San Antonio Traction Co. v. Upson

• Court: Texas Court of Appeals
• Writing for the Court: Neill
• Citation: San Antonio Traction Co. v. Upson, 71 S.W. 565, 6 Tex. Ct. Rep. 447, 31 Tex. Civ. App. 50 (Tex. App. 1902)
• Decision Date: 17 December 1902
• Parties: SAN ANTONIO TRACTION CO. v. UPSON.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 565

SAN ANTONIO TRACTION CO. v. UPSON.^*

Court of Civil Appeals of Texas.

December 17, 1902.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by James V. Upson against the San Antonio Traction Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Houston Bros. and R. J. Boyle, for appellant. Nat B. Jones, C. K. Breneman, and Jas. V. Upson, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant to recover $5,000 damages for injuries sustained to his person and his buggy by reason of a collision with one of the company's street-cars, occasioned by the negligence of the company. Appellee alleged in his petition that at the time the accident occurred the city council of the city of San Antonio "had enacted an ordinance fixing a rate of speed which defendant's cars should not exceed, to wit, ten miles per hour within a radius of one mile from the center of the city of San Antonio; that said ordinance was reasonable and in full force and effect; that the tracks of defendant's railway were and are along the west side of Alamo Plaza, a public square and highway of said city, which is within a radius of one mile from its center; that on the 19th day of February, 1901, about 4:30 o'clock on the afternoon of that day, plaintiff was traveling in a buggy drawn by a horse along Alamo Plaza, and when he reached and was crossing the tracks of defendant thereon, as he had a right to do, the defendant, by and through its agents and servants, with gross and willful negligence, caused one of its cars to pass rapidly over the tracks of its said road at a greater rate of speed than ten miles an hour, to wit, at about twenty or more miles per hour, toward the buggy in which plaintiff was traveling as aforesaid, and negligently, carelessly, and willfully omitted, while said car was so approaching plaintiff, to check or attempt to check, or give any signal by gong or otherwise, although plaintiff was in plain view and seen by the motorman of defendant in charge of said car; and by reason of said negligence of the defendant, and without fault or negligence of the plaintiff, the said car ran upon and struck the buggy in which plaintiff was traveling as aforesaid, and broke the wheels, bed, dash, and shafts thereof, and also struck plaintiff upon the head with great force, knocking him senseless, cutting his head and face, and bruising his arms and leg, and causing him great loss of blood and much pain and suffering." These allegations are followed with proper averments of the damages alleged to have been sustained by the negligence charged. The appellant answered by a plea of not guilty, and pleaded that plaintiff was guilty of contributory negligence, in that he recklessly and negligently drove in front of and into collision with the street car. The case was tried before a jury, and resulted in a judgment in favor of the plaintiff for $750, from which this appeal is prosecuted.

Conclusions of Fact.

The evidence is reasonably sufficient to sustain the following findings: (1) That on the 19th day of February, 1901, while one of appellant's street cars was being propelled along Alamo Plaza, in the city of San Antonio, at a rapid speed, it came in collision with appellee's buggy, in which he was then riding, broke and damaged the buggy, and inflicted painful and serious injuries to appellee's person; (2) that it was negligence on the part of appellant, through its motorman in charge of said car, to run it along said plaza, a public thoroughfare, at the rapid speed it was propelled when the collision occurred; (3) that such negligence was the proximate cause of the damage to appellee's buggy and of the personal injuries sustained by him; (4) that appellee was not guilty of any negligence proximately contributing to his damages and injuries; and (5) that the damages sustained by appellee by reason of the negligence of appellant are $750, the amount assessed by the jury. Of these conclusions, the fourth is the only one we have had any difficulty in reaching. The evidence upon which it rests is conflicting; and, viewing it in the light most favorable to the appellee, which we must do in deference to the verdict, the writer is not without doubt as to the correctness of the conclusion. The evidence upon which we base such conclusion will to some extent be stated in connection with our conclusions of law upon the assignment regarding the question of contributory negligence.

Conclusions of Law.

1. The appellee offered a portion of section 15, c. 49, of Revised Criminal Ordinances of 1899 of the City of San Antonio, which is as follows: "Hereafter no electric car shall be propelled or operated within the limits of the city of San Antonio, or run at a greater rate of speed than ten miles an hour within a radius of one mile from the center of the city." The appellant objected to its introduction in evidence "because the same was not based upon any pleading in the case, and immaterial, irrelevant, and not pertinent to any issue." The objections were overruled, and the ordinance read in evidence. A bill of exceptions was reserved to the ruling, which is made the basis of appellant's first assignment of error. The evidence shows that Alamo Plaza, where the collision occurred, is a little less than one-half mile from the center of the city. There was also evidence strongly tending to show that the speed of the car was 18 or 20 miles an hour when the collision occurred. Under this assignment it is contended by appellant that, though it is alleged in the pleadings the car was being operated at a speed in excess of the rate prescribed by the ordinance, there is no allegation that the operation of the car at such speed in any way caused or contributed to appellee's injury. It may be seen from the allegations in appellee's petition, copied in our statement of the nature of the case, that he bases his action upon appellant's negligence in running the car rapidly over the track at a speed in excess of 10 miles an hour, and upon the negligence of the motorman in charge of the car, while appellee was in plain view of him, in failing to check its speed or give any signal of its approach. The action is no more predicated upon appellant's motorman's negligence in failing, after seeing appellee, to check the car or signal its approach, than it is upon appellant's negligence in running the car at such rapid and excessive rate of speed. To make out his case, the appellee was not required to prove both grounds of negligence. Proof of either was sufficient to warrant his recovery, if not defeated by contributory negligence. It is true that both acts of negligence averred are characterized by the pleader as gross; but this did not preclude appellee from recovering upon the proof of ordinary negligence, as there would be merely a failure to prove a part of his allegation if gross negligence were not established. Railroad Co. v. Cook's Adm'r (Ky.) 67 S. W. 383. There were specific allegations that the speed of the car was in excess of that prescribed by ordinance, and upon the issue as to whether its speed at the place where the collision occurred was excessive the ordinance was competent evidence. Barrett v. Smith, 128 N. Y. 607, 28 N. E. 23.

2. The objection made under the second assignment of error to the first paragraph of the court's charge is predicated upon the false assumption that the only negligence charged in the petition is the willful omission of the car operator to check the speed of the car or warn plaintiff after seeing him on the track, and is, therefore, without merit. The same may be said as to the third and fourth assignments.

3. The seventh paragraph of the charge is not obnoxious to the objection that there was no evidence authorizing the jury, in estimating the damages, to consider any amount necessarily expended by appellee in repairing the damage done to his buggy by the collision. The uncontradicted evidence shows that the vehicle was badly smashed and broken, and appellee testified that his bill for fixing it was $26; and the record indicates that such bill itself was offered in evidence. This made a prima facie case as to such item of damages, and as the appellee was not cross-examined as to it, or any evidence in rebuttal offered by appellant, we think the court properly instructed the jury to...