San Antonio Traction Co. v. Kelleher

• Decision Date: 08 January 1908
• Citation: 107 S.W. 64
• Parties: SAN ANTONIO TRACTION CO. v. KELLEHER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

107 S.W. 64

SAN ANTONIO TRACTION CO. v. KELLEHER.^*

Court of Civil Appeals of Texas.

January 8, 1908.

Rehearing Denied January 29, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Personal injury action by J. P. Kelleher against the San Antonio Traction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Ogden, Brooks & Napier, for appellant. John Sehorn and T. M. West, for appellee.

NEILL, J.

This suit was brought by appellee against the appellant to recover damages for personal injuries alleged to have been inflicted by the latter's negligence. It was alleged by plaintiff in his petition: That on or about January 26, 1906, he was walking along South Flores street at or near its intersection with Baylor street in the city of San Antonio, Tex., when an electric car, operated by defendant's servants, approached him from the rear, ran against him, knocked him down, and ran over and crushed both his feet, whereby he was compelled to have the anterior portion of one amputated. That defendant and its employés in charge of the car were negligent in this: (1) That the car was being run at a rapid and dangerous rate of speed, to wit, at the rate of 20 miles an hour, contrary to and in violation of section 15, c. 49, of the Revised Criminal Ordinances of the city of San Antonio, which provides that no electric car shall be run in that portion of the city where plaintiff was injured at a greater rate of speed than 10 miles an hour; (2) that no gong was sounded by said car for at least 75 feet before reaching Baylor street, contrary to and in violation of certain designated ordinances of said city which were then in force; (3) that the employés on said car failed to keep a lookout, and negligently ran said car against him without giving any warning whatever of its approach; (4) that the employé in charge of the car by the exercise of ordinary care could have discovered plaintiff in time to have stopped the car and prevented his injury, but negligently failed to do so; and (5) that the employé in charge of the car discovered plaintiff's position of peril, and after such discovery could, by the use of the means at hand, have stopped or checked the speed thereof, and thereby have averted plaintiff's injury, but that such employé negligently failed to make any effort to either stop or reduce the speed thereof. That each and all the foregoing negligent acts caused or contributed to cause plaintiff's injuries. The damages were laid at $25,000. The defendant answered by a general demurrer, a general denial, and specially that, if plaintiff was injured as alleged, his injuries were caused and contributed to by his own negligence in being upon the street car track at the time and in the manner he was, and in failing to exercise due care for his own safety; that he was drunk and in an intoxicated condition, and negligently placed himself in front of the moving car. The trial of the case resulted in a judgment and verdict in favor of the plaintiff for $7,000. Such of the evidence as pertains to the assignments of error will be stated in disposing of such of them as require its consideration.

