San Antonio Traction Co. v. Court

• Citation: 71 S.W. 777
• Parties: SAN ANTONIO TRACTION CO. v. COURT.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 07 January 1903
• Court: Texas Court of Appeals

71 S.W. 777

SAN ANTONIO TRACTION CO. v. COURT.^*

Court of Civil Appeals of Texas.

January 7, 1903.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Henrietta Court, by her next friend, etc., against the San Antonio Traction Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Houston Bros. and R. J. Boyle, for appellant. H. B. Salliway and J. R. Norton, for appellee.

FLY, J.

Appellee, a minor, through her father, Henry Court, instituted this suit to recover damages inflicted upon her by a street car belonging to appellant, and obtained a judgment for $1,000. It was alleged that the car was being run at a reckless rate of speed, and that the gong was not sounded on crossing St. Mary's street, and that the motorman negligently failed to look ahead for persons on the track, but looked in another direction, and thereby failed to discover the dangerous position of the child. The evidence discloses that the car was running slowly; that the child walked from the direction the car was coming, obliquely on the track, about 12 feet ahead of the car; that persons shouted to the motorman, and he looked towards them. There was evidence to the effect that the motorman was talking to another employé just before the child was hurt. At the time or just before the child was struck the motorman was looking towards people who were shouting on the sidewalk. One witness testified that the shouting came from the street, and the motorman was putting on the brake just before the car stopped. We find that the jury was justified in finding either that the motorman negligently failed to discover the child on or near the track in time to stop the car, or that he saw the child in time, but negligently failed to stop the car. The child was only four years of age, and was damaged in the sum found by the jury.

Among the appliances of modern civilization there is none perhaps that is attended with more constant danger to life and limb than the operation of street surface railroads in cities and towns by means of electricity. Operating, as they do, in the busiest and most frequented localities, propelled by a subtle and powerful agency, at a higher rate of speed than other vehicles allowed upon streets and thoroughfares, it has been found necessary to require of their operators a high degree of care and caution in their conduct towards pedestrians and those using other and different kinds of vehicles. Having in view the danger to human life in the operation of such cars, it is uniformly held that it is the duty of motormen in crowded city streets to be on the lookout, and to employ all reasonable means to avoid accidents, and to recognize and respect the equal rights of others to the use of the streets. Railroad Co. v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32; Railway Co. v. Mechler, 87 Tex. 628, 30 S. W. 899; Railway Co. v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 829; Railway Co. v. Thompson (Tex. Civ. App.) 47 S. W. 1038.

The requirement of care, as above stated, applies to all adults or infants; but in the case of the latter of tender years, who have not reached the years of discretion, a higher degree of care is demanded when discovered in a position of probable danger. The same degree of care towards such an infant as would be required towards an adult would not be a defense to a charge of negligence, but would, as has been said, amount to what is termed "gross negligence." The employé of the carrier can, when he sees an adult approaching its track, usually indulge in the presumption that he is sane and will not place himself in a position of danger; but not so in the case of a child, who has not reached the years of discretion. No presumption can be indulged in in regard to such a child, but the carrier must govern its actions with a view to the unreasoning conduct usually evinced by that class of persons. Railroad Co. v. Hewitt, above cited: Evansich v. Railway Co., 57 Tex. 126; Cook v. Navigation Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52; Telegraph Co. v. Hoffman, 80 Tex. 420, 15 S. W. 1048, 26 Am. St. Rep. 759.

In the case of Railway Co. v. Mechler, 87 Tex. 628, 30 S. W. 899, it is said: "When it is known that a young child is approaching the track with the apparent intention of crossing it in front of a moving car, or if it be discovered upon the track, the highest degree of diligence must be exercised to prevent injuring it." And when so discovered the sounding of gongs or ringing of bells would be no ground of defense, because to the child without discretion they would be meaningless, and nothing short of the greatest effort to stop the car and avert the danger would free the street car company from negligence.

It is the duty of street surface railway companies in cities and towns to keep a careful lookout for persons or vehicles, not only on the track, but those appearing likely to enter upon the track in proximity to the cars. Ordinary railway companies have exclusive right to use their tracks, except at crossings, and they may act on the presumption that their tracks will be clear, and yet even...