Rapid Transit Ry. Co. v. Edwards

• Decision Date: 10 April 1909
• Citation: 118 S.W. 838
• Court: Texas Court of Appeals
• Parties: RAPID TRANSIT RY. CO. v. EDWARDS.<SMALL><SUP>†</SUP></SMALL>

118 S.W. 838

RAPID TRANSIT RY. CO. v. EDWARDS.^†

Court of Civil Appeals of Texas.

April 10, 1909.

On Rehearing, May 1, 1909.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by J. B. Edwards against the Rapid Transit Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Finley, Knight & Harris, for appellant. Mathis & Freeman and Carden, Starling & Carden, for appellee.

TALBOT, J.

This is an action for damages on account of personal injuries sustained by appellee while serving the appellant in the capacity of a street car conductor. The defendant railway company answered by general and special exceptions to plaintiff's petition, a general denial, and pleas of contributory negligence and assumed risk. From a judgment in favor of the plaintiff for the sum of $1,400 this appeal is prosecuted.

Conclusions of Fact.

Appellee had been in the employ of appellant about two months, and about 11 o'clock at night on the 20th of August, 1906, while standing on the "running board" of one of appellant's summer cars in the discharge of his duties as conductor of said car, and while said car was in motion, he came in contact with a coal car, under the control of the Gulf, Colorado & Santa Fé Railway Company, standing on a spur or side track, owned by said railway company, which was near to, and lying parallel with, appellant's street car track, and was injured. The coal car had been standing near appellant's track the entire day of August 20, 1906, and up to the time appellee was injured. There was a bulge in the coal car near its center, and, by actual measurement made the next day after the accident, by one of appellant's employés, it was discovered that at this point the coal car came within 12 inches of the handles that extend up and down on the side of the street car. At the end of the coal car the distance between that car and the street car as the latter passed was 16 inches. Prior to 6:40 o'clock p. m. on the day appellee was hurt, the car under his control had been going north in passing the coal car, and during that time the running board of his car was on the opposite side of said car from the coal car, and he was in no danger of coming in contact with the coal car. At 6:40 o'clock p. m. of that day, however, the course of his car was changed, and ran south in passing the coal car, and while so running the running board in use was on the side next to the coal car. After the car began to run south, and perhaps the first time it passed the coal car, he noticed the coal car on the spur track, but did not know how close it was to appellant's track or the street car he was operating, and could not have known of its proximity to the street car without a close examination or measurement of the distance between them. Just before appellee was injured the cord used to operate the register that records or registers the fares collected became fastened in some way, and it was necessary for appellee to step up in the car to fix it. After loosening the cord so it would operate the register, he stepped down on the running board, and started to go forward to flag the street car over a railroad crossing, and just as he did so he was struck by, or came in contact with, the coal car, and received the injuries of which he complains. Neither the coal car, nor the spur track upon which it was standing, was under the control of appellant, and there is no direct testimony that appellant had actual knowledge of the close proximity of said car to its street car track or cars as they passed it. Appellant did, however, have an inspector, whose duty it was to make trips over its line of street railway and ascertain if there were any obstructions on or too near its track, and by the exercise of ordinary care the dangerous nearness of the coal car to its track could have been discovered. The failure to use such care, and to have the coal car removed, was negligence on the part of appellant, and such negligence was the proximate cause of appellee's injury. The appellee was not guilty of contributory negligence, nor did he assume the risk of injury from said car.

Conclusions of Law.

The first assignment of error is that "the court erred in overruling defendant's motion to quash the jury panel for the week, drawn under the law enacted by the Thirtieth Legislature Acts 1907, p. 269, c. 139), the ground of such exception being the unconstitutionality of said law." The proposition urged is that, as the act complained of provides a special jury law and system for counties which have cities aggregating in population 20,000, as shown by the United States census of 1900, and excludes from the operation of such law for all time all other counties in the state, it is an unreasonable and arbitrary discrimination, a special, and not a general, law, and violative of the Constitution of this state. There was no error in this action of the court. In the case of Northern Texas Traction Co. v. Danforth (Tex. Civ. App.) 116 S. W. 147, we had occasion to pass upon this question, and there held, upon the authority of Smith v. State, 113 S. W. 289, decided by the Court of Criminal Appeals of this state, and in which a very able and exhaustive opinion was written upon the subject by Judge Brooks of that court, that the law assailed was not unconstitutional. This ruling seems to have been approved and sustained by our Supreme Court, for that they recently denied a writ of error in the Danforth Case.

It is assigned that the court erred in refusing to instruct the jury at defendant's request, to return a verdict in its favor. The contention is (1) that the uncontroverted evidence showed that defendant was not guilty of any negligence resulting in plaintiff's injury; (2) that the uncontroverted evidence showed conclusively that plaintiff was guilty of negligence which contributed to any injury he may have received; (3) that the uncontroverted evidence showed conclusively that plaintiff assumed the risk of any danger incident to the location of the coal car upon the track of the Santa Fé Railway Company. We do not think that either of these propositions can be maintained. On the contrary, we are of opinion that the evidence was amply sufficient to require the submission of each of the questions involved to the jury for their decision, and, as indicated by our conclusions of fact, warranted their findings, which are necessarily embraced in their verdict, against appellant upon each of them. The mere fact that appellant did not actually know of the close proximity of the coal car to the street railway track before the accident was not sufficient to acquit it of the charge of negligence. It is undisputed that the car had been standing where it was when appellee was hurt practically all of the day on which the accident happened. T. R. Potts, appellant's claim agent, testified that it had inspectors at the time of the accident, whose duty it was, among other things, to look after everything that would hinder the service of the cars; that if there was any obstruction on the tracks, to look after it and keep the cars running. Appellee testified that appellant had inspectors to look after the tracks when he was injured, to see that they were clear. C. L. McManus, freight agent for the Santa Fé Railroad at Dallas, testified that if he had had any knowledge of the fact that there was a coal car on the Santa Fé track where the accident occurred, dangerously close to appellant's railway track, he would have...