Houston Electric Co. v. Pearce

• Decision Date: 18 January 1917
• Docket Number: (No. 7275.)
• Citation: 192 S.W. 558
• Parties: HOUSTON ELECTRIC CO. v. PEARCE.
• Court: Texas Court of Appeals

192 S.W. 558

HOUSTON ELECTRIC CO. v. PEARCE.

(No. 7275.)

Court of Civil Appeals of Texas. Galveston.

January 18, 1917.

Rehearing Denied February 8, 1917.

Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.

Action by Eula M. Pearce against the Houston Electric Company. Judgment for plaintiff. Defendant's motion for a new trial denied, and it appeals. Affirmed.

C. R. Wharton and R. C. Patterson, both of Houston, for appellant. Guynes & Colgin, of Houston, for appellee.

PLEASANTS, C. J.

This is a suit to recover damages for personal injuries, brought by the appellee against the appellant.

The petition alleges, in substance, that plaintiff was injured by being struck by a brake handle on one of defendant's street cars in the city of Houston on which she was a passenger and from which she was proceeding to alight at the time she received said injury; that the brake by which she was injured was what is known as a goose-neck brake, and was deficient, worn-out, and obsolete, and not the safe kind of brake that was used by the defendant and other street car companies; "but on the contrary, was an obsolete brake, completely or partially worn-out, which would not stay or remain fastened when set, and which had an unnecessarily long and dangerous handle, liable to injure passengers passing within its reach in making their exit, and it would become loose and fly around with great force and violence, which it had often done theretofore, and which had often failed to perform its functions and services prior to said accident, all of which was well known to said defendant, or could have been known by the exercise of reasonable diligence. Plaintiff further alleges that said brake was deficient and dangerous in other respects unknown to her, and for which reason she is unable to set same out with particularity or otherwise"; that the defendant well knew that the brake was defective, obsolete, and dangerous, and not the safest that had been used and tried by it as well as other street railway companies; and that the defendant was guilty of negligence in using this dangerous brake, and in permitting the passengers to make their exit near it.

By way of alternative pleading, the plaintiff avers that the motorman was guilty of negligence in stopping the car on a considerable grade, and setting the brake so as to permit it to swing loose with great force, and negligently failed to take the proper precaution in setting the brake.

The defendant answered, denying that the brake equipment was old, obsolete, or defective, and alleging that its machinery and appliances, including the brake, were in good condition; that they had been carefully installed and carefully inspected; and that the accident of which the plaintiff complains was not due to any negligence on its part, but rather was an unfortunate and unavoidable accident.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $12,000.

The evidence shows that plaintiff, as alleged in her petition, was injured by being struck by a brake handle on one of defendant's cars upon which she was a passenger and from which she was making her exit at the time of her injury. The brake had just been set by the motorman, and as plaintiff passed it, as she had to do to get off the car at the end from which she made her exit, it came loose and the handle flew around and struck plaintiff on her back and side. A gooseneck brake, which was the kind by which plaintiff was injured, is operated by an upright windlass with a crooked or gooseneck handle on the top and with which the windlass is turned. A chain connects the windlass with the brake proper, and the brake is set, that is, applied to the wheels of the car, by turning the windlass which winds the chain and pulls the brake against the wheels. When the brake is wound up if the handle is released the weight of the brake pulling on the chain will cause the windlass to revolve and the handle flies around with it. To prevent this a small wedge-shaped piece of iron called a "dog" is fastened to the floor of the car on a pivot near the bottom end of the windlass which has cogs attached to it. When the brake is wound up if the operator pushes the "dog" into one of the cogs on the bottom of the windlass the handle can be released and there will be no movement of the windlass. If neither the cog nor the dog is worn or defective and the dog is properly placed in the cog before the handle of the windlass is released the windlass cannot revolve, and there can be no movement of the handle unless the cog or the dog should break. If the dog is properly placed in the cog the brake could only be released by a very hard blow, unless the pressure was released by using the brake handle.

The motorman who set the brake in question testified:

"I brought the car to a full stop by winding up my brake. Before this accident I had no trouble with the car. I do not know how long that particular brake that was on the car at the time of the accident had been on it; it had been on there all the time I run the car. They had not changed brakes on the car while I was running it. During the time I run the car I did not have any trouble with the brakes; they were in good condition. The brake equipment on this car was in good condition before the accident. I had no trouble with it. I stopped the car and opened the exit door and wound up my brake. I opened the door after the car was standing still. When I wound up the brake I opened the exit door, then I wound it up tighter to turn up my register. I wound it up and turned the register, and then walked back and turned my back toward the exit door, and then I looked around, and just then the brake got loose. When I got through winding up the brake and turned around to go to the register I thought the dog was in. I turned the brake handle loose, and the dog semed to hold because I took my hand off the handle. When I took my hand off the brake did not fly against my hand or against me; it was standing still. When I went in to turn the register I had not gotten to the register when it flew loose. I had not gotten very far away from the brake when it flew around. I do not know what caused the dog to come out of the ratchet; it had never come out before. I run that car after that accident, but it never came loose on me after that. I did not say to the conductor after the accident that I had reported the brake several times."

Plaintiff introduced a witness who testified that on the day after the plaintiff was injured witness rode on this car with the motorman who set the brake by which plaintiff was injured, and the motorman showed witness how the brake was worn; that he saw the motorman use the brake to stop the car four or five times; and that he kept his foot against the "dog" while the brake was set.

Plaintiff testified that just after the brake struck her the conductor asked the motorman how it happened, and why he did not tell him of the trouble, and the motorman replied that "the brake flew loose and hit her in the back," and that he "had reported it to the company two or three times before that."

She further testified:

"I did not touch the brake myself in any way when I started to pass out."

E. L. Baker, witness for plaintiff, testified in part:

"If the brake was set up by the motorman, for say a minute, it would not come loose only on a grade and the brake was worn, that is, if both the ratchet and the brake — the ratchet and the dog was worn, unless the pin gave way, and then of course the ratchet would turn round. * * * I spoke about the dog being worn there. As I use that dog by kicking it in and out of place, it may wear sharper on the point."

I. D. Rainey, witness for plaintiff, testified in part:

"I think it is possible to set this brake on the edge of these cogs so that a jar would bring it loose. If the car was standing on a slant or any other position, and it was shaken by people coming off the car, in my opinion, if the brake wasn't properly set, it would not only be possible, but it would be probable, that the brake would come loose, and more so, if these ratchets here were worn and the dog was worn, and the brake wasn't properly set."

The court instructed the jury that there was no evidence to sustain the allegations that the brake was obsolete, and they should disregard all such allegations in the petition. The portion of the charge submitting the issue of negligence to the jury is as follows:

"You will inquire from the evidence if these allegations are true, and in this connection you are charged that the defendant,...