1. After plaintiff closed his evidence the defendant moved the court to instruct the jury to return a verdict in its favor. The refusal of the motion is the subject of the first assignment of error. With the exception of the ordinance regulating the speed of electric cars, the testimony of plaintiff was the only evidence that had been introduced when he closed his case and the motion of defendant to instruct a verdict was made. We have read from the record all this evidence. Without discussing it, we will say that we cannot perceive how any rational and unprejudiced human being can come to any other conclusion from this evidence than that plaintiff's injuries were proximately caused by his own negligence. This state of the evidence would exclude plaintiff's right to recover upon any of the grounds alleged, except that of discovered peril. There can be no doubt that the testimony of plaintiff, if true, is sufficient to show that he was in a position of peril; but this is not enough. To make out a case on the ground of discovered peril, the evidence must reasonably show that plaintiff's position of peril was discovered. The phrase "discovered peril" imports the absolute necessity of such proof. Not only this; but it must reasonably tend to show that, when discovered, the one charged with the infliction of the injury exercised ordinary care to use all the means at hand consistent with his own safety, the safety of others in his care, and, if a servant, with the safety of his master's property intrusted to him, to avert the injury. However negligent such person may be in every other respect, and however much any antecedent negligence may have contributed to the injury of plaintiff, such negligence is not even a factor in an action based alone upon his discovery of the peril of the injured party. Such other negligence may constitute an independent cause of action, but it has nothing to do with discovered peril. If, then, plaintiff, as he testified, was walking along the street car track in front of an approaching car, it may reasonably be presumed from the evidence that the motorman saw him; but, unless it can be said that the motorman knew or had reason to believe from the appearance of plaintiff that he would not leave the track before the car reached him, it cannot be said that the motorman knew that his position was one of peril, for the discovery of one in a position of peril involves knowledge of the peril. Under the state of the evidence considered under this assignment it is not known whether the motorman saw plaintiff walking along the track or not. This is wholly a matter of inference. The inference that he did see him does not necessarily carry with it the further inference that he realized that plaintiff would not leave the track in time to avoid being struck and injured; for the inference, though one of fact, would ordinarily be to the contrary. S. A. & A. P. Ry. v. McMillin (Tex.) 102 S. W. 104. Indeed in some jurisdictions such inference is regarded so cogent as to give courts a handle for holding it a matter of law. But if the inference could be drawn, from the inference that the motorman saw plaintiff walking on the track, that the motorman realized his peril, the further inference would have to be deduced that such peril was discovered by him in time, by the exercise of ordinary care, to use the means at hand to have prevented running the plaintiff down. This would be heaping inference upon inference, which is not permissible. It was not known at this stage of the trial how fast the car was running. It is averred by plaintiff, and insisted by his counsel, that its speed exceeded the rate prescribed by ordinance. If this be so, the greater would have been the difficulty, after discovering plaintiff's peril, in stopping the car in time to have averted his injury. Nor was it at this stage of the trial known with what appliances the car was equipped for stopping or checking its speed; nor, if it should be presumed they were such as are generally in use, that they were in good working order at the time, which cannot be presumed from the indulgence of the other presumption. That the motorman, if shown to have discovered plaintiff's peril, could, in the exercise of ordinary care, by the use of the means at hand after such discovery, have stopped or checked the speed of the car in time to have averted his injury, must be proved by plaintiff by a preponderance of the evidence in order for him to recover on the ground of discovered peril. In our opinion, even if it should be conceded the evidence was sufficient on other matters, this was not done. In the absence of such proof at the time plaintiff closed his testimony, we think the court should have granted defendant's motion to instruct a verdict in its favor. But it does not follow from this that the judgment should be reversed on this assignment of error. To have effected such result the defendant should have rested its case upon the refusal of the court to grant the motion to instruct a verdict in its favor upon the close of the plaintiff's testimony. Instead of doing so the defendant introduced its evidence. The effect of this was to waive its right to have the judgment reversed on account of the error of the court in refusing its peremptory instruction, if the plaintiff's evidence, together with that introduced by defendant, was sufficient to carry the case to the jury on any one or more of the alleged grounds of negligence. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 137. The question as to whether the evidence, after the introduction of all the testimony, was sufficient to require a submission of the case to the jury, will be determined in considering subsequent assignments.

2. The second assignment complains of the third paragraph of the court's charge, which is as follows: "Or if you believe from the evidence that on or about January 26, 1906, plaintiff was on the track of defendant on South Flores street and was struck by one of defendant's cars, and was thereby injured substantially as charged in his petition, and if you further believe from the evidence that while plaintiff was on said track as the car approached him he was in a position of peril, and that the motorman in charge of said car, by the exercise of ordinary care as he approached plaintiff, could have discovered plaintiff's peril in time to have avoided injuring plaintiff by the use of the means at hand, consistent with the safety of his passengers and car, and if you also believe from the evidence that said motorman failed to discover plaintiff in a position of peril in time to prevent injuring him by the use of the means at hand, and that such failure, if any, was negligence, and that such negligence, if any, was the direct cause of plaintiff's...