Mexican Cent. Ry. Co. v. Rodriguez

• Decision Date: 04 January 1911
• Citation: 133 S.W. 690
• Court: Texas Court of Appeals
• Parties: MEXICAN CENT. RY. CO. et al. v. RODRIGUEZ.<SMALL><SUP>†</SUP></SMALL>

133 S.W. 690

MEXICAN CENT. RY. CO. et al. v. RODRIGUEZ.^†

Court of Civil Appeals of Texas.

January 4, 1911.

Rehearing Denied January 25, 1911.

Appeal from District Court, El Paso County; James R. Harper, Judge.

Action by Paula Rodriguez, as next friend of Miguel Lira, against the Mexican Central Railway Company and another. From a judgment for plaintiff, the defendant named appeals. Affirmed.

Waters Davis and J. M. Goggin, for appellant. Patterson & Wallace, for appellee.

JAMES, C. J.

This action was brought by Miguel Lira, by next friend, his mother, for damages for personal injuries sustained by him on account of alleged negligence of defendants, the Mexican Central Railway Company, Limited, and the Ferrocarriles Nacionales de Mexico. It was pleaded that Miguel was walking along defendant's track, on a public street in El Paso, when defendant's train was backed upon him and he was injured, that defendants were negligent in operating the train at a high rate of speed without ringing the bell, or blowing the whistle and without having a lookout on the end of the train, by reason of which the injury occurred. Defendants pleaded general denial, and contended that plaintiff was not struck by the front end of the train, but was attempting to ride on the train, and fell beneath the fourth car from the engine, after the head end of the train had passed; the train being composed of 50 cars and more than a third of a mile in length. There was a verdict for plaintiff for $9,000.

We conclude from the testimony that there was evidence to warrant finding that Miguel Lira, a boy five years of age, was injured upon a public street and thoroughfare by defendants' train, along which it ran, and which train was being backed into El Paso from Mexico; that he was struck and run over by the end car which was being pushed forward; that his injury was due to negligence of defendant, without contributory negligence on the part of the boy. These conclusions with reference to the testimony dispose of the first assignment of error.

The second assignment is that there was error in permitting plaintiff's witness Norris to testify: "I saw something that looked like it was falling right on the track, like it had been hit. I did not know what it was. I could not tell. At the time I saw it, it looked like it all occurred at once. He was hit by part of the train undoubtedly, but I could not see what it was. It was some part of it." This was objected to and asked to be stricken out as an opinion and conclusion of the witness, which objection the court overruled. In connection with this complaint, appellant presents the following testimony of the witness drawn out upon cross-examination: "Question: Suppose that the boy had been stealing a ride on the car and fell off just at the bridge, tried to get off at the bridge and fell off instead of being hit by the car, you could not tell whether he fell off or was actually struck? Ans. I could not tell. I can say this much, he was not in the place to fall off or hang on, but was hit, I think, by the front end of the car at the time I saw him fall. Question: That is what we are objecting to, what you think. We want to know just what you saw. You could not see from that distance whether he was struck by anything, or whether he fell from some other cause. You will not undertake to swear that you saw anything bump up against that boy from that distance would you? Ans. No, sir; I would not, so far as that is concerned." The objection was renewed, and the court overruled it. Appellant's proposition is "that nonexpert witnesses upon matters of ordinary understanding must state facts, and not conclusions." The witness stated that he did not know at the time he saw the occurrence that it was a boy, but he saw something fall, and afterwards went over there, and the boy was lying there. The substance of what the witness related was what he saw and as he saw it. He was stating a fact, and not an opinion or conclusion. The assignment is overruled.

The third assignment is that the court erred in permitting the same witness to testify upon cross-examination in answer to the following question: "Were they (the people attracted by the accident) not running after Mr. Thomas looked up, and didn't he look up immediately? Yes, sir; he looked up and made a remark and says: "There's nobody on the front end of that train.' He says, `I ought to arrest them right now.' He said that when he looked up." Appellant objected on the ground that the answer in so far as it gave what Thomas said was not responsive, and was improper and hearsay and asked that the same be excluded, which the court refused to do. It appears that the court charged the jury to not consider for any purpose that part of the testimony of Norris wherein he testified that Thomas stated that he ought to arrest the entire crew of the train in question. This conformed to defendant's request that far. It appears also that Roberts was a witness, and upon cross-examination by defendant he testified without any objection or motion to strike out that he stated on the occasion that he ought to pinch the whole bunch for backing that train over here without anybody on the back of it. This assignment, and also the fourth, are therefore overruled.

The fifth is that the court erred in charging that "a child of such tender years is not held to the same degree of accountability as an adult man," because this was upon the weight of evidence, argumentative, and took from the jury the right to determine the degree of accountability to which Miguel Lira should have been held, and that the jury should have been told only that it was for them to determine the degree of accountability, considering the boy's age and intelligence, and that the measure was what a child of reasonable care and prudence of the same age, intelligence, and experience would or would not have done under like circumstances, and that, if the court undertook to measure the capacity of Miguel by that of an adult man, it should have submitted the qualification in the standard that such adult man was one of ordinary care and prudence. It is suggested that the charge was more favorable to defendant than was proper. The boy was five years of age, and we doubt that in any case a child of that age can be charged with contributory negligence (see Railway v. Nesbit, 43 Tex. Civ. App. 630, 97 S. W. 827), and certainly not unless there is testimony of such intelligence and realization of danger as would indicate that the child was conscious of the consequences of its conduct. See Freeman v. Garcia, 121 S. W. 887, and cases cited. However, the complaint is of an instruction which has met the approval of the Supreme Court. Railway v. Ball, 38 Tex. Civ. App. 279, 85 S. W. 458. The instruction of the court was the same as that complained of in the last-mentioned case.

The sixth complains of the fifth paragraph of the charge, an introductory portion of the main charge, wherein, in speaking of the duties of defendant, it stated, among other things, that it was the duty of the railway company operating its engines and cars in a city to exercise ordinary care to...