Klatt v. Houston Electric St. Ry. Co.
| Decision Date | 28 June 1900 |
| Citation | 57 S.W. 1112 |
| Parties | KLATT et al. v. HOUSTON ELECTRIC ST. RY. CO. |
| Court | Texas Court of Appeals |
Appeal from district court, Harris county; William H. Wilson, Judge.
Action by John Klatt against the Houston Electric Street-Railway Company for injuries sustained by him through defendant's negligence. Pending the suit plaintiff died, and his brothers, Gustave Klatt and Otto Klatt, and his sisters, Ottielie Kraeuter and Bertha Heitzig, joined by her husband, Paul Heitzig, were made plaintiffs. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.
Stewart, Stewart & Lockett, for appellants. Jones & Oliver, for appellee.
This was an action for damages for personal injuries instituted by John Klatt (now deceased) against the Houston Electric Street-Railway Company, appellee. Pending the suit the original plaintiff died, and his brothers, Gustave Klatt and Otto Klatt, and his sisters, Ottielie Kraeuter (a feme sole) and Bertha Heitzig, joined by her husband, Paul Heitzig, made themselves plaintiffs, and prayed to be permitted to prosecute the suit; alleging that John Klatt died intestate, leaving them as his sole heirs at law, and that no administration was pending on his estate, and that none was necessary. They also alleged that the death of John Klatt did not result from the injuries complained of. The petition alleged that John Klatt, deceased, was permanently injured by his team becoming frightened and running away with him, whereby he was thrown from his wagon; that the team became frightened by reason of the negligence of the company defendant. The acts of negligence alleged are that a street car of defendant was run in the direction opposite to its usual course, without any warning being given; that the car was so run at a rapid and dangerous rate of speed around a short curve in an unusual direction; that the car, in turning, protruded over the track, and appeared that it would run off the track and into the team of horses; that the gong was sounded excessively and unnecessarily, both before and after the team became frightened. A trial by jury resulted in a verdict and judgment for the defendant company, and the plaintiffs below, having appealed therefrom, insist that it should be reversed and remanded.
The facts are that deceased was driving a wagon on the streets of the city of Houston. His team was gentle, and would not ordinarily take fright at moving street cars. On the occasion in question the car approached a curve from an unusual direction. The rate of speed at which it approached was an issue in the case. The evidence was conflicting on the point, was properly submitted as an issue to be determined by the jury, and must be held to have been determined by them in favor of appellee. Whether the gong was negligently or unnecessarily rung, or whether the company's motorman in charge of the car was guilty of negligence in any of the respects complained of, were also issues presented by the evidence, and we are of opinion that there is evidence to support the finding that the motorman was without fault. That the dedeceased's team became frightened at the approaching car, and ran away, and seriously injured deceased, as alleged, is undisputed. On the allegation that deceased did not die of his injuries, but that his death was...
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...held by the courts that it is proper to give affirmatively the defense arising upon the testimony of the defendant (Klatt v. Houston Elec. Street Ry. Co., 57 S. W. 1112; Smith v. Whiteside, 39 S. W. 381; Western Union Tel. Co. v. Andrews, 78 Tex. 305, 14 S. W. 641; Railway Co. v. Renfro, 83......
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