El Paso Electric Ry. Co. v. Shaklee

• Citation: 138 S.W. 188
• Parties: EL PASO ELECTRIC RY. CO. v. SHAKLEE.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 03 May 1911
• Court: Court of Appeals of Texas

138 S.W. 188

EL PASO ELECTRIC RY. CO. v. SHAKLEE.^†

Court of Civil Appeals of Texas. San Antonio.

May 3, 1911.

Rehearing Denied June 7, 1911.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by J. R. Shaklee against the El Paso Electric Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leigh Clark, Nagle & Scott, and Baker, Botts, Parker & Garwood, for appellant. S. Engelking, for appellee.

FLY, J.

This is a suit for damages alleged to have accrued to appellee from personal injuries sustained by him through the negligence of appellant. A trial by jury resulted in a verdict and judgment in favor of appellee for $12,500. All the facts necessary to a full understanding of the case have been found and discussed in connection with the different assignments of error.

The first assignment of error complains of the admission in evidence of this rule, made and promulgated by appellant as to the handling of its cars: "The company's emergency wagon must at all times be given the right of way the same as apparatus of the fire and police departments." It was objected to because irrelevant and immaterial in that the rule purports to be for the government of those operating the cars, because appellee was not furnished with a copy of the rule or knew of its existence, and because the rule applies to emergency wagons in motion, and because the rule was not pleaded until set up in a trial amendment. It was alleged in the original petition that appellee was in the employment of appellant in the work of repairing electric wires by means of a tower wagon, that the wagon had been placed upon the street railway track in order that appellee might perform his usual and necessary work in repairing an electric wire, and that he was standing on the top of the wagon, and while so engaged an electric car belonging to appellant, without giving warning of its approach, negligently, willfully and recklessly ran with great violence and speed against the tower wagon and upset it and threw appellee to the ground, a distance of more than 17 feet, and inflicted serious and permanent injuries upon him. There was evidence to the effect that appellee knew of the rule, and relied upon its being obeyed by those for whose government it was promulgated. Of course it did not apply to any except motormen and conductors, because they were the only ones who could run cars over or into emergency wagons, but it cannot be urged, with any reason, that, because it only applied to motormen and conductors, the employé on the emergency wagon could place no reliance on its being observed. Appellee knew of the existence of the rule, knew that it was observed by motormen and conductors, and had never known it to be violated before, and he was justified in relying upon its observance. There was evidence that showed that it applied to a car standing still as well as one moving, and in fact no other reasonable construction can be placed upon it. The motormen and conductors so construed it and acted upon it. We cannot conceive that a street car company would command its employés to give the right of way to apparatus of the fire and police departments and emergency wagons when they were crossing the track, but owed no duty to them, under the rule, when for any reason they halted on the track. If there was ever a time that an employé needed protection from cars it would be when he was on the top of an 18-foot tower wagon engaged in repairing an electric wire. The rules are addressed to all employés concerned, and whether appellee was concerned in them or not he knew of the existence of the rule in question, he knew that it had been uniformly obeyed before when emergency wagons were on the track, and he had the right to rely on its being observed on the occasion in question. If it was necessary to plead the rule in order to introduce it in evidence in rebuttal of the charge of contributory negligence made against appellee, which we do not deem it necessary to hold, the action of the court in permitting appellee to file a trial amendment in which the rule was pleaded, has not been made the subject of an assignment of error in this court, and the correctness of the ruling will not be inquired into.

We believe, as hereinbefore indicated, that the rule was directly applicable to a tower or emergency wagon standing on the tract for the purpose of permitting an employé to perform the duty of repairing wires, and therefore the court did not err in refusing to withdraw the rule from consideration by the jury. Witnesses testified that under such circumstances the rule was always observed before the time in question. This view of the matter disposes of the second assignment of error. It would be preposterous to hold that the persons sought to be protected by the rule could not rely upon its enforcement and observance because it was not directed to them, but to those who were to observe the rules.

The court wisely and judiciously refused to charge the jury to exonerate appellant if the sun was shining in the face of the motorman in charge of the car so that he did not discover the emergency wagon upon the track, and could not have discovered it by ordinary care, in time to have prevented the collision. That was no defense to the action. If license could be given to motormen to run over an object 18 feet high and of other dimensions to correspond therewith, because the sun was shining in their faces, it would license the operation of an engine of destruction that would be a terror to the inhabitants of a city. If the sun was shining so as to render it impossible to see an object 18 feet high with a man on top of it, and a horse attached to it, the exercise of ordinary care and prudence and a just regard for the public safety would demand that no cars be run through the streets while the sun was robbing the employés of their powers of vision. If the sunshine being in the face of the motorman could justify a street railway in running a car over a wagon, man, and horse, men, women, and children could be crushed to death with impunity on the streets of any city. Better far that cars should not be permitted to move in a westerly direction in El Paso in the late afternoon than to give license to a pursuit that is a menace to life and property. The ordinary glint or glare of afternoon sunbeams cannot be pleaded and proved as an act of God that will exonerate a street railway company for its negligence in running into a wagon and injuring a human being thereon on the open streets of a city. Of course no authority is offered in support of such a proposition as is embodied in the third assignment of error.

The fourth, fifth, sixth, seventh, and eighth assignments of error complain of the charge of the court on contributory negligence, which instructed the jury that a verdict should be rendered in favor of appellant if appellee was guilty of contributory negligence, as well as the rejection of charges on comparative negligence, the ground of complaint being that the charge should have been that the damages should be reduced in proportion to the amount of negligence attributable to appellee, as provided in General Laws of 1909 (1st Ex. Sess.) pp. 279-281. That act provides that contributory negligence on the part of an employé of any corporation, receiver, or other person operating any railroad in this state shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Evidently that enactment was made in the interest of the negligent employé, and no one but such employé could have any ground for objection to a charge which in case of contributory negligence would prevent a recovery of any amount. If appellant is operating a railroad within the purview of the act in question, most certainly it was not injured by a charge that made the contributory negligence of appellee an absolute bar to a recovery, when under the provisions of the law he was entitled to some damages no matter if he had been guilty of contributory negligence. Appellant was greatly favored by the charge, if it is comprehended in the act of 1909, and the charge is correct if it is not. This question arose in the case of Railway v. Mills, 116 S. W. 852, and this court held in connection with the act of Congress on the question of comparative...