Northern Texas Traction Co. v. Thetford

• Decision Date: 06 January 1932
• Docket Number: No. 1501-5787.,1501-5787.
• Citation: 44 S.W.2d 902
• Parties: NORTHERN TEXAS TRACTION CO. v. THETFORD et al.
• Court: Texas Supreme Court

44 S.W.2d 902

NORTHERN TEXAS TRACTION CO. v. THETFORD et al.

No. 1501-5787.

Commission of Appeals of Texas, Section B.

January 6, 1932.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by B. Thetford and wife, for themselves and as next friends of Fred Thetford, a minor, against the Northern Texas Traction Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [28 S.W.(2d) 906], and defendant brings error.

Affirmed in part, and reversed in part and remanded.

Cantey, Hanger & McMahon, W. D. Smith, and Warren Scarborough, all of Fort Worth, and E. A. McCord, of Peoria, Ill., for plaintiff in error.

Houtchens & Houtchens and J. H. Craik, all of Fort Worth, for defendants in error.

HARVEY, P. J.

This suit was brought against the Northern Texas Traction Company by B. Thetford and wife, for themselves, and as next friends of their minor son, Fred Thetford, to recover damages on account of personal injuries alleged to have been suffered by the latter as a result of negligence of the traction company. The case was tried before a jury, on special issues, resulting in a judgment in favor of the traction company against B. Thetford and wife, and in favor of Fred Thetford against the company for $7,500 damages. That judgment has been affirmed by the Court of Civil Appeals. 28 S.W.(2d) 906.

The facts, so far as necessary to be stated here, are substantially as follows:

Fred Thetford, a child nine years of age, was injured by a street car of the traction company coming into collision with an automobile driven by Mrs. Thetford along Hemphill street in Fort Worth. The Thetfords, on the day of the accident, were moving their place of residence from one part of the city to another part of the city. Most of their household effects had been sent to the new home by truck, but a considerable amount thereof had been loaded into the automobile which Mrs. Thetford was driving at the time of the collision. The automobile was traveling south on Hemphill street. Mr. and Mrs. Thetford and their daughter were riding inside the automobile, and Fred, on account of the crowded condition inside the automobile, was standing on the left running board of the automobile. As the automobile approached the scene of the accident, Mrs. Thetford saw the street car coming north on Hemphill street. It was on a side track which ran alongside and east of the main track. Along the west curb of the street, in the vicinity of the switch point, where the side track rejoins the main track, some automobiles were parked in such a position as to leave but a narrow space between the parked automobiles and the main line track. Seeing the street car approaching, Mrs. Thetford speeded up the automobile she was driving, in an attempt to pass around the parked automobiles, in advance of the street car. In doing so, the left wheels of her automobile ran along between the rails of the main line street car track. Just about the time she reached the switch point, she had cleared the parked automobiles. She then swerved her automobile to the right in order to give clearance to the oncoming street car. At this juncture the street car reached the switch point, and ran against the Thetford automobile. The left front corner of the street car struck the Thetford automobile, near the rear end of the running board. Fred was knocked to the ground, and sustained the injuries of which he complains. None of the other occupants of the automobile were hurt. Among other things, the jury found, in effect, that the collision was brought about by the concurring negligence of the traction company and Mrs. Thetford; and that Fred was not guilty of negligence in riding on the running board as he did.

That Fred, notwithstanding his immature age, was fully capable of appreciating the dangers incident to his riding on the running board finds strong support in the evidence. The trial court, over the objection of the plaintiff in error, instructed the jury as follows: "Negligence is the failure to use ordinary care and negligence of a child is to be measured by the standard of care which an ordinarily prudent child of similar age would exercise. Ordinary care is that care which a person of ordinary prudence would exercise under the same or similar circumstances, and, as to a child, is such care which a child of ordinary...