70 Tex. 602 | Tex. | 1888
Reese A. Hays, the appellant, a boy eleven years old, was seriously injured by reason of the wheels of one of the cars of the Gainesville Street Railway running over his foot, under the following circumstances: Appellant, in company with a number of other boys, was returning from .school along North Dixon street in the city of Gainesville, over which appellee had constructed its street railway, and was engaged in operating its cars. Hays was in the street on the west side of appellee’s track, going in the direction of his home, which was southeast of the track. At the same time one of" ■appellee’s cars was approaching from the north, drawn by a mule, going in a slow trot. Hays and a boy named Purdy were playing, the former running along, and within a few feet of the street car track, closely pursued by Purdy, who was about to overtake him, when Hays turned suddenly to the left, colliding with the mule drawing the car, striking the mule about the shoulders, causing him to shy, which caused Hays to fall. The mule moved on, drawing the car wheels over Hays’s foot and ankle, fracturing the bones, and causing much pain and suffering. It was shown that from the shoulders of the mule to the front wheel of the car is a distance of eleven or twelve feet; and there was evidence tending to show that by applying the brakes attached to this car it could have been stopped within a space of six feet. There was also evidence
The collision occurred near the point where appellant was in the habit of crossing the track in going to and returning from his home. He did not see or hear the car, though he could have done so had he have listened or looked. The reason he-did not see the mule in time to avoid the collision was that he was looking back at his pursuer. The trial resulted in a verdict and judgment for the appellee. Alleged errors in the-charge of the court, and in the admission and rejection of evidence are relied on for a reversal of the judgment. The controlling question in this, as in almost all other cases of personal injury, is as to which party is guilty of negligence contributing proximately to the injury.
Negligence is a relative term, and its applicatian depends on the situation of the parties and the degree of care and vigilance-which the circumstances reasonably impose. The degree ia not the same in all cases, but may vary according to the danger involved in the want of vigilance. (Cooley on Torts, 630.) To illustrate, it would involve little or no want of care to cross a. road or street on foot used exclusively for ordinary travel without looking either way for persons on horseback or in vehicles, because usually there is but little danger in so doing, while it would be gross negligence to cross a railroad track over which many trains of cars are accustomed to pass every hour in the day without using the utmost vigilance and circumspection» In determining whether it is an act of negligence to go upon a street car track, the frequency of the passage of cars, their usual rate of speed, whether more people are accustomed to pass at that particular place, whether there is a duty imposed by law on the drivers to keep a look out, and give warning of approaching danger, and the like circumstances may be taken.
The term gross negligence includes all lesser degrees of negligence, and a charge in a petition that an act was done through gross negligence, would not limit the right of recovery if otherwise entitled; to an injury inflicted by the willful or intentional act of another. Negligence is of a negative character, and implies a want of care. In order for an act to be negligent it is never necessary that it should be done through design, though it is said that an act may be so grossly negligent that it may be presumed to have been willfully or intentionally done.
The sixth paragraph of the charge is as follows:
Although you may believe from the evidence that the driver of said street car was guilty of negligence, which contributed to the injury in question, still if you further find from the evidence that the plaintiff was also guilty of negligence, which directly contributed, to the injury, then the plaintiff can not recover in this suit, unless the jury further find from the evidence that the negligence of the driver of said street car was malicious and willful, or wantonly reckless, showing an utter disregard for plaintiff, and that the negligence of plaintiff was but slight, as will be hereinafter explained to you.
In the seventh paragraph of the charge the jury is again told that if plaintiff was guilty of contributory negligence that he can not recover, unless the injury was caused by the willful, wanton or malicious act of the driver.
We are also of the opinion that the proposition announced in paragraph six, and repeated in paragraph seven, of the charge to the effect that if plaintiff was guilty of contributory negligence he can not recover unless the car driver willfully or intentionally inflicted the injury upon him should not have been given except upon the theory that the driver failed to discover plaintiff’s peril in time to avoid injuring him by the use of such means as a prudent and careful man would have employed under the same circumstances; for, if the driver could have thus avoided the injury after discovering plaintiff’s peril, his want of ordinary care was the proximate cause of it, and defendant would be liable for damages. The reason why a person who, if guilty of contributory negligence contributing to his own injury, can not recover is because the policy of the law will not ordinarily permit one to recover who is himself at fault; but although the negligence of such person may contribute to his own injury, yet if the person inflicting it discovers the peril of the other in time by the reasonable exercise of the means at hand, to have prevented the injury, the law considers the failure to use such means as the immediate cause, and will permit a recovery, notwithstanding the injured party was guilty of contributory negligence.
On account of the prominence given in the charge to the doctrine that appellants could not recover, if guilty of contributory negligence, unless the injury was inflicted willfully, wantonly or maliciously, we do not think it likely that the jury understood poragraph ten to be a qualification of the doctrine before announced and emphasized, though doubtless so intended by the court.
We think that when it becomes necessary, in a charge to a jury, that a doctrine given should be limited or qualified, that the
In paragraph thirteen, the court, after charging that if by failure of the street car company to employ skillful and prudent drivers, any one is injured, that the company is liable, further charges that the fact that a driver might have been at other times careless or imprudent, would not render the company liable in this action, unless on the occasion of the injury sued for, such driver was careless, reckless or imprudent. While the proposition embodied in this charge may be sound logic, still it is argumentative, and improper to be given in charge to a jury by a court.
The evidence was conflicting as to whether the driver was negligent on this occasion, and his negligence on a former occasion, if such was proven, was a circumstance to be considered by the jury, with the other evidence in the case, in determining: his negligence. Parties are, under the laws of this State, entitled to have juries consider all evidence submitted to them without any suggestion or comment whatever from the court. The-.statute contemplates that such legal propositions, and such only as are applicable to the facts of ..the case, should be submitted by the court to the jury in language and terms suited to their capacity, and the jury should be left to determine the facts, unbiased by any intimation of the court as to the weight of the evidence.
A number of rulings in reference to the admission and rejection of testimony are assigned as erroneous, but it is not deemed necessary to notice any, except two. The court, over an objection that the evidence was immaterial and did not confine the investigation to the occasion of the injury, permitted defendant to prove that other boys than the plaintiff had been in the habit of jumping on the cars and rocking and scaring the mules The objection should have been sustained. The testimony was clearly inadmissible, and was calculated to distract the attention of the jury from the true issues of the case. During the
For the errors indicated we think the judgment should be reversed and the cause remanded.
Beversed and-remanded.