Texarkana Gas & Electric Co. v. Lanier

• Decision Date: 10 February 1910
• Parties: TEXARKANA GAS & ELECTRIC CO. et al. v. LANIER et al.
• Court: Texas Court of Appeals

126 S.W. 67

TEXARKANA GAS & ELECTRIC CO. et al. v. LANIER et al.

Court of Civil Appeals of Texas.

February 10, 1910.

On Motion for Rehearing, March 17, 1910.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by Mrs. Belle Lanier and others against the Texarkana Gas & Electric Company and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Glass, Estes, King & Burford, for appellants. P. G. Henry and Smelser & Vaughan, for appellees.

HODGES, J.

The appellees are the surviving widow and children of one Lanier, who was killed in a collision with a street car in the city of Texarkana on April 24, 1907. The appellants are the company that owned and operated the street car line at the time, and the motorman who was in charge of the car that ran over and killed deceased. The suit is to recover damages for the death of Lanier. A trial in the court below resulted in a verdict against the appellants for $10,000.

The testimony showed that Lanier was struck and killed at a point where Fourth street, the one occupied by the car line, was intersected by Congress street. Fourth street runs east and west, and Congress street north and south. The car was going east, and Lanier approached from the south. Two vehicles going in opposite directions met just east of the east line of Congress street, so that the rear of the one going east was about on a line with that side of Congress street. The drivers of the vehicles stopped them at that point for the purpose of permitting the street car, which they saw approaching, to pass; the space between the sidewalk and the car line being too narrow to permit passage without one or the other going upon the car line. The animal hitched to the vehicle going west, meeting the car, appears to have attracted some attention on account of his indisposition to stand still. The distance from the south side of Fourth street, including the sidewalk, to the south rail of the car line was about 27 feet; the space occupied by the sidewalk at that place being unusually wide, and upon an elevated portion of the ground. There was nothing in this space between the south side of Fourth street and the car to obstruct Lanier's view of the car, or the motorman's view of him while in that space. It seems that, as Lanier approached the track, he was looking at the restless horse, and did not notice the car. The witnesses differ as to the distance he was from the car when he stepped on the track; one of them testified that the car was 6 or 8 feet away; others say the distance was shorter. The motorman testified that he was running the car at about five or six miles per hour; that he rang his bell when about 100 or 150 feet west of the junction of the two streets, the point where Lanier was killed; that he did not ring it again because his attention had been attracted to one of the horses above referred to, which appeared to be restless, and he thought it probable that it might be frightened by the noise of the bell. He also says he did not see Lanier till the latter stepped upon the track about 5 or 6 feet in front of the car; that he then did not ring the bell because he did not have time, but did everything in his power to stop the car and avoid the collision. The car was at the time going down a slight grade, and was stopped within about 35 or 40 feet after Lanier was struck. Mrs. Lanier testified that her husband's hearing was defective, and that she had previously cautioned him about crossing the street car line.

The only grounds of negligence submitted by the court were those based upon discovered peril. There was testimony tending to show that, considering the rate of speed at which the car was traveling, it could have been stopped within the distance intervening between it and Lanier after he got on the track, or its speed so checked that injury might have been avoided. The testimony also justifies the conclusion that the motorman could, and probably did, see Lanier before he got upon the track, and while he was approaching it; it being reasonably evident that Lanier must have passed directly between the motorman and the vehicle which he asserts he was observing.

In view of the fact that this judgment must be reversed upon other grounds, it will not be necessary to discuss the assignments questioning the sufficiency of the evidence, or that complaining of the verdict as being excessive.

At the inquest held over the body of Lanier, Maddox, the motorman, made the following statement, which was reduced to writing and signed by him: "E. C. Maddox, being duly sworn by me, testified as follows: At about 6:12 p. m. on the 24th day of April, 1907, car No. 1, owned and operated by the Texarkana Gas & Electric Company, and which car was in my charge as motorman, ran over Thomas G. Lanier, and drug him about a car length. The point at which the car ran over him was at the corner of Congress avenue and Fourth street in Texarkana, Bowie county, Tex. I was running the car at a speed of from seven to eight miles an hour, and was running at this speed, which is about four miles per hour under the usual speed, because I noticed a buggy going east and a buggy going west, and they met right at the crossing, and a man stepped right out from behind the buggies, and attempted to cross in front of the car, and I was in three or four feet of him before I saw him, and was unable to control the car in time to keep from running over him in that distance, and I used every effort in my power to prevent the accident. He was going north when the car struck him; he was in the middle of the track, and ran directly over him. My car had a fender on it, but apparently did no good, for the reason that at the place where he was run over the dirt between the rails had been washed out, and when he was knocked down the fender was then for this reason too high to lift him off the track, and failed to afford any protection whatever. Have had about one year's experience in running electric cars, and our particular instructions are to keep a good lookout in front. My experience is that a car running from seven to eight miles an hour cannot be stopped under 35 feet, and in this distance, as the brakes were partly set, I rang the bell and reversed the car and threw the brakes fully on, which was all that I could have possibly done. He was not killed outright, but was taken up by the barnman who lives at College Hill in Texarkana, Ark., and carried to the sidewalk. I came in after the ambulance, and he was carried to his home. Dr. Beck was called, and attended upon the injured man from the track to the house. I was told that Mr. Lanier died about an hour after he was run over by the car. [Signed] E. C. Maddox."

On the trial in the district court Maddox was subjected to a rigorous cross-examination regarding his statements made at the inquest, and his attention was called to the discrepancies between those statements and his testimony given upon the trial. It appears from the record that there had been a previous trial in the court below, in which Maddox's testimony was taken down by the court stenographer, and upon the trial from which this appeal is prosecuted the stenographer's report was used; Maddox not appearing in person. The variance between Maddox's testimony at the inquest and that given upon the trial appears to be mainly as to the rate of speed at which the car was traveling and the ringing of the bell. The witness admitted making the statements at the inquest, and gave his own explanation of the variance, saying that he was in error when testifying on that occasion. After the defendants in the court below had concluded their testimony, the appellees offered in evidence the written statement containing Maddox's testimony at the inquest. This was admitted over the objection of the appellant Texarkana Gas & Electric Company. The action of the court in admitting this testimony is assigned as error. In this connection complaint is also made of the following portion of the court's charge: "Plaintiffs in this case read in evidence the written evidence of E. C. Maddox, taken at the inquest trial held by the justice of the peace over the body of said Lanier. This is original evidence as against the defendant Maddox, and may be so considered by you. But this evidence is not original evidence as to the defendant company, and can't be so considered by you. But if you believe that said evidence of Maddox differs from his evidence as given by him on this trial, and contradicts, or tends to contradict, his evidence, then I charge you that you may consider such evidence of said Maddox at the inquest in passing on his credibility as a witness in this case and weighing his evidence, but you can consider it for no other purpose as to the defendant company." In offering this testimony the appellees did not specify the purpose for which it was intended. The charge of the court would seem to indicate that it was offered both as substantive evidence against Maddox, one of the parties to the suit, and also for the purpose of impeaching him as a witness. We fail to see how its introduction would tend to establish any ground of negligence relied upon for a recovery not fully and completely covered by other testimony about which there was no dispute. Upon the issue of discovered peril it seems to us that it weakens rather than strengthens the appellees' cause, in that it shows a greater rate of speed in the car, and necessarily a greater difficulty in avoiding the collision after discovering the peril of the deceased. It also shows that the bell was sounded, whereas one of the grounds of negligence relied upon was the failure to perform that duty. These facts, however, would not affect its admissibility as substantive evidence, but only its probative value. We may therefore concede that as to Maddox it was admissible as substantive evidence of some material fact relied upon for recovery. But we do not...