85 S.W. 61 | Tex. App. | 1905
The evidence in this case shows that on November the 7th, 1902, defendant in error, a boy then twelve years old, in attempting to drive a milk wagon from an intersecting street across El Paso Street, was injured in a collision that occurred between his wagon and an electric street-car operated by plaintiff's in error servants along its railway. For the injuries thus sustained he sued and recovered from the company a judgment for $995 damages. He alleged in his petition that the defendant's servants were negligent in running the car at a dangerous and rapid speed, in failing to sound the gong or give signals or warnings of any kind, in failing to keep a lookout, and in failing to stop the car when they saw his perilous position. *222
The defendant's answer contains a plea of contributory negligence, in which it is averred that plaintiff carelessly and negligently drove his wagon upon the street crossing without keeping a proper lookout for approaching electric cars, and that his negligent failure to keep such a lookout proximately contributed to his injury.
The issue raised by this plea was practically the only one in the case, for the uncontradicted evidence adduced upon the trial is sufficient to show that the defendant was guilty of all the acts of negligence charged by plaintiff.
The plaintiff testified: "As I approached El Paso Street at its intersection with Second Street, I looked and listened for an electric car, but did not see or hear any, and kept on across El Paso Street, and across the track of the El Paso Electric Railway Company, which is on El Paso Street. I looked up and down the street fifty feet. I did not stop on El Paso Street, and did not see any car approaching, and did not know that one was approaching until the wagon was struck by an electric car. I do not know why I did not look further than fifty feet. I did that before I came to the crossing of the car track. I could see over fifty feet up the street. I could have seen all the way up the street if I had looked, and stooped over in the seat. I looked up and down the street fifty feet and saw no car. Yes, I could see all the way up and down El Paso Street, but I only looked fifty feet up and down. The street was straight there. I do not know anything that would hinder the motorman seeing me as the car approaches, nor anything that would hinder me from seeing the car."
The testimony clearly raises the questions whether the plaintiff used ordinary care to discover the approaching car; and, if he did not, whether his failure to do so was negligence proximately contributing to his injury. No specific presentation of these questions is found in the main charge of the court. It presents the issue of contributory negligence in a negative form, directing the jury if they should find the defendant guilty of negligence to find for plaintiff, if he was not guilty of contributory negligence. The defendant had the right to prepare and have given the jury a special charge, grouping the facts which, if true, would in law establish contributory negligence, and instructing them, if such facts were proven, to return a verdict in its favor. (Missouri, K.
T. Ry. Co. v. McGlamory,
The only other assignment of error complains of the court's charging the jury that, "if they found for the plaintiff, they might take into consideration, in estimating his damages, the probable effect and duration of the injury, if any, to his mind in the future," upon the ground that there was no evidence that his injuries were permanent. We think there was evidence warranting the charge. His mother testified: "He was a bright boy, and attended school regularly, and worked during vacation and before and after school, prior to his injury. Now he seems dull, and does not understand, or notice, or pay any attention. He has never seemed like the same boy since he was hurt. He very often complains of his head hurting him. Many and many times I have been up with him all night with his head. We have to give him medicine, and work with him, and bathe his head, and sometimes work with his head all night. I know boys are often careless, and don't give attention to what is said to them. I know that is more or less natural with children, but Solomon *224 seemed changed after the accident — did not seem like the same boy." From this the jury might have well concluded that this injured mental condition of plaintiff would probably continue, and injuriously affect him.
There is no error assigned requiring a reversal of the judgment, and it is affirmed.
Affirmed.