 S.W. 1066
• Parties: HOUSTON CITY ST. RY. CO. v. DILLON et al.
• Court: Texas Court of Appeals

22 S.W. 1066

HOUSTON CITY ST. RY. CO. v. DILLON et al.

Court of Civil Appeals of Texas.

May 25, 1893.

Appeal from district court, Harris county; James Masterson, Judge.

Action by L. T. and Emma Dillon against the Houston City Street-Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jones & Garnett, for appellant. O. T. Holt, for appellees.

WILLIAMS, J.

This is an appeal from a judgment for $2,000, in favor of appellees, as damages resulting to them from the death of their infant daughter, Ethel Dillon, who was run over and killed by one of the horse cars belonging to appellant, in the city of Houston. The only question raised upon the appeal is whether or not appellees, in allowing the child to be upon the track upon which the car was passing when she was killed, were guilty of contributory negligence, which precludes them from recovering. The facts, as the jury must have found them, and as we conclude them to be, are these: Appellees lived in a house at the intersection of two streets in Houston, upon each of which there was a street-car track, over which horse cars were constantly passing. Doors opened from the rooms of the house upon galleries which extended to each of the streets, constituting the sidewalks. Deceased was a child two years and a half old, and was generally under the care of her mother, a nurse, who had been discharged on the day previous to the death of the child, and a sister, who was between eight and nine years of age. The mother kept a boarding house, and the father worked in the city at night, and would sleep during the day, but took such care of the child as was practicable under these circumstances. There was testimony to the effect that the child had been frequently seen upon the tracks previous to the accident, and had often been removed by a driver of one of the cars. The parents were never notified of this fact. There is other evidence that when she crossed the track she was generally attended by her elder sister. The testimony of the mother was that she knew it was dangerous for the child to play upon the streets, and did not permit it, but exercised constant care to prevent it, and that she did not know of this child having done so; and it is shown by other evidence that she forbade her children to go upon the streets, and had whipped them for doing so. The nurse who thus testified stated that the deceased would sometimes escape without the mother's knowledge, and that it was impossible always to prevent it. The mother had housework to do, and the wants of her boarders to supply, and except the means realized in this way, and by the husband's labor, they had none, and were unable to employ other help than that which she had engaged. The child was killed about 6 o'clock in the evening of May 25, 1891. Mrs. Dillon was in her dining room, the doors of which opened upon the two streets, preparing the table for some of her boarders who had not had their suppers, others having eaten and gone out....