San Antonio & A. P. Ry. Co. v. Boyed

• Decision Date: 18 February 1918
• Docket Number: (No. 319.)
• Citation: 201 S.W. 219
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. v. BOYED.

Page 219

201 S.W. 219

SAN ANTONIO & A. P. RY. CO. v. BOYED.

(No. 319.)

Court of Civil Appeals of Texas. Beaumont.

February 18, 1918.

Rehearing Denied March 6, 1918.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by Hattie Boyed individually and as next friend of Anthony Boyed, a minor, against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff in her representative capacity, and defendant appeals. Affirmed.

Henderson, Kidd & Henderson, of Cameron, for appellant. U. S. Hearrell, of Cameron, for appellee.

BROOKE, J.

This suit was filed by Hattie Boyed, for herself and as next friend for her minor son, Anthony Boyed, against appellant, San Antonio & Aransas Pass Railway Company, to recover damages for the death of Garfield Boyed, alleged to have been the husband of Hattie Boyed and the father of Anthony Boyed. Appellee's original petition alleged that the death of the deceased was caused by the negligence of the appellant's servants and employés in the handling of one of appellant's trains, which struck and killed the deceased. A trial before a jury resulted in a verdict and judgment in favor of Anthony Boyed against appellant in the sum of $600, and in a verdict and judgment in favor of appellant as against Hattie Boyed. Appellant filed motion for new trial of the said Anthony Boyed's cause of action, which was by the court overruled, to which action of the court in overruling said motion appellant duly excepted, and gave notice of appeal. Appellant perfected its appeal, which is presented to this court upon assignments urged in the motion for new trial.

The first assignment of error is as follows:

"The court erred in overruling defendant's objection to the introduction of the city ordinances as evidence in said cause, and in permitting such ordinances to go to the jury as evidence in said cause; because the plaintiffs' pleading was insufficient to warrant the introduction in evidence of such ordinances, and because said ordinances were not proven up or shown to have been in force at the time of the accident and injury complained of, as fully shown in defendant's bill of exception."

Under this assignment three propositions are urged, as follows:

(a) "The courts of this state do not take judicial knowledge of the ordinances of cities incorporated under the general laws; and such ordinances must be alleged and proved as any other facts."

(b) "Ordinances of a city which is incorporated under the general laws of the state are not admissible in evidence until they are shown to have been printed and published by authority of the city council of such city."

(c) "No ordinance of any city incorporated under the general laws of this state imposing a penalty or fine takes effect or is in force or becomes operative until it is published for ten days in the official paper of such city."

The petition complained of charged appellant with negligence—

"in violating the city ordinances of the city of Cameron in running at a much greater rate of speed than is permitted and allowed by said ordinance duly enacted and in force at the time of the accident."

In our judgment, the allegation was sufficient to notify the appellant that the city ordinance would be offered in evidence, and it was good, at least in the absence of a special exception. Appellant did not except to the petition specially. In the trial court appellant did not object to the ordinance on the ground that it had not been published, and it is urged that it is now too late to urge such objection in this court. It is also urged that objections to evidence must be specific, and on appeal the appellant will be confined to the very objection made in the court below.

We are of opinion that the action of the trial court was correct in holding, under the opinion in the case of Tompkins v. Pendleton, 160 S. W. 290, that the contention of appellant could not be...