Walker v. Metropolitan St. Ry. Co.

• Citation: 151 S.W. 1142
• Parties: WALKER et al. v. METROPOLITAN ST. RY. CO.
• Decision Date: 14 December 1912
• Court: Texas Court of Appeals

151 S.W. 1142

WALKER et al. v. METROPOLITAN ST. RY. CO.

Court of Civil Appeals of Texas. Dallas.

December 14, 1912.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Minnie Walker and others against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Dwight Lewelling and Wilson, Williamson & Simmons, all of Dallas, for appellants. Baker, Botts, Parker & Garwood, of Houston, and Spence, Knight, Baker & Harris, of Dallas, for appellee.

TALBOT, J.

This suit was brought to recover damages alleged to have been sustained on account of personal injuries charged to have been inflicted upon appellant, Mrs. Minnie Walker, through the negligence of appellee in causing her to be thrown from one of its cars. The petition alleges, in substance, that plaintiff, Mrs. Minnie Walker, was a passenger on one of defendant's "North Belt" cars in the city of Dallas, and desired to alight at Haskell avenue; that she signaled the conductor in charge of the car to stop the car at Haskell avenue, but the signal was disregarded; that the next street after passing Haskell avenue was Peak street, into which the street railway tracks entered and turned north, making a sharp curve; that in approaching this curve the car upon which plaintiff was riding was being negligently operated and run at a dangerous rate of speed, to wit, at about 30 miles per hour, and struck the curve at Peak street with great force, by reason of which negligence plaintiff was thrown from the car to the ground and seriously injured. The petition further alleges, as a ground of negligence on the part of defendant, that the rate of speed at which the car was being operated was in violation of a city ordinance of the city of Dallas, making it unlawful to "drive or move a street car" at a greater rate of speed than 12 miles per hour in that part of the territory of the city where the accident to plaintiff occurred. The defendant answered by general and special demurrers, a general denial, and specially that Mrs. Walker, on the occasion of the accident complained of, was guilty of contributory negligence in the following particulars, namely: "(a) She left her place of safety upon the defendant's car while the same was in motion, and proceeded to the running board thereof; (b) she alighted from one of defendant's cars while the same was in motion, and before it had stopped for passengers to alight therefrom; (c) that in alighting from said car she failed to follow the motion thereof, alighting therefrom in a negligent and careless manner." Defendant further says that, if the accident happened in the manner complained of, plaintiff's wife, Minnie Walker, occupied a seat in the car, and while she was so occupying same she was in a place of safety; that she voluntarily left her seat and place of safety in the car while the car was in motion and while it was approaching a curve in the defendant's track at the intersection of Main and Peak streets; that she then stood upon the floor of the car and stepped down upon the running board thereof; that any jerk or movement of the car around the curve was only such as was necessarily and ordinarily incident to the operation of the car; and that plaintiff's wife assumed the risk of any injury she may have sustained as the result of such operation, having full knowledge of the fact that said car was approaching the curve. A jury trial resulted in a verdict and judgment for the defendant, and the plaintiffs appeal.

The evidence shows that Mrs. Walker was a passenger on defendant's car, as alleged by her, and there is testimony to the effect that the car at the time of the accident was probably moving at a greater rate of speed than 12 miles per hour, and that Mrs. Walker by reason of the movement of the car, as it was making the curve at Peak street, fell or was thrown from it and seriously injured, but that the defendant was not guilty of actionable negligence, and that Mrs. Walker attempted to alight from a moving car, and simply in doing so, or in the manner she attempted to alight, was guilty of negligence, proximately causing her injuries, seems to be very clearly established by a preponderance of the evidence. That the evidence was, at all events, amply sufficient to authorize and sustain the verdict rendered in defendant's favor, is not denied; nor do we think it could be reasonably denied.

The first assignment of error is that "the court erred in sustaining the defendant's exception to that part of the plaintiff's petition wherein plaintiffs show that the defendant company, through its agents, failed and refused to stop said car, although properly signaled to do so, at Haskell avenue, said signal having been given in time for said car to stop," and charging that the defendant's conduct in that behalf was negligent and was one of the causes that precipitated the plaintiff's injury. The court also erred in sustaining the objection of the defendant to the admission of plaintiff's testimony to the effect that she "did signal for said car to stop at said Haskell avenue, and made efforts to have same stopped, but that it did not stop pursuant to her proper request." The record sent to this court does not show that any such exception as that mentioned in the assignment was presented to and acted upon by the trial court; nor does the record show by bill of exception or otherwise that the trial court sustained objections of the defendant to the admission of testimony offered by the plaintiffs to the effect that Mrs. Walker signaled for the car in which she was riding to stop at Haskell avenue. In the absence of a record entry showing that the exception referred to was sustained, the ruling of the court cannot be reviewed. Likewise, without a bill of exception showing that the testimony mentioned in the assignment of error was excluded, the court's action in reference thereto cannot be considered and reviewed by this court.

The third and fourth assignments of error are grouped. The third is as follows: "The court erred in not submitting to the jury in its main charge the issue as to the speed of the car and the law regulating the speed of running street cars within the corporate limits of the city of Dallas, and only submitting to them the common-law duties imposed upon the defendant, the ordinances and state law regulating the speed of cars and fixing the speed limits ought to have been submitted to the jury in the main charge, and the court erred in failing so to do." The fourth is: "The court erred in refusing the special charge requested on behalf of the plaintiff charging the jury as touching the effect of the law as written in articles 487 and...