San Antonio Traction Co. v. Cassanova

• Decision Date: 29 January 1913
• Citation: 154 S.W. 1190
• Parties: SAN ANTONIO TRACTION CO. v. CASSANOVA.
• Court: Texas Court of Appeals

Page 1190

154 S.W. 1190

SAN ANTONIO TRACTION CO. v. CASSANOVA.

Court of Civil Appeals of Texas. San Antonio.

January 29, 1913.

Rehearing Denied March 19, 1913.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by J. L. Cassanova, by next friend, against the San Antonio Traction Company. From a judgment for plaintiff for $10,000, defendant appeals. Reversed and remanded.

Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. C. C. Harris and John Sehorn, both of San Antonio, for appellee.

FLY, C. J.

This is a suit instituted by appellee, a minor, through his next friend, to recover damages from appellant, alleged to have been sustained by appellee through the negligence of appellant in striking a vehicle, in which appellee was riding, with one of its cars, whereby he was thrown to the street and seriously and permanently injured. The grounds of negligence alleged consisted in permitting the track to project too far above the surface of the street, and in failing to check or stop the car after the peril of appellee had been discovered. There was a trial by jury, resulting in a verdict and judgment in favor of appellee in the sum of $10,000.

The first assignment of error assails the first paragraph of the charge of the court, which permitted a recovery, under certain conditions, if the rail of the track projected above the surface of the street so as to cause the cart wheels to "skid" or slide along the rail, and such sliding caused the collision, because the rail was not the proximate cause of the injury, and appellant could not have foreseen that such injury would result from the condition of the track. The evidence clearly indicates that the driver of the cart would have succeeded in his attempt to leave the track, had it not been for the condition of the track; and its projection was therefore a proximate cause of the accident. Appellee swore: "We was in a two-wheeled cart, throwing papers on the street, and we seen the car coming and tried to get out of the way, and the man tried and tried to get the horse out of the street car's way, and the street car track was too high, and the wheel couldn't get out of the track, and the man who was driving guided his horse out of the track, and the wheel slid in the track, and the man who was driving never did stop the car, and he struck the cart."

The authorities presented by appellant fail to sustain its proposition. It is stated by appellant that the Iowa case (De Camp v. Sioux City, 74 Iowa, 392, 37 N. W. 971) has facts "practically identical with those in the case at bar." We think not. In that case a city was sued for permitting street car tracks to become defective, which caused a butcher's wagon to come into collision with his express wagon. It was shown that the collision occurred by reason of the reckless and unlawful driving of the butcher, and not by the negligence of the city. It has no application to the facts of this case. We think the facts in this case show that the injury was the natural and probable consequence of the negligence of appellant in leaving its track in the condition that it was, and it should have foreseen that such an accident might occur. It might as well be argued that if a frog is left unblocked it cannot be foreseen that a man will get his heel fastened in it and be run over by a locomotive. There are numerous cases, however, of that kind, which have been sustained. Railway v. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264; Railway v. Walker, 70 Tex. 126, 7 S. W. 831, 8 Am. St. Rep. 582. Appellee was using the street as he had the right to do, and it was the duty of appellant to keep its track in such condition that appellee could use it with safety.

Appellee was not required to plead or prove that it was the duty of appellant to keep its track in such condition as not to interfere with free and unimpeded travel thereon. The streets are laid out and built in cities and towns primarily for the use of vehicles and persons, and the use of them by railways of any kind is merely permissive, and to a great extent subservient to the original design. Railroad v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. St. Rep. 32; Street Railway v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 829; Traction Co. v. Haines, 45 Tex. Civ. App. 289, 100 S. W. 788.

It is the duty of a street railway company to use reasonable care and diligence to keep its roadbed in repair so as not to obstruct travel across or along the same, whether such duty is enjoined by legislative act or stipulated in the charter, or in an ordinance, or not. The duty arises from the use of the street by the railway company. Railway v. Medlenka, 17 Tex. Civ. App. 621, 43 S. W. 1028; Laredo Electric Railway v. Hamilton, 23 Tex. Civ. App. 480, 56 S. W. 988. It was a matter of defense to show that the defect was not known to appellant, if such want of knowledge be a defense, as we do not think it is. A prima facie case was made when it was shown that the obstruction was in the street.

The second assignment of error is disposed of by our disposition of the first assignment. In the case of Street Railway v. Delesdernier, 84 Tex. 82, 19 S. W. 366, a lady was driving across the street railway track, and her buggy struck a rail which projected only one-fourth to three-fourths of an inch above the surface of the street, and she was thrown to the pavement and hurt, and the street railway company was held liable, because the duty rested on it to so construct its track as not to interfere with the free use of the street, and to keep it in that condition.

It was alleged in the petition "that the dangerous position of said vehicle, as above set out, was obvious, plainly seen, and well known to defendant's servants and employés in charge of and operating said approaching car, or by the use of ordinary observation and care the same could have been known to said employés and servants, as aforesaid; but, notwithstanding the dangerous position of said vehicle and its occupants, defendant's servants and employés in charge of and operating said car failed and refused to check or stop said car, and recklessly and negligently drove same rapidly towards Joe Cassanova," etc. The allegation is sufficient to raise the issue of discovered peril, and justified the charge of which complaint is made in the third assignment of error.

The evidence of the motorman showed that he saw the cart and its two occupants for quite a distance before he struck them; that the track was free from anything that obstructed his vision; and it was shown that the car could have been stopped, running at the rate the motorman stated it was, in four or five feet. The motorman stated that prior to the accident no one was driving the horse, but that the lines were tied to the seat. He must have seen the cart and occupants in order to have so testified. He must have seen them, and must have realized their perilous position. Railway v. Renken, herein cited. It was his duty to see them. We therefore overrule the fourth and fifth assignments of error.

It has been held in numerous cases that, when the allegations as to injuries are such as to show that the earning capacity of the injured person was necessarily impaired, it is sufficient to justify a submission of the issue, even though it has not been alleged in terms that the earning capacity was impaired or destroyed. Railway v. Curry, 64 Tex. 85; Railway v. Smith, 28 S. W. 110; Railway v. Johnson, 37 S. W. 771; Railway v. Parish, 93 S. W. 682; Traction Co. v. Probandt, 125 S. W. 931. The charge complained of does not permit a double recovery. Railway v. Lynch, 22 Tex. Civ. App. 336, 55 S. W. 389. The facts alleged and proved, as to the injuries, show that they were of such a nature as to seriously impair the earning capacity of appellee. The sixth and seventh assignments of error will not be sustained.

If there was any testimony tending to show that the horse shied in such a manner as to throw or back the cart against the car, the court did not err in refusing to submit such issue to the jury in the manner requested. The special charge did not contain the law, if there had been evidence to sustain it. Shelton v. Traction Co., 32 Tex. Civ. App. 507, 75 S. W. 338, and authorities therein cited. The motorman swore that the cart backed into the car, which was a remarkable performance in the light of the fact that the car and cart were moving in different directions when the collision occurred. If the testimony was true, the shying of the horse merely concurred with appellant's negligence, and the special charges were properly refused.

By the law of 1905 (article 2021, Rev. Stats. 1911) it is provided that, where the ground of the motion for new trial is misconduct of the jury, the court shall hear evidence thereof, and may, in his discretion, grant the motion. Jurors are made competent to testify in regard to the matter; provision being made for their testimony, and that of others, to be in open court. Undoubtedly, under the provisions of the statute, the burden would rest upon the party seeking to impeach or discredit the verdict, and the judgment of the court on the testimony adduced must have the same force and effect as would his judgment in any other case on the facts; that is, if there is evidence to support it, it cannot be disturbed by an appellate court. The law places the discretion, as to sustaining or overruling the motion for a new trial on the grounds specified in the statute, in the trial court; and appellate courts have no authority to disturb the ruling thereon, unless it is apparent that there has been an abuse of such discretion. This construction of the statute was first announced by this court in Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 229, and it has been followed by other Courts of Civil Appeals and the Supreme Court. Railway v. Blalack, 128 S. W. 706; Railway v. Gray, 137 S. W. 731; s. c. (Sup.) 143 S. W. 606; Railway v